Attorney General and Minister of Legal Affairs Basil Williams SC on Monday withdrew two summonses which he had pending before the Guyana Court of Appeal in relation to the Judicial Review Act (JRA).
The first pertained to an appeal he had filed after being denied the stay of an order compelling him to operationalize the JRA.
In his second summons, he had been hoping that the court would urgently hear the substantive appeal which he had filed to the ruling delivered by acting Chief Justice Roxane George SC, ordering him to bring the JRA into operation.
Though initially flouting the Chief Justice’s ruling of May 28th ordering him to bring the Act into force no later than July 31st of this year, Williams eventually complied on August 27, 2018 bringing the order into effect retroactively from July 31st.
Meanwhile, the Attorney General’s (AG) substantive appeal to Justice George’s appeal is still pending before the court. A date is yet to be fixed for the matter to be heard.
Williams’ predecessor under the former PPP government, Anil Nandlall who had taken him to court for not bringing the Act into force has said that the AG continues to waste time in such matters which ends in actions just being withdrawn.
“He continues to waste precious judicial time and taxpayer’s money on futile applications which should never have been filed in the first place,” Nandlall said in comments to this newspaper.
He was not at Monday’s hearing.
According to the former AG the court would have set aside time to hear the withdrawal applications which he said could have otherwise been more valuably spent hearing the appeals of other citizens who have cases pending for years.
He questioned also the reason behind his predecessor not withdrawing the substantive appeal to Justice George’s ruling which he said is still languishing in the system. Nandlall said with the Act having been brought into force and litigation having commenced under it, “It is legally impossible for the Chief Justice’s decision to be reversed.”
“That much is clear,” he stressed.
Against this background, Nandlall said it would continue to be a waste of time since a date will still have to be fixed for that appeal to be heard, which the Attorney General in the final analysis will also have to withdraw.
He said that the Chief Justice’s ruling cannot be reversed while noting that the Act itself can only be repealed by Parliament, again stressing that the appeal “will certainly be futile.”
To this end Nandlall said that the AG continues to waste time.
He complained too of the Williams consistently not honouring his obligations to pay costs awarded by to him which has to be borne by the state.
Nandlall, the respondent in Williams’ appeal was on Monday awarded court costs in the sum of $50,000 by the appellate court following applications.
Williams had asked not to have any costs imposed but Chancellor Yonette Cummings-Edwards noted that the matter had already been fixed some three weeks ago for hearing and it was the court’s intention to so proceed with it on Monday.
The AG then sought to advance that “Cabinet had taken a decision to…” but the Chancellor interjecting stating that the court was not concerned with the workings of Cabinet.
Williams said his application for withdrawal could only have been made on Monday as it followed certain pronouncements made by President David Granger in his address to the Parliament last Thursday.
Remaining resolute on the imposition of costs, however, the Chancellor sought from the AG an appropriate amount which should be paid to which he suggested $5,000. This figure not finding favour with the court, the AG then suggested “somewhere between $10-15,000.”
“At this court [the Court of Appeal]?” the judge enquired.
The AG responded in the affirmative stating that in the recently-concluded appeal to the constitutionality of the appointment of chairman of the Guyana Elections Commission in which a lot of work had been undertaken, the court awarded no costs.
Justice Cummings-Edwards, however, pointed out to the AG that in that case the court had made an order that each party bear its own cost.
The judge then enquired from Nandlall’s attorney Rajendra Jaigobin the amount of costs he would recommend be granted to which he suggested $50,000 which he said was the amount granted in the High Court.
The case was heard by Justice Cummings-Edwards, Justice of Appeal Dawn Gregory and High Court judge Brassington Reynolds.
In her ruling May 28 ruling, Justice George found that Williams had a duty to have already brought the legislation into effect more so since the CPR had already come into effect since 2016.
The JRA was supposed to have become operational on the CPR coming into effect.
Among other things, the Chief Justice noted that with these rules having been 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 that law.
To that end, the Chief Justice had ordered that the JRA come into effect no later than July 31st.
In addition to appealing Justice George’s ruling, Williams had also sought from the Court of Appeal a stay of execution from having to comply with the High Court ruling until the hearing and determination of his appeal which he wanted urgently heard.
Appellate judge Justice Rafiq Khan SC who heard that stay application in June of this year was critical of the AG’s behaviour, particularly his disregard in carrying out his mandate in keeping with the Act.
In delivering his ruling, Justice Khan stated that the JRA became part of the laws of Guyana when the then president assented to it on November 2nd, 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 Nandlall, 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 had 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 had also said that Williams’ resistance to bringing 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.
Previously explaining the importance of the Act, President of the Guyana Bar Association, Kamal Ramkarran had said that it allows aggrieved persons to file actions in the High Court and affords for a clear idea of what remedies are available against the state inclusive of injunctions which were not previously available.
The 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 Act are contained in the CPR, since the “rules of court,” which were extant at the time, made no provisions whatsoever for judicial review applications.
