LETTER: Judicial Review

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Dear Editor,

Judicial Review is that area of the law which allows for a citizen who is aggrieved by the act or omission of any public officer, including Ministers of Government, any public authority or any statutory tribunal to challenge the said act or omission on the ground that the act or omission is unlawful/illegal/contrary to some written law, including the Constitution/arbitrary/capricious/discriminatory/in breach of natural justice/ultra-vires/in breach of one’s legitimate expectations.

In short, it is that area of law which guards against abuse of power. The High Court is resided with a special jurisdiction to review the act or omission complained against and to strike it down or to compel the performance of a public or statutory duty in the face of a refusal or neglect to do so.

Mohabir Anil Nandlall

Expectedly, with the democratic breeze blowing across the free world, it has been the fastest growing area of the law in the English Speaking Commonwealth. It is pivotal to the attainment of good governance and public accountability. It is for this precise reason that a specialized Constitutional and Administrative Law Division was established in the High Court in 2011 to, exclusively, hear and determine these types of matters along with those in which constitutional violations are alleged.

In Guyana, Judicial Review found expression over the last century through the medium of the ancient Prerogative Remedies of the Writs of Certiorari, Prohibition and Mandamus. In this regard, Guyana lagged behind most of the Commonwealth who have long abolished these anachronistic Prerogative Orders and replaced them with a statutory regime of more efficacious remedies. Although belatedly, Guyana followed suite in 2010, when Parliament, unanimously, enacted the Judicial Review Act, No. 23 of 2010. As a result of its late arrival, it is one of the more modern legislative expressions of Judicial Review in the Commonwealth. However, the Judicial Review Act provides that the rules of procedure in respect of how the Court is to be approached by a litigant to access remedies under the said Act are contained in the “rules of Court”. Any person familiar with this area of the law will know that the “rules of Court” referred to thereof is the new Civil Procedure Rules, since the “rules of Court” which were extant at the time, made no provisions whatsoever for judicial review applications.

Since the new Civil Procedure Rules were not in force in 2010 when the Judicial Review Act was passed and the then rules of Court were silent on the issue, a provision was inserted in the said Act to say that the Act shall come into operation on a date appointed by order of the Minister. This was specifically done to await the promulgation of the new Civil Procedure Rules, which as I said, contained the procedure for judicial review applications. The new Civil Procedure Rules only came into operation on the 6th of February, 2017. This was not as a result of any fault of the Executive. However, to date, the subject Minister, the Minister of Legal Affairs, has failed, refused or neglected to bring the Judicial Review Act into operation, despite being requested to do so.

As a result, although the new Civil Procedure Rules provide for it, judicial review is not available to a litigant in Guyana. In the circumstances, lawyers have been forced to become creative by making applications for the old Prerogative Remedies under the new Civil Procedure Rules, since the old rules of Court under which those remedies could have been applied for have been overtaken by the new Civil Procedure Rules. Legal proceedings filed under such dubious circumstances are fraught with unnecessary procedural hurdles and hiccups.

Since the 6th day of February, 2017, I wrote to the Minister of Legal Affairs calling upon him to rectify this anomaly by issuing the requisite order to bring the Judicial Review Act into operation. I have received no response to my letter. Subsequently, I drew this serious matter to the attention of the Chief Parliamentary Counsel and requested him to advise the Minister of Legal Affairs to correct this lacuna, as is my responsibility as a Member of Parliament. Unfortunately, my efforts have been futile. I have done my part.

In the meanwhile, the circus continues at Lot 95 Carmichael Street.

Mohabir Anil Nandlall

Attorney-at-Law, MP

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