2010 Judicial Review Act….Appeal Court dismisses AG’s case

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Former Attorney General Anil Nandlall

The State was on Thursday ordered to pay $150,000 in court costs by the Appeal Court following Attorney General Basil Williams’s unsuccessful bid to continue refusing to comply with the order of acting Chief Justice Roxane George that the AG must bring the Judicial Review Act (JRA) into force.

The Appeal Court’s decision was handed down by Justice Rafiq Khan, who dismissed an application that Williams filed to stay the execution of Justice George’s decision, which compelled the AG to enforce the Act by July 31, 2018.

Applicants Solicitor General Kym Kyte and Deputy Solicitor General Debra Kumar appeared for the State while Attorney Anil Nandlall was the respondent. After Justice Khan’s decision was announced, Nandlall explained that if Williams continued to refuse to comply with the acting Chief Justice’s order, contempt of court proceedings would be filed against the AG.

Attorney General Basil Williams, SC

According to the facts of the case, the National Assembly passed the Bill and it was assented to by the then President Bharrat Jagdeo since 2010. However, it was posited that the then Government never operationalised the Act, because the Civil Procedure Rules (CPR) were not put into effect. The CPR came into effect in 2017, but the JRA was still not implemented by the current AG.

Former Attorney General Nandlall had moved to the court to determine: whether the Minister had discretion to bring into force the JRA after the promulgation of CPR, whether the Minister had a duty to issue the order to bring into force the JRA, and whether the Court can compel the Minister to fulfil his duty.

In December 2017, the acting Chief Justice had granted an Order Rue Nisi of Mandamus, directing Williams to show cause why the said Order Nisi should not be made absolute. Williams later mounted an appeal on June 13, 2018, having noted that there were serious issues regarding “judicial interference” with the powers of the Executive and the Court by the May 28, 2018 decision. He contended that the Judiciary attempted to govern from the bench and to usurp the power which was explicitly vested in the Legal Affairs Minister which he said was in breach of the doctrine of the separation of powers.

In Williams’s appeal, which Justice Khan has rejected, he had outlined that acting Chief Justice George had “committed a specific illegality when by her ruling she purported to dictate to the Minister of Legal Affairs her own timelines to bring the Judicial Review Act into force in contravention of the doctrine of separation of powers and as such, exercised his discretion”.

In addition, the appeal posited that the acting CJ committed a specific illegality when she failed to apply the overriding objective of the new CPR to deal with cases in the interest of the parties just and when she ruled that the applicant/appellant had breached a duty by not bringing the JRA into force.

In his decision, Justice Khan reasoned that while there was separation of powers, the three arms of Government do not exist in separate bubbles. He highlighted that when Bills are passed in Parliament and are assented to, they become part of Guyana’s laws. The Appellate Judge noted that the JRA would seek to modernise the “archaic” Crown Office system and harmonise it with systems and procedures of the Caribbean Community (Caricom).

The Court explained that it would be sensible to explain that the JRA was not enforced owing to CPR not being in place, but this was no longer the case. Justice Khan also observed that the applicant, the AG, did not explain how he would have suffered “irreversible hardship” if a stay was not granted. The Judge surmised in the case disposal that the applicant did not satisfy the Court that his appeal has any reasonable prospect of success.

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