Op-Ed: The Judicial Review Act: a struggle for good, accountable and transparent Govt

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Below is an opinion piece by former Attorney General, Attorney-at-law and Member of Parliament Mohabir Anil Nandlall:

Judicial Review is that branch of the law which empowers the Judiciary to examine the actions, decisions and omissions of public officers (including Ministers of the Government), public authorities and statutory bodies, in order to determine whether they acted intra vires their powers, lawfully, reasonably and in accordance with the rules of natural justice; the Courts are empowered to quash decisions and actions which are capricious, unfair, ultra vires, unlawful, unreasonable and in violation of natural justice; the failure to perform duties will attract a court order compelling the performance of those duties. In short, Judicial Review is the most lethal weapon of the remedial armoury of the law, in the hands of the citizenry, to ensure lawful, good and accountable governance and fair public administration.

Fertilized by the democratic wind blowing across the common law world, no other area of the law has grown so exponentially over the last 60 years. That in 2018, the Attorney General of Guyana is resisting the implementation of a modern Judicial Review Act (JRA), unanimously passed by our Parliament since 2010, is an outstanding testimony not only of his authoritarian mentality but that of his entire Government. Hitherto the Act, Guyana’s judicial review law and procedure is over a century old. The prerogative writs procedure, which still obtains in Guyana, was abolished in England before World War II and replaced with a Judicial Review Act. The same took place in the Caribbean decades ago. The greatest attribute of the judicial review legislation is that it empowers the Court to grant a wide array of remedies, including, compensation and injunctions, in addition to the ancient prerogative reliefs. Only those who do not believe in accountable democratic government and fears public scrutiny and transparency would obstruct legislation of this type.

It is common knowledge, that on the 6th February 2017, I wrote the Attorney General to bring the Act into force when the Civil Procedure Rules (CPR) were promulgated. He refused. The Guyana Bar Association’s similar request was also refused. In my own name, I launched proceedings compelling the Attorney General to bring the Act into force.

Rather than complying, he defended the proceedings. On the 28th May 2018, Chief Justice George compelled the Attorney General to bring the Act into operation on or before 31st July 2018.

Again, rather than comply, he appealed, on the 13th June 2018, to the Court of Appeal. On the 17th July 2018, he applied to the Court for a stay of execution of George CJ pending the Appeal. This application was heard by Justice of Appeal Rafiq Khan. Again there were detailed submissions from both sides. Again, on the 11th of August, 2018, the Court handed down a 15 page written ruling dismissing the application and awarded costs against the Attorney General in the sum of $150,000. I should mention that the Attorney General’s chambers owes my office in excess of $2M in court costs awarded for cases lost.

Separation of powers

In the course of his Judgement, like Chief Justice George, Justice of Appeal Khan, resoundingly rejected every contention advanced by the Attorney General. It is worth sharing some of the learning imparted by Justice of Appeal Khan, on issues which arises regularly in political discourses, for the guidance of the lay public.

In rejecting the puerile contention that it would be a breach of the separation of powers doctrine for the Judiciary to compel the Executive to act, Justice of Appeal Khan said:

“In my considered opinion and I so hold, what we have in this case is the frustration and obstruction of the legislative arm of government in carrying out its constitutional mandate of making laws for the peace, order and good governance of Guyana, by a member of the executive who reflexively seeks refuge in a rigid and anachronistic interpretation of the doctrine of separation of powers long discarded by modern constitutional law thinking and concepts of good governance and democracy. It is also apparent that the executive seems to be obstructing itself. The executive in the form of the President assented to the JRA. The Applicant, who is both a Member of Parliament and part of the executive, is resistant to bringing the JRA into operation. This is not a satisfactory state of affairs.

The Courts are duty bound in the discharge of their constitutional and inherent mandate to step in to ensure that such obstructionist and frustrating actions are put right and not permitted to erode our fragile democratic existence, system of governance and the rule of law.

For these reasons I hold that the separation of powers argument advanced on behalf of the Applicant has no reasonable prospect of success in the circumstances of this case.”

duty bound

The next submission advanced by the Attorney General was that the JRA gave him the sole discretion when to make the Act operational and that the Court cannot compel him to exercise that discretion. Another deeply flawed contention. The Court dealt with it, thus:

“In passing the JRA unanimously with the exuberant support of the Applicant himself, Parliament did not intend the Act to sit unimplemented, languishing indefinitely in some dusty volume of the Laws of Guyana. Parliament passed the JRA for the peace, order and good governance of Guyana and intended it to become a vibrant tool in the development of our democracy, system of governance and to entrench the rule of law by supplying to members of the public who have complaints against administrative authorities a new array of remedies and procedures not previously available to them and to modernise the whole system of administrative remedies by bringing it into line with that which now exists not only in the Commonwealth Caribbean but in the Commonwealth as a whole.

So the Applicant is duty bound by Section (1) of the JRA to make it operational and he is accountable to the people of Guyana through their representatives in Parliament for the implementation of the Act. The uniquely innovative, optimistic and all together well-meaning solution provided by the CCJ in the Ocampo case has not had its desired effect as significant confusion and uncertainty still reign due to the continued non-implementation of the JRA. The use of the imperative word “shall” in Section (1) of the JRA makes clear Parliament’s intention that the Minister is obliged or duty bound to bring it into operation.”

While the application for the stay of execution is dismissed, the appeal remains pending. However, an appeal does not operate as a stay of the judgment appealed against. Therefore, currently, the Attorney General stands in contempt of the Chief Justice’s order. If the violation continues, contempt of court proceedings will be launched. That the head of the Bar and the legal advisor of the Government of Guyana is presently in contempt of Court, is by itself, a travesty.

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