AG says CJ’s ruling of enforcing Judicial Review Act might be appealed

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Attorney General (AG) and Minister of Legal Affairs Basil Williams, has hinted via a press release from his Ministry that they might appeal the High Court ruling compelling him to enforce the Judicial Review Act by July 31, 2018.

Former Attorney General Anil Nandlall and current AG Basil Williams

Asserting that the acting CJ Roxane George-Wiltshire’s ruling was “premature” the statement from the Ministry goes on to outline that ” The Parliament vested the power upon the Minister as a member of the Executive arm of the Government to determine the commencement of the Judicial Review Act. There has been no willful or malicious failure or refusal by the Attorney General to commence the Act as alleged in the case brought before the Court. The Attorney General is persuaded that opportunity and consideration ought to give to the Executive to set a reasonable date for the commencement of the Judicial Review Act given that 8 years has passed since the passage of the Act.”

According to the AG Chambers “The decision of the Court raises some important questions regarding governance and the separation of powers between the executive arm of the government and the judiciary. First, can the judiciary govern?  Second, can the Judiciary order the Government to create law? Third, can the Judiciary direct the current Government to implement an Act that the PPP-C government deliberately failed to implement during its time in office.”

Touching on the issue of separation of powers the statement goes on to quote from the President Elect of the Caribbean Court of Justice (CCJ) Justice Adrian Saunders who spoke on the roles and function of the Judiciary.

Moreover, the AG Chambers outlined that “The Judicial Review Act was not dependent upon the passing of the Civil Procedure Rules 2016 as argued before the Court and it does not negate the fact that the former Attorney General refused to bring the very Act into law, which he now argues must be brought into law. Moreover, the reference to “rules of Court” in the Act contemplated rules that were already in force as there was already provision in the law for claims for judicial review.”

It was also highlighted that the decision “presents a great opportunity for the Caribbean Court of Justice to answer these serious questions of governance and the separation of powers.”

In December of 2017, the CJ had granted an Order Rue Nisi of Mandamus, directing the Williams to show cause why the said Order Nisi should not be made absolute.

After reviewing all the affidavits files by both sides and legal arguments, Justice George-Wiltshire on Monday last made the Order Rule Nisi absolute and directed the Legal Affairs Minister to bring the Judicial Review Act into force.

The National Assembly passed the Bill and it was assented to by the then President Dr Bharrat Jagdeo 2010. However, it was never operationalised.

Attorney-at-law and former Attorney (AG) Anil Nandlall, had moved to the court to determine; whether the Minister had discretion to bring into force the Judicial Review Act (JRA) after the promulgation of Civil Procedure Rules; whether the Minister had a duty to issue the order to bring into force the JRA; whether the Court can compel the Minister to fulfill his duty.

In addressing the first issue, the Chief Justice examined the relationship between the JDA and the Civil Procedure Rules (CPR) and noted that the CPR expressly mentioned that the Judicial JRA contained the procedures by which remedies can be accessed under the Act.

The acting CJ also took into consideration the Hansard, which evidenced the fact that the JRA was unanimously passed. Its importance was endorsed by both the Applicant and the Respondent in the House. It was also recognised in the debates that the Act will come into force with the CPR.

Having outlined the importance of the JRA the Court considered the time frame which would have been reasonable for the Minister to exercise any discretion he had. The Respondent had claimed that the Presidential Legislative Agenda did not take into consideration the enforcement of the JRA.

The Court rejected this argument and concluded that the CPR was promulgated since 2010, and that the present Government was in power and that 3 years now and yet failed to bring the Act into force, notwithstanding, that the Respondent was called upon, in writing to do so, by both the Applicant and the Guyana Bar Association.

The Court accepted the applicant’s submission that when the CPR came into force, the discretion which the AG had to bring the Act into force was transformed into an obligatory duty and the Respondent failed to discharge this duty.

The Chief Justice also considered the AG’s submission that the Court would be breaching the separation of powers doctrine if it were to mingle in the affairs of the legislative and executive.

However, the Court made it clear that the JRA had been assented to already which meant it had passed the stage of the legislative arm. Further, that in a situation where the Minister failed to perform his duty, the Court is empowered to compel the said Minister to perform his duty.

The Court cited a number of legal authorities to support the conclusions reached. The Court ordered Williams to pay to the applicant $100,000 in cost.

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