DESPITE the enormous power of the judiciary as one of the three branches of power in society, judges are seriously constrained in their area of operations. This restriction is a priceless point that all humans, whether educated or layperson should permanently internalise.
A judge’s jurisdiction extends only to what the constitution and the national body of laws stipulate. The judiciary interprets societal impulses based on actions that are in compliance with the constitution and the body of laws.

A president or a prime minister has no power to make a decision that is in violation of the constitution or statutes. While in power, the courts overruled President Granger several times for decisions that were not in accordance with constitutional guarantees.
The judiciary, as the third branch of power, is thus confined to one area of societal life. The legislature is allowed by the constitution to make laws once they do not conflict with the constitution. It is important at all times that society allows for the independence of the legislature to make laws and for the executive to initiate policies once those policies do not derecognise the constitution or infringe on the nation’s laws.

The legislature and the executive consist of elected actors that must be allowed to govern without restriction by the judiciary. If society did not allow for the separation of powers, then the will of the electorate becomes a mockery.
If a law or a policy is laughable or repugnant or dangerous, once it does not collide with the Just, one example should suffice. If the government announces that all female walkers on the seawall esplanade must not wear high-heels, then in what ways is that a violation of the constitution? As it stands, a high school graduate must have Mathematics and English to enter the public service or UG. That cannot be challenged in court.

We come now to Justice Kissoon’s ordering a private company on how much money it must set aside in the event of an oil spill. The group I referred to as the usual suspects and a few politicised civil society groups argued after Justice Kissoon’s decision that the ruling does not cost Exxon one cent. It is a guarantee of unlimited coverage that Exxon must agree to.

They are right. Exxon does not have to find even one cent. Exxon simply has to put pen on paper agreeing to unlimited insurance. The problem arises because the constitution and the body of laws in Guyana do not give the courts the jurisdiction to tell a government, an individual or a company how much it must spend in a transaction.

Justice Kissoon’s decision in my opinion violates the sanctity of private property. This must be understood and not be confused with the collapse of Guyana should there be an oil spill. If there is an oil spill here, one shudders to think what will happen. But despite that frightening thought, the constitution and laws of Guyana still offer individuals and companies the right to run their business as they see fit.

If Exxon did not agree to Justice Kissoon’s ruling then Exxon’s permit would have lapsed. The courts should not have the jurisdiction to stop a foreign investment venture once its operations do not conflict with the laws. That is judicial excursion into the arena of policy-making. We may not like the company but its retention is a government decision not the courts’

What Justice Kissoon’s decision involved was a dictate to a company of how much it must spend in a particular area. The courts do not have that latitude never mind that the judge and the litigants and Guyana as a whole must be obsessed with the imagination of what an oil spill must bring.

It must be remembered at all times in analysing the courts’ decision that the litigants brought the case on the fear of what may happen if there is an oil spill. The litigants never argued that the limited insurance by Exxon was a violation of the constitution.
The implications of Justice Kissoon’s decision will be far-reaching if the court of Appeal or the CCJ does not reverse it. A simple example is in order. Let us say that a company comes to Guyana and it orders a fleet of cars for its operations.

A concerned citizen then takes the company to court asking that the brand of cars be changed because they are unreliable. The litigant wants another maker. Simply put – the courts cannot tell the company what types of vehicles it must use. Justice Kissoon’s decision is one I disagree with.