Op-Ed: Time to rally around the Judiciary

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

In a State in transition to authoritarianism, it is the Judiciary that must stand as the bulwark to prevent the completion of that transition. The Guyana Judiciary is currently so circumstanced. On an almost weekly basis, its independence is tested. Its mettle is challenged. Thus far, it has firmly stood its ground. The latest exhibition was witnessed a few days ago through its Chief Justice, who delivered an erudite judgement, at the end of which an Order was directed to the Minister of Legal Affairs to bring the Judicial Review Act (JRA), into force. The Court found that the Minister has an “obligatory duty” to do so which he had abdicated.

On 21/10/2010 the National Assembly unanimously passed the Bill. On 2/11/2010 it received Presidential assent. The current Minister of Legal Affairs was in the Opposition. He lauded the Bill, highlighting its grave importance to good public administration, accountable governance and the remedies it granted to prevent, curtail and rectify abuse of power in public office. I tendered the Hansard of the speeches to the Court.

The singular reason why the Bill was not operationalised at that time (and before May 2015) was because the Rules of Court, in forced then, were silent on judicial review and the procedure by which judicial review is to be applied for and the remedies which the Act provides were to be accessed, are contained in the new Civil Procedure Rules (CPR), which were then in draft. As a result, the draftsman resided a power in the Legal Affairs Minister to bring the Act into force by an Order, when the CPR is promulgated. The CPR was promulgated in February 2016. Despite my and the legal professions’ best effort, the Legal Affairs Minister, obstinately, refused to bring the Act into force. Hence the legal proceedings to compel him to do so.

The major contention advanced by the Attorney General (AG), in the Court was that since the Legislature vested the power to bring the Act into operation, in the Minister, a member of the Executive, were the Court to compel the Minister to bring the Act into operation, the Court would be abrogating the doctrine of separation of powers. It is simply tragic that such an argument would come from the leader of the Bar!

Justice Nareshwar Harnanan 

The legal truth is that the statute books of the British Commonwealth territories are replete with legislation by which Parliament has imposed duties, powers, and discretions on Ministers, other Executive Officers, Public Authorities, and other functionaries forming part of the Executive Government. From time immemorial, the High Court has been vested with a supervisory power to compel them to perform their statutory duties, or exercise their powers, or discretion when they fail to do so, or, to quash and set aside the exercise of their powers or discretions or decisions when they act unlawfully. Indeed, this is the very raison d’être of the Judicial Review jurisdiction of the Court.

This hopelessly flawed contention was advanced quite recently by the AG in the case of Mohabir Anil Nandlall v the Minister of Legal Affairs et al., 2017-HC-DEM-CIV-FDA-78. In this case, the Minister of Legal Affairs had refused to appoint a Governing Board and other officers of the Deeds and Commercial Registry Authority under the Deeds and Commercial Registry Authority Act. An Order or Rule Nisi of Mandamus was directed to him calling upon him to show cause. Many of the arguments advanced in the written submissions in these proceedings by the Attorney-General, were advanced in that case. In a reasoned judgment, Justice Nareshwar Harnanan soundly rejected every one of those arguments with supporting authorities.

The next contention advanced by the Respondent is that “the date of commencement of the Act is to be set in accordance with the legislative agenda of the Government of Guyana as determined by Cabinet.” Again, the Court was burdened with an argument which makes very little sense in law. This Act is already passed by the Legislature and assented to by the President. It has absolutely nothing to do with Cabinet and the Government’s Legislative agenda. Parliament reposed a power in the Minister of Legal Affairs to bring the Act into operation, simply, by an Order. Parliament did not impose that obligation on the Government or the Cabinet.

The AG also argued that this “legislative agenda is presented by His Excellency, the President at the opening of every session of Parliament.” The President does no such thing. Moreover, if he did it is wholly irrelevant to this matter.  In any event, this Act was passed by a previous Government and by a previous Parliament.

Errant executive officer

These and many more similar vexatious arguments were advanced by the Attorney General. They were all roundly rejected by the Court with supporting authorities. Expectedly, the Attorney General needs someone to blame. On this occasion, he could not blame me. The Judge became the victim.

Judges cannot defend themselves in the press against public onslaught. It is the responsibility of the citizenry to defend and protect its Judges from abuse, moreover, when Judges come under scurrilous attacks for giving decisions, which enhance the public good. In a Public Statement, the Attorney General has not only attempted to embarrass the Judge, but has clumsily interlaced political arguments, in his attempt to drag the Judiciary into the arena of partisan politics.

I take this opportunity to condemn the untutored verbosity of the AG in that Public Statement. Our Judiciary must operate in an environment that is conducive to the flexing of its independent muscles. Our Judges must function fearlessly. Our Judges must never harbour the apprehension that their rulings will attract any form of reprisal. It is our collective responsibility to ensure that our Judiciary is secured by that impenetrable cloak of protection.

In his Public Statement on the Chief Justice’s ruling, the Attorney General asks three questions. I will take the liberty of answering them.

Firstly, can the Judiciary govern? The answer is yes. It is indeed an arm of Government – not the Executive arm – but the Judicial arm. It is this arm of Government, which ensures that the Executive obeys the laws of the land and does not abuse its powers; that the Constitution is obeyed; that the rule of law is maintained and that Parliament enacts laws for the good of the people and in compliance with the Constitution.

Secondly, can the Judiciary order the Government to create law? The answer is no. However, the Chief Justice did no such thing in this case. All that the Chief Justice did was to order an errant Executive Officer to perform his legal duty and bring into force a law already enacted by the Parliament. This recalcitrant Public Official was holding the will of Parliament at ransom. The Judge had every power and indeed a duty to rectify that unlawful situation.

Thirdly, 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? This case had nothing to do with which party is or was in Government. The Judge made that very clear. The Judge also made it very clear that the Act could not be brought into force before the CPR was promulgated. The case had to do with a delinquent Legal Affairs Minister, who failed to discharge a duty, which the law devolved upon him.

The President

In his statement, the Attorney General concocted an argument, which was never advanced before the Court, that is, “Cabinet needed an opportunity to engage in wide consultations with the Guyanese people before bringing the Act into law.” This is highly technical piece of legislation, designed only for the legal profession and does not require any form of consultation with the wider populace. The Cybercrime Bill does.Yet there is no such consultation.

This Act is the most modern of its kind in the Caribbean. Yet, the Attorney General argues that it needs to be reviewed “to bring it in line with established regional and international best practices” – nonsense! No such deficiencies were mentioned in his submissions before the Court. He would have been requested to identify them. This is another manufactured excuse.

Significantly, in a Freudian fashion, the Attorney General conceded the reason for not bringing Act into force. He says, “The PPP/C refused to pass the Act to prevent the Opposition and litigants from making claims under the Act which would give them a wide range of reliefs including compensation for damages.” This is the real reason why he refused to bring the Act into force, but he blames it on the PPP, as usual. Only an authoritarian Government will not want its actions to suffer the scrutiny of the ordinary man.

The President started the disrespect of our Judges, when he remarked of the Chief Justice, “she is entitled to her opinion”. The AG took his cue and verbally assaulted Justice Frank Holder in open court. Now this. I hope that the lawyer’s associations will not remain silent. They have a duty to speak.

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