The decision taken by Legal Affairs Minister Basil Williams SC, to delay the operationalisation of the Judicial Review Act (JRA) will be the subject of a Cabinet discussion, according to Minister of State Joseph Harmon, who says that appropriate action will be taken based on his advice.
“It might very well be that the advice might be to take it to the next level [court], so there are various options that are there but Cabinet will need to be advised by the Ministry of Legal Affairs on the course of action to be taken,” Harmon said during a post-Cabinet press briefing yesterday.
Members of the legal fraternity and observers have questioned Williams and by extension the government’s disregard for an order made by the court.
The Court of Appeal last Thursday dismissed Williams’ application for a stay of execution of Chief Justice Roxane George’s order compelling him to bring the act into force by July 31st. That order was made in May.
Attorney Anil Nandlall indicated to Stabroek News that while the contempt proceedings have already been prepared, he was unable to file it in time yesterday. He said that he will do so today.
Asked about the issue yesterday, Harmon stated that it is clearly within the purview of the Minister of Legal Affairs, who will provide the information that is required to the public. “I believe that there is going to be a discussion on the matter at the next sitting of the Cabinet but, certainly, it is matter which is being dealt with by the Minister of Legal Affairs,” he said.
In a press release issued last Saturday, the Ministry of Legal Affairs said in part that it intends to follow best practices and consult with stakeholders before the implementation of the Act. The release, which was issued two days after the appellate court’s decision, stated that “these consultations will ensure that improvements and amendments are made to cure existing lacunas in the current Judicial Review Act and to bring it in line with established regional and international best practices, such as those highlighted by the CCJ [Caribbean Court of Justice]… in the recent case of The Medical Council of Guyana-v-Jose Ocampo Trueba.”
Asked whether he agrees with the position adopted by Williams, Harmon said that while he doesn’t know that the minister has taken a position, it is not within his ambit to give a personal view. He made it clear that he represents Cabinet and its views.
With regards to why Cabinet would see it necessary to discuss a matter when the court has already made its decision, he queried whether Cabinet is not expected to discuss matters that affect the government, “whether the court has made a decision or not” and what its response is going to be.
When pressed on the issue, Harmon noted that the matter is with the AG who will brief cabinet, which will then make a determination as to the way forward.
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 Civil Procedure Rules (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.
Appellate Justice Rafiq Khan, in delivering his decision last week, was very critical of Williams’ behaviour, particularly his disregard in carrying out his mandate in keeping with the Act.
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 Williams, that is, that “the CPR which supplied the procedure and practice for the operation of the JRA was not at the time in a state of readiness.” He, however, pointed out 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 bringing the act into operation is “not a satisfactory state of affairs.” Section (1) of the Act, he said, 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,” Justice Khan added.
The appellate judge maintained that the arguments brought by Williams had no reasonable prospect of success and as such the application could not be granted.
Attorney Christopher Ram, in a letter published in Wednesday’s edition of the Stabroek News, described Williams’ attitude to the Act as hypocritical, opportunistic, anti-democratic and dangerous. He urged the Guyana Bar Association to take the lead in filing contempt proceedings against Williams.
Nandlall, who had initiated the High Court action, said on Wednesday that Williams was deliberately avoiding being served a copy of the CJ’s order. He revealed though that while it is a requirement under the law to serve the contemnor, service on Williams’ personal assistant and a clerk at his office, was enough for him to move forward with the contempt proceedings.