Chief Justice orders AG to activate judicial review law

-says failure to do so unlawful

Anil Nandlall

Chief Justice Roxane George yesterday ordered Attorney-General (AG) Basil Williams to bring the long-delayed Judicial Review Act (JRA) into force no later than July 31st, while finding that his failure to do so thus far was unlawful and in violation of the will of the Parliament.

Among other things, the judge noted that Williams, who is also the Minister of Legal Affairs, had a duty to have already brought the legislation, which is intended to work in tandem with the Civil Procedure Rules (CPR), into effect.

The judgment was made on an application by Williams’ predecessor, Anil Nandlall, who contended that Williams was under a duty bring the Act into force.

The Bill enacting the Judicial Review Act, No. 23 of 2010, was assented to by former president Bharrat Jagdeo in 2010.

Basil Williams

Nandlall had said that the only reason it was not brought into operation during his tenure under the PPP/C administration, was because they had been waiting for the CPR to come into force. The CPR only came into operation two years ago.

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 operational that legislation.

Citing case law, the judge noted that this had been a breach of Williams’ statutory duty—was unlawful, and in violation of the letter and spirit of the Act itself as well as the will of the Parliament.

She found also that he did not have a discretion after the CPR came into force. That discretion, the court noted, had been converted into an obligatory duty to bring the Act into force.

To Williams’ argument that he needed to give priority to the president’s legislative agenda, the court said this had no relevance, while noting that the Parliament would have already expressed its will, after which the Bill had been passed and assented to.

Referencing the Hansard, which was tendered as an exhibit, the judge highlighted that passage of the bill had received unanimous parliamentary support, with members of the National Assembly regarding it as a means of making the judiciary more efficient.

Reviewable

Williams had also sought to argue that as an executive officer, the Court had no coercive power over him. But this contention was rejected by Justice George, who noted that as a member of the executive, he is reviewable like every other public officer and that if he failed to execute duties imposed upon him by law, then the court is empowered to compel him to perform those issues.

Having regard to her finding that the Act be operationalised, the judge, after again relying on case law, issued to Williams a mandatory order to bring the Act into force “with all convenient speed.”

To this end, she has given him until July 31st of this year to so do, thus making absolute the order nisi of mandamus which Nandlall was seeking to compel Williams to bring the Act into force.

She also awarded the applicant court costs in the sum of $100,000, which has to be borne by the state.

Williams had also argued that as a member of the Executive, if the court were to order him to perform any function, it would be violating the doctrine of Separation of Powers. This position was, however, also rejected by the judge, who said that it had nothing to do with that doctrine.

It was against this backdrop that the court noted its duty to ensure that public officers were acting in accordance with the law when discharging duties by which they were bound by those laws. 

In his application before the court Nandlall had maintained that the CPR and the JRA were always intended to work together and that the procedure to access the remedies contained in the Act are those very rules.

He had noted that the reason Parliament had not brought the Act into force at the time the Bill was passed and resultantly delegated it to the Minister of Legal Affairs was to allow for the CPR to first be enforced.

Once those rules would have come into force, however, the discretion which the Minister would have had would then crystallize into a duty by which he would then be bound to bringing the Act into force.

In comments to the press after the judgment was delivered, Nandlall expressed satisfaction with the ruling. He noted that while in opposition, not only did Williams support the law but he knew that it had a connection with the CPR, yet even after the rules came into force he refused concomitantly bring the Act into force.

He noted that the piece of legislation is for the public good, while explaining that the Act contains a repertoire of remedies that would allow citizens to challenge “almost every conceivable” action of the government, a public officer or statutory agency.

He also explained that it allows for compensation to be paid when there is a violation.

Williams, against whom the action was brought, was represented by state attorney Oneka Archer-Caulder.

In a letter to the press in February of last year, Nandlall had described judicial review as that area of law which guards against abuse of power and touted it as the fastest growing area of law in the English-speaking Caribbean.

He went on to expound that it allows for a citizen who is aggrieved by the act or omission of any public officer, including ministers of government, any public authority or any statutory tribunal, to challenge the said act or omission on the ground that the act or omission is unlawful/illegal/contrary to some written law, including the Constitution/arbitrary/capricious/discriminatory/in breach of natural justice/ultra vires/in breach of one’s legitimate expectations.

The Judicial Review 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 said 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.

Since the CPR were not in force in 2010 when the JRA was passed and the then rules of court were silent on the issue, a provision was inserted in the said Act to say that the Act shall come into operation on a date appointed by order of the Minister.

As Nandlall had stated in his letter, this was specifically done to await the promulgation of the CPR, which contained the procedure for judicial review applications.

Although these rules provided for it, however, judicial review had not been available as the Act had not been brought into force.

The former AG had said that in those circumstances, lawyers had been forced to become creative by making applications for the old prerogative remedies under the new Civil Procedure Rules, since the old rules of court under which those remedies could have been applied for have been overtaken by the new rules.

Legal proceedings filed under such dubious circumstances, he had said, were fraught with unnecessary procedural hurdles and hiccups.

One such hurdle was detected by the Caribbean Court of Justice, which ruled last month in the case of Jose Ocampo Trueba and the Medical Council of Guyana that it was the CPR of 2016 which applied to Trueba’s judicial review claims and not the old Crown Office Rules (COR) of 1906.

Trueba had lost his challenge to the Medical Council refusing him full registration to practice here.

This case had been cited and relied upon by Justice George in her ruling.

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