Legal Affairs Minister appeals CJ’s ruling on Judicial Review Act

While accusing Chief Justice Roxane George SC of overstepping her bounds, Legal Affairs Minister Basil Williams SC last week filed an appeal challenging her decision to compel him to bring into force the long-delayed Judicial Review Act (JRA) no later than July 31st.

“The Learned Judge committed a specific illegality when she failed to apply the overriding objective of the new Civil Procedure Rules to deal with cases justly and not exercise her discretion injudiciously by stepping into the province of the Executive Arm of the Government”, Williams said in his Notice of Appeal where he also expressed dissatisfaction with the “whole decision”.

The appeal which was filed on June 13, 2018 was prepared on Williams’ behalf by Solicitor Kim Kyte, Deputy Solicitor General Deborah Kumar and Principal Legal Advisor Oneka Archer-Caulder.

The Minister of Legal Affairs is listed as the Appellant/ Respondent while Attorney at law, Anil Nandlall is the Respondent/Applicant.

Nandlall who is Williams’ predecessor had earlier applied to the court for an order compelling Williams to bring the Act into force. He had argued 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 Civil Procedure Rules (CPR) to come into force. The CPR only came into operation two years ago.

Williams who days after the decision had signaled a possible challenge at the Caribbean Court of Justice (CCJ), stated in the appeal documents that given his dissatisfaction with the May 28th decision he was asking for the Appellate Court grant an order “setting aside and wholly reversing” the CJ’s judgement.

Aside from the alleged attempt by the CJ to step into the domain of another branch of government, a number of other illegalities and errors were outlined in the grounds of appeal.

It was argued that the judge committed a specific illegality when by her ruling she purported to “dictate” to the Minister of Legal Affairs her own timelines to bring the Judicial Review Act into force in contravention of the doctrine of the Separation of Powers.

The ruling that the Legal Affairs Minister had breached a duty by not bringing the Judicial Review Act into force was a specific illegality along with the ruling that Williams has breached a duty in violation of the letter and spirt of the Act itself, as well as the will of Parliament.

It was argued that the CJ erred and misdirected herself in law when she found that Williams did not have a discretion after the CPR came into force; when she found that the specific discretion granted to the Minister of Legal Affairs by the legislature had been converted into an obligatory duty to bring the Act into force after/when the CPR came into force and when in the exercise of the discretion she usurped the discretion vested in the Minister of Legal Affairs, by the legislature to bring into force  legislation which was clearly within his purview to so do.

It was contended that other errors in law were committed when the CJ did not make a specific finding that to command the Minister to bring the Act into operation by a certain date was a clear usurpation of the function and authority of the Minister by the judiciary.

According to Williams’ arguments the judge erred and misdirected herself in law when she did not find that there where the legislature has given the minister the power to decide when to bring a statute into force, it was not within the powers of the court to compel the minister when to bring the Act into force.

It was argued the judge misguided herself in law when she issued a mandatory order to command the Appellant to act within a specific time where there had not been a refusal by the Appellant to carry out a statutory duty.

The CJ, the document argued, erred and misdirected herself in law when she did not find that it was a matter for the legislature to decide what provisions it would make for the commencement of any particular statute or particular part of it and not the judiciary.

It was argued that the decision of the judge was “unreasonable in law and cannot be supported having regard to the evidence.

In her ruling, Justice George found that Williams had a duty to have already brought the legislation, which is intended to work in tandem with the 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 operationalise that law.

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.

Williams would later describe Justice George’s ruling as “premature”. In a press statement, the AG claimed that the decision of the Court raised some important questions regarding governance and the separation of powers between the executive arm of the government and the judiciary, which had been broached during the arguments in the case.

The Bar Council of the Guyana Bar Association has welcomed the Judge’s ruling.

 

 

 

 

 

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