AG loses bid to hold off operationalising review law

-Nandlall threatens contempt proceedings over continued delay

Basil Williams

The Guyana Court of Appeal on Thursday dismissed an application filed by the Attorney General (AG) to stay an order issued by Chief Justice Roxane George SC compelling him to bring the Judicial Review Act (JRA) into force by July 31st.

AG Basil Williams SC applied for a stay of execution, pending the hearing and determination of an appeal filed on his behalf.

Williams is listed as the applicant, while former AG Anil Nandlall is the respondent.

“I hold that the applicant [Williams] has not satisfied me that his appeal has any reasonable prospect of success, that it would be rendered nugatory and that there is any risk of injustice if I refuse to grant his application for a stay of execution pending appeal,” appellate judge Rafiq Khan, SC, who heard the application, ruled.

The matter was heard in chambers.

Justice Khan also ordered that Williams pay the respondent costs in the sum of $150,000.

Nandlall, in a brief statement to the media, warned that if the AG continues to refuse to comply with the Chief Justice’s order, “contempt of court proceedings will be filed against him.”

The law allows for aggrieved citizens to challenge the act or omission of any public officer, including ministers of government, any public authority or any statutory tribunal, on the grounds 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 or in breach of one’s legitimate expectations.

Nandlall had filed proceedings in the High Court on December 7th, 2017, asking for an order or rule nisi of mandamus directed to Williams, compelling him to bring the act into operation by ministerial order and that he be called upon to show cause why the order should not be made absolute.

In her ruling, which was delivered in May, 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 the CPR 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 the law.

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.

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

“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.”

He outlined a number of alleged illegalities and errors in the grounds of appeal.

Subsequently, by way of a summons, dated July 17th, 2018, Williams applied for a stay of execution pending appeal.

‘Obstructing itself’

In considering the application, Khan said he focused mainly on its reasonable prospects of success. In so doing, he looked at the submissions made by the application regarding the separation of powers argument and duty, power or discretion.

Khan said that he disagreed with the applicant that the order granted violated the separation of powers doctrine in that the judiciary was transgressing upon the domain exclusively reserved for the executive. He held that this argument has no reasonable prospect of success in the circumstances of this case.

He explained that the JRA became part of the laws of Guyana when the then president assented to it on 2nd November, 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 the respondent, that is, that “the CPR (Civil Procedure Rules) which supplied the procedure and practice for the operation of the JRA was not at the time in a state of readiness.” He said that at the present time this is no longer the case.

The judge 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 also said that Williams’ resistance to bring the act into operation is “not a satisfactory state of affairs.”

With regards to the second argument taken under consideration, Justice Khan said that he disagreed with the submission that Section (1) of the act grants Williams “the discretion as to when the JRA should be made operational.” Like the other argument, Khan said that it had no reasonable prospect of success.

He noted that Parliament did not intend for the act to sit “unimplemented, languishing indefinitely in some dusty volume of the Laws of Guyana” but rather for the benefit of the public.

He stressed that that section of the law makes it clear that Williams is duty-bound to make it operational.

“I must admit I found some difficulty as I attempted to rationalise the submissions on behalf of the applicant that the appeal would be rendered nugatory were I not to grant a stay of execution,” Khan said.

According to Khan, the applicant did not explain how he would suffer “irreversible hardship if the stay was not granted.” Further, he stated that it is ironic that the applicant states that a decision in his favour in the substantive appeal would be frustrated in the absence of a stay of execution.

“He has not however articulated how the appeal is likely to be frustrated in the absence of the stay. I am unable to discern how having to reverse the commencement of the JRA, if the applicant’s appeal is successful, impacts on rendering the appeal nugatory,” he pointed out.

He said that the solution would either be to reverse the commencement or repeal the Act. “I cannot see how giving the public a greater range of public law remedies and a modern system by which they may be obtained is such a bad thing. Having to amend the Act after its implementation would not render an appeal nugatory. Amendments to existing pieces of legislation are part of the normal business of the legislature. I do not see how having to amend the JRA subsequent to its implementation would render the appeal nugatory,” he noted.

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