Dear Editor,
The Parliamentary Opposition along with other aligned commentators and writers, have raised the concerns that the Petroleum Activities Bill confers sweeping powers to the Minister. Specifically, in the Peeping Tom column of the Kaieteur News edition of August 17, 2023, the author argued that the powers vested in the Minister therein, seems to conflict with the Constitution.
To this end, Peeping Tom cited Article 115 of the Constitution, and sought to make the argument that that Article 115 “limits the role of the Minister, responsible for any department of government, to exercising general direction and control, a euphemism for making policy. It is trite law that parliament may limit the exercise of powers which are conferred on a Minister but cannot expand these beyond the boundaries provided by the Constitution”.
Editor, this statement prompted me to consult with Article 115 of the Guyana Constitution to confirm the correctness of Peeping Tom’s argument and citation. In so doing, it would appear that Peeping Tom’s interpretation, application and argument altogether were very poor. Contrary to Peeping Tom’s interpretation, Article 115, based on my understanding, has nothing to do with limiting the powers of the Minister.
In fact, to understand the fullness of Article 115, one has to read, study, and comprehend Articles 99–122, which constitute Chapter X of the Constitution that speaks to the Executive arm of the State. In so far as Article 115 is concerned, this Article establishes the function of permanent secretaries. In this regard, Article 115 states the following: “Where the President or any Minister has been charged with the responsibility for any department of Government, he shall exercise general direction and control, the department shall be under the supervision of the permanent secretary, whose office shall be a public office: Provided that two or more government departments may be placed under the supervision of one permanent secretary.”
My layman understanding of Article 115, therefore, is that it simply sets out the supervisory authority and / or function of permanent secretaries, and that the Minister has general direction and control for the ministry or department he/she has responsibility for under his/her portfolio. Further, the Minister’s responsibility of general direction and control are in respect of the administrative management of the ministry.
Having said that, Article 99 (1) of the Guyana Constitution establishes the Executive Authority of Guyana, which states that: “The executive authority of Guyana shall be vested in the President and, subject to the provisions of this Constitution, may be exercised by him either directly or through officers subordinate to him”. Additionally, Article 99 (2) goes onto state that – “Nothing in this Article shall prevent Parliament from conferring functions on persons or authorities other than the President.”
My non-legal interpretation of the above provisions in the Constitution is such that the Minister, who is a subordinate to the President, is part of the Executive authority, and according to Article 99 (2), Parliament has the authority to confer functions and authorities to persons other than the President.
In this case, the Minister is regarded as such a person. Hence, the powers / authority vested in the Minister, viz-a-viz, the Petroleum Activities Bill, are well in order and in keeping with the Constitution. Moreover, Article 106 of the Constitution establishes the Cabinet which shall consist of the President, Prime Minister, the Vice Presidents, and such other Ministers as may be appointed to it by the President. Article 106 (2) states that – “The Cabinet shall aid and advise the President in the general direction and control of the Government of Guyana and shall be collectively responsible therefor to Parliament”.
Emphasis on Article 106 (2) which establishes that the Government of Guyana, comprising the Cabinet shall be collectively responsible to Parliament. This means that the Minister, despite the powers imposed in him by the Act, is not solely responsible or he does not operate in isolation from the collective Executive arm of Government and the Cabinet. In other words, the powers vested in the Minister through the Act, the exercise of those powers rest with the collective responsibility of the Executive Authority of the State or the Cabinet.
The last point I wish to make is in relation to the sector being managed, inter alia, an a-political framework. That framework is being described as the need for a Petroleum Commission to be designed in such a manner.
However, it is important to distinguish the management functions of the sector versus the regulatory functions. The Petroleum Commission, which once established will function as a regulatory body.
Indeed, the composition of the Petroleum Commission should be independent of political inference or the Executive. However, the management responsibility for the sector is a function of the Executive.
Yours respectfully,
Joel Bhagwandin
