AG calls ruling on judicial review law ‘premature’

-signals possible CCJ appeal

Basil Williams

Attorney-General Basil Williams yesterday called Chief Justice Roxane George’s ruling ordering him to bring the long-delayed Judicial Review Act (JRA) into force by the end of July “premature,” while signalling a possible challenge at the Caribbean Court of Justice (CCJ).

In a press statement issued yesterday, Williams claimed that the decision of the Court raises some important questions regarding governance and the separation of powers between the executive arm of the government and the judiciary, which had been raised during the arguments in the case.

In her ruling on Monday, Justice George found 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.

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.

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 into the Act to say that it would come into operation on a date appointed by order of the Minister.

In his statement, Williams resurrected the argument he presented to the High Court and noted that the Parliament “vested the power upon the Minister as a member of the Executive arm of the Government to determine the commencement of the Judicial Review Act and there has been no willful or malicious failure or refusal by the Attorney General to commence the Act as alleged in the case brought before the Court.”

Consequently, he noted that he was “persuaded that opportunity and consideration” ought to have been given to the Executive to set a reasonable date for the commencement of the Act, given that eight years has passed since it was passed and assented.

“This would also allow the Cabinet the opportunity to engage in wide consultations with the Guyanese people before the Act is brought into law. This would ensure that improvements and amendments be made to cure existing lacuna’s in the current Judicial Review Act and to bring it in line with established regional and international best practices. Regrettably, the decision of the Court is premature as there has been no opportunity for consultation on the commencement of the Act,” Williams lamented in the statement.

He claimed that though the Act was assented to on November 2nd, 2010 the previous PPP/C government had not enacted its provisions up to May, 2015,  five years later, so as 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.

He also argued that the operationalising of the Act was not dependent upon the passing of the Civil Procedure Rules 2016 as argued before the court and that the Parliament and parties in Parliament in 2010 agreed and provided in section 1 of the Act that “the Judicial Review Act shall come into operation on a date appointed by order of the Minister.”

“Moreover, the reference to “rules of Court” in the Act contemplated rules that were already in force as there was already provision in the law for claims for judicial review,” he added before concluding that the decision presents a great opportunity for the CCJ to answer these

serious questions of governance and the separation of powers.

At the time of the passage of the legislation, Williams’ predecessor, Anil Nandlall, who applied to the court for the order compelling Williams to bring the Act into force, had been Attorney General.

Nandlall had said that the only reason the Act 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.

In her ruling, the Chief Justice found that Williams 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.

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.

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. 

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