The Ministry of Legal Affairs’ recent declaration that the Judicial Review Act (JRA) will not be operationalised until consultations are held and amendments are made is a direct violation of an order of the court, according to attorney Anil Nandlall, who yesterday said that he will be filing contempt proceedings before the end of the week.
Attorney General (AG) Basil Williams SC last Thursday lost his bid to hold off the operationalising of the JRA. In addition to an appeal challenging an order issued by Chief Justice (ag) Roxane George SC compelling him to bring the law into force by July 31st, he had filed an application asking for the order to be stayed pending the outcome of the appeal. However the Court of Appeal dismissed the application for a stay, while pointing out that he (Williams) appeared determined to obstruct persons from accessing a greater range of public law remedies.
However, in a press release on Saturday, two days after appellate judge Rafiq Khan SC dismissed the application, the Legal Affairs Ministry said that it intends to follow best practices and consult with stakeholders before the implementation of the Act. The release stated that “these consultations will ensure that improvements and amendments be made to cure existing lacunas in the current Judicial Review Act and to bring it in line with established regional and international best practices such as those highlighted by the CCJ … in the recent case of The Medical Council of Guyana-v-Jose Ocampo Trueba.”
Nandlall first moved to the court on December 7th, 2017, when he filed proceedings in the High Court asking for an order or rule nisi of mandamus directed to Williams, compelling him to bring the act into operation by ministerial order and that he be called upon to show cause why the order should not be made absolute.
In her ruling, which was delivered in May, Justice George found that Williams had a duty to have already brought the legislation, which is intended to work in tandem with the Civil Procedure Rules (CPR), into effect.
Among other things, the Chief Justice noted that with the CPR enforced, it was thereafter for the Minister of Legal Affairs to have also brought the JRA into operation, irrespective of which government is in power.
Justice George declared that Williams would have breached his duty by not bringing the Act into force, while noting that no excuse had been given and the delay on his part could only have been seen as a refusal to operationalise the law.
Williams would later describe Justice George’s ruling as “premature.” On June 13th, 2018, Williams filed an appeal of the decision and subsequently, by way of a summons, dated July 17th, 2018, he applied for a stay of execution pending appeal.
In its release, the Ministry blamed the former PPP/C government for the non-implementation of the Act.
Reminding that Williams had previously refuted all allegations of willful refusal to operationalise the Act, the release explained that in 2010 there were no stipulations that the Act is by any means contingent on the existence of the CPR. Section 3(1) of the Act provides that an application for judicial review shall be made “in accordance with this and with rules of court.” The Rules referred to in the Act are the rules that were, at the time, in force and did not expressly or impliedly refer to any rules of court to be made as alleged by the PPP/C and their allies, the release said.
“The PPP/C’s arguments surrounding the issues of enforcement of the Judicial Review Act are misleading. The hypocrisy of the PPP/C is palpable since evidence is clear that that the refusal of implementing the Act lies with the PPP/C since they had 5 years to act on behalf of the people of Guyana, from 2010-2015. The PPP’s aim is clear, as they are using the issue at hand as a political tool and the people must be extremely cautious of the political propaganda of the PPP/C and the information being peddled in the press,” the release said.
The Ministry, reiterated that the Act “was not dependent” upon the activation of the CPR as argued before the High Court and it does not negate the fact that the former Attorney General and Minister of Legal Affairs refused to bring the very Act into law, which he now argues must be brought into law.
“This current government and its ministers are not shielded from by any law as alleged by the PPP/C and their allies,” the release said while adding that the remedies for judicial review of State and government actions are still available to litigants, as there are many cases that were brought forth against the current Attorney General.
Why now?
In responding to the pending amendments, Nandlall questioned why Williams waited until now to pursue this.
“It is the unqualified and unconditional duty of every person to whom a court order is directed to obey that court order even if they think that the order is wrong. This government took office in May 2015. Three years have since passed. The Attorney General didn’t see it fit for those three years to proffer any amendments to that Act in the National Assembly. Now that he is being ordered by a court to bring the Act into force, we suddenly hear that he intends to bring amendments,” he said.
He added that based on his knowledge the AG has not made any move to operationalise the Act.
Nandlall said that one will note that it was since March, 2017, that he wrote the AG asking for the Act to be operationalised and shortly after he filed legal proceedings. During that very period, he reminded, the AG tabled several pieces of legislation in the National Assembly but did not table any of the “alleged amendments” related to the Act.
Nandlall pointed out that the law making process is a constant, continuous and dynamic one. “Therefore, it is always open to the Attorney General to bring amendments to the Judicial Review Act but that cannot be the basis for his failure to bring it into operation,” he argued, while adding that it is unfortunate that one had to apply and obtain a court order compelling Williams to operationalise the Act and then instead of complying he appealed and then attempted to stay the execution of that order.
All during that time, he said, “he (Williams) didn’t put the amendments to the House. Now he comes up with this outrageous and incredulous contention that he intends to table amendments.”
Nandlall reiterated that it is a government’s right to amend any legislation but in this case the court order must be obeyed and “the amendments, I suppose, can come at a later stage.” Pointing out that these amendments cannot be dealt with anytime soon given that Parliament is in recess until October, Nandlall stressed that the legal profession is “unwilling and unprepared to wait.”
Justice Khan, in delivering his decision, was very critical of Williams’ behaviour, particularly his disregard in carrying out his mandate in keeping with the Act.
He explained that the JRA became part of the laws of Guyana when the then president assented to it on 2nd November, 2010. “Parliament saw it fit to delay the coming into operation of the JRA by vesting in the minister the power to bring it into force by order,” he said, while adding that Parliament intended that it should be operational so as to make available to the public a number of remedies for judicial review.
He said that the “only credible and sensible explanation” of the failure to have the JRA immediately brought into existence was that advanced by Williams, that is, that “the CPR which supplied the procedure and practice for the operation of the JRA was not at the time in a state of readiness.” He, however, pointed out that at the present time this is no longer the case.
The judge said that in his opinion, what exists in this case is the “frustration and obstruction of the legislative arm of the government” in carrying out its constitutional mandate of making laws for the peace, order and good government 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.” He said that it is also apparent that the executive “seems to be obstructing itself.”
He also said that Williams’ resistance to bring the act into operation is “not a satisfactory state of affairs.” Section (1) of the Act, he said makes it clear that Williams is duty-bound to make it operational.
“I must admit I found some difficulty as I attempted to rationalise the submissions on behalf of the applicant that the appeal would be rendered nugatory were I not to grant a stay of execution,” Khan said.
The appellate judge maintained that the arguments brought by Williams had no reasonable prospect of success and as such the application could not be granted.
He said that the solution would either be to reverse the commencement or repeal the Act. “I cannot see how giving the public a greater range of public law remedies and a modern system by which they may be obtained is such a bad thing. Having to amend the Act after its implementation would not render an appeal nugatory. Amendments to existing pieces of legislation are part of the normal business of the legislature. I do not see how having to amend the JRA subsequent to its implementation would render the appeal nugatory,” he noted.
A date for the hearing of the appeal is still to be set.
