Court has ordered AG to appoint governing board for Deeds and Commercial Registries Authority

Dear Editor,

The Deeds and Commercial Registries (Amendment) Bill was published in the Official Gazette on the 24th  January 2017. It was laid in the National Assembly on the 9th February 2017 by the Attorney General and Minister of Legal Affairs. This amendment seeks to amend the principal Act, to inter alia, empower the Minister of Legal Affairs to act in place of the Governing Board of the Deeds and Commercial Registries Authority (DCRA) when that Board is not appointed. The Act vests in the said Minister a mandatory obligation to appoint the said Board. This Authority was specifically created to insulate the operations of the Deeds and Commercial Registries from ministerial interference and to vest in the Governing Board the powers and responsibilities for the overall management as well as the day to day activities of the Authority.

In order to defeat the policy objective of the Act and to contaminate the operations at the Registry with his political hand, the Minister of Legal Affairs refused to appoint a Governing Board since the last one expired in June 2016. The Minister now seeks to amend the principal Act to say that when there is no Governing Board, the Minister shall act instead and in place of the Board! This must be one of the worst expressions of political and authoritarian chicanery of this Government thus far. As a result, I wrote to the Minister on the 27th January 2017, calling upon him to forthwith appoint a Governing Board pursuant to the statutory obligations contained in the Act. I threatened legal action if he failed to do so. Expectedly, I received no response. On the 7th March 2017, I launched legal proceedings, in my own name. On the 8th day of March 2017, the Honourable Justice Brassington Reynolds granted an order nisi of mandamus compelling the Minister of Legal Affairs to appoint the members of the DCRA, in accordance with the aforesaid Act and for the Minister to show cause why the order nisi of mandamus should not be made absolute.

In another exhibition of poor professional judgement and a lack of appreciation for rudimentary principles of law, rather than appoint the Governing Board, the Minister contested the application. The case was eventually heard by the Honourable Justice Nareshwar Harnanan. The Attorney General, in person and yours truly, presented detailed arguments to the Court on the 5th day of April 2017. On the 19th day of April 2017, the Judge delivered an 18-page ruling. In deference to the Honourable Judge, I can do no better than set out what I consider to be the relevant portions of his ruling.

“A clear duty is imposed on the Minister of Legal Affairs to appoint the majority of members of the Governing Board, on the expiration of a previously fully constituted Board, or re-appoint those members for a period of time he determines.

“…Therefore, the contention by the Hon. Attorney General that no time limits are imposed by the DCRA for the appointment of the members by the Minister of Legal Affairs is without merit. The duty to appoint members arises on the occasion of the expiration of life of the Governing Board, pursuant to the provisions of the DCRA.

“The Court considers this argument to be unmeritorious. As pointed out earlier, the Minister with responsibility for the administration of the Act is the Minister of Legal Affairs. Nowhere in the affidavits, or other documentary evidence before the Court, is there a contention that the Hon. Minister of Legal Affairs, in his administration of the Act, invited nominations for appointment as members of the Governing Board, from the respective organizations or sectors as stated in the Act.

“This Court is of the view that there is a concomitant duty on the Minister with responsibility for the administration of the Act to take active steps in the appointment of the Governing Board of the Authority, which will involve inviting nominations, and processing them per the Executive’s policy, towards eventual appointment to the Governing Board.

“This Court would not, and cannot intervene in the policy considerations for the selection of actual members of the Board, which remains within the realm of the Executive arm of government. However, where there is a clear statutory duty to act, and there is inaction and/or refusal to preform that statutory duty, the Court must intervene when called upon by an aggrieved party, enforcing an adherence to the rule of law in the appropriate circumstance.

“The further contention by the Hon. Attorney General regarding the material disclosure by the applicant in his failure to state in his application that there is a proposed amendment to the extant DCRA currently before Parliament is also without merit.

“The uncontradicted fact before the Court is that since on or about June 2016, the life of the Governing Board of the DCRA expired. To date, there is nothing before the court which suggests that steps are or were taken to have that Board re-appointed or reconstituted. The promulgation of a proposed amendment of the extant Act, does not operate as a stay on the statutory obligations contained therein. Even so, according to the Hon. Attorney General, this proposed amendment was only tabled in Parliament in the latter part of January, 2017, approximately 7 months after the life of the Governing Board expired. It is factual that there was no Governing Board for some 7 months before a proposed amendment was tabled in Parliament…

“Whilst the Court can take judicial notice of the proposed amendment, there is no clear timeline at the stage of the current parliamentary process, at least up to the date of his ruling, that the proposed amendment will be passed ad assented to. For such a vital statutory entity to be without a Governing Board, for such an extended time, is clearly an untenable situation.

“It would indeed be a shirking of the Court’s constitutional mandate to not exercise its jurisdiction in the most apt of circumstances, outlined herein. The Court welcomes the undertakings by the Hon. Minister of Legal Affairs in open court, when he says he will appoint the Governing Board, as soon as the amendment to the principal Act is passed.

“Notwithstanding, the Court views his continued failure to appoint the members of the Governing Board for which he has the statutory responsibility, in accordance with the current provisions of DCRA, more specifically, sections 5(20(a)(f)(g) and (h) and 6(4), to be unjustifiable. The failure to preform that statutory duty, even when called upon to discharge those obligations, clearly illustrates a ‘wrongful inaction’ as coined by Wade and Forsythe, cited earlier.

“In the circumstances, there being insufficient cause shown on the part of the Hon. Minister of Legal Affairs, the order or rule nisi of mandamus issued on the 8th day of March, 2017 is accordingly made absolute. There will be costs to the Applicant in the sum of $100,000.00 to be paid within 3 months of the date of this ruling.”

In short, the AG has been ordered by the High Court to do exactly what I requested him to do in a letter 4 months ago. If he still refuses to do so, he shall be in contempt of Court. Let us see how far he is prepared to push his luck.

Yours faithfully,

Anil Nandlall