The Bar Council of the Bar Association of Guyana said it welcomes the decision of acting Chief Justice (CJ) Roxane George-Wiltshire in the matter of Mohabir Anil Nandlall v The Minister of Legal Affairs, Action No. 2017-HC-DEM-CIV-FDA-1874 compelling the implementation of the Judicial Review Act.
The Bar Council notes that the implementation of the Act fills a lacuna in the new Civil Procedure Rules (CPR) 2016, which contains procedure contemplating remedies under the Act.
According to the Association, “In the absence of this Act, litigation in this vital area of the law has been stymied and fraught with a number of procedural hurdles some of which were laid bare in the recent CCJ’s ruling in the case of The Medical Council of Guyana v Jose OcampoTrueba, CCJ Appeal No. 2018/001, where the Honourable Court declared that prerogative remedies were no longer available in Guyana.”
The Bar Council said it raised the matter of “urgently” implementing the Act with incumbent Attorney General Basil 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.”
In December of 2017, the CJ had granted an Order Rule Nisi of Mandamus, directing the Williams to show cause why the said Order Nisi should not be made absolute.
After reviewing all the affidavits filed 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.
Williams, via a release from his Ministry, has since indicated that he might appeal the High Court ruling compelling him to enforce the Judicial Review Act by July 31, 2018.
According to Williams the ruling was ‘premature’ and among other things “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.”
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 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.
The Bar Council in a statement on Thursday said it looks forward to the speedy implementation of the Act.