Following the acting Chief Justice’s ruling compelling the Attorney General (AG), Basil Williams to bring into force the Judicial Review Act by July 31, 2018, after being taken to court by his predecessor People’s Progressive Party (PPP) Executive Anil Nandlall, the Government has now filed an appeal.
According to the document seen by this online publication, it was stated that the Appeal is made necessary since “there are serious issues raised in the appeal of judicial interference with the powers of the executive and the Court by its decision on the 28th May, 2018 has attempted to govern from the bench and to usurp the power which was explicitly vested in the Minister of Legal Affairs in breach of the doctrine of the separation of powers.”
Williams in his appeal outlined that the Chief Justice (CJ) Justice Roxanne George-Wiltshire “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” and that she “by her actions aforesaid usurped the discretion vested in the Minister of Legal Affairs, by the legislature to bring into force a legislation, which had no time line and which was clearly within his purview to so do.”
In addition, the appeal states that the CJ committed a specific illegality when she failed to apply the overriding objective of the New Civil Procedure Rules (CPR) to deal with cases in the interest of the parties just and when she ruled that Applicant/Appellant had breached a duty by not bringing the Judicial Review Act into force.
“…the Honourable Chief Justice erred and misdirected herself in law when she found that the Applicant/Appellant did not have discretion in the commencement date of Judicial Review, after the Civil Procedure Rules came into force.”
According to the AG, “systems have to be put in place for stakeholder consultations and training and steps are being taken for the review and amendment of sections of the Judicial Review Act since the Act in its present form provides for there to be no requirement to first obtain leave or permission to commence a claim for judicial review.”
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 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 because the CPR were not promulgated.
Former Attorney General 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 JRA and the Civil Procedure Rules (CPR) and noted that the CPR expressly mentioned that the 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. Williams 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 2017, and that the present Government was in power over 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 Nandlall’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 Williams’ failed to discharge this duty.
Moreover, 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.
Moreover, the Bar Council of the Guyana Bar Association welcomed the ruling by the CJ compelling the implementation of the Judicial Review Act.
The Bar Council said it raised the matter of “urgently” implementing the Act with Williams on multiple occasions since it is of “vital importance to good public administration in a democratic society, allowing citizens ample remedies against the State and leveling the playing field.”
Williams however, is seeking an early date for the hearing and determination of the Notice of Appeal.