Though describing Attorney General (AG) Basil Williams’ decision to comply with a High Court order to activate the Judicial Review Act (JRA) as commendable, attorney Anil Nandlall said yesterday that the contempt proceedings will remain unless the court decides otherwise.
“The AG has already committed contempt of court. He was ordered to bring the Act into operation since the 31st of July…So he has committed contempt of court. I cannot unilaterally withdraw a case without leave of the court especially since the contempt has already been committed. In these circumstances, the court will determine how it will purge his contempt”, Nandlall told Stabroek News.
Nandlall, a former AG said that the bringing the Act into operation simply creates mitigating circumstances which a court may or may not take into account. “It is a matter absolutely for the court to determine how it deals with a violation of its order but it must be emphasized that the Attorney General stands in contempt of court as I speak”, he said.
Nandlall had brought the action in the High Court late last year for Williams to activate the law. The Chief Justice (ag) Roxane George ruled in his favour which resulted in Williams appealing. Williams also filed an application in the Court of Appeal asking that the execution of the Chief Justice’s order be stayed pending the appeal. It was not granted.
Two weeks ago, Williams issued an order identifying January 1st, 2019 as the commencement date despite the order made by Justice George. On Monday that order was rescinded and a new commencement order signed by Williams appointed July 31st, 2018 as the day on which the Act shall be deemed to have come into operation.
It is unclear what led Williams to change his mind. State Minister Joseph Harmon had said on August 16 that the issue would be discussed at cabinet and a decision would be made based on the advice given by the AG.
In his comments yesterday, Nandlall praised the AG for coming to “his senses” and recognising his legal duty to obey the order of the CJ “unreservedly and unconditionally”.
He said that an AG is obliged to lead by example on matters of this nature since he is the principal legal advisor to the executive as well as the head of the Bar.
“It is quiet unfortunate that he deliberately allowed the situation to deteriorate to the scandalous level to which it descended. In my view this entire saga could have been avoided if common sense and professionalism had been applied in the first place. There was no need for me to write a letter nearly two years ago requesting that the Act be brought into force. There was no need for me to file legal proceedings compelling the AG to bring the act into force. There was no need for the AG to defend the proceedings which were filed…”, he said, adding that for the AG to appeal the decision and apply for a stay of execution or to circumvent the order of the CJ by issuing an order to delay it until January 1, 2019 was unacceptable.
He reminded that he has itemised the exhaustive process simply to “demonstrate how an incompetent and perhaps egotistical posture can waste so much precious energy, invaluable judicial time and a huge amount of resources”. Nandlall pointed out that this singular incident would have cost taxpayers several million dollars.
“At the end of the day, the Attorney General has to do what he should have done two years ago…”, he said, adding that there is a manifest wastage of taxpayers’ dollars and on the other hand, “we hear the government cry of not having enough money to pay our teachers”.
“Why the Attorney General is not withdrawing the appeal?” he questioned before adding that given that the Act has been brought into operation the appeal is “nugatory and only of academic significance”. He used the opportunity to call on the AG to withdraw the “baseless and frivolous appeal which remains pending in the court system”.
Meanwhile, President of the Bar Association of Guyana, Kamal Ramkarran in an invited comment noted that the body has been following the situation carefully and is “pleased” that the Act has finally been brought into force.
He said that the Association has been keeping its members up to date, including sharing the decision made by Appellate Judge Rafiq Khan as well as a copy of the new commencement order issued by Williams.
“So our members are being kept apprised of what is going on and we are following it closely”, he said.
Asked why the Association did not take the lead in this matter, Ramkarran said that there was no need to, as Nandlall had already moved to the court. As such the Association took up an observer’s role.
“From the time we (the executive) came into office, we have been following it up. We have raised the issue with the Chancellor and Chief Justice…[and] the Attorney General…We took a watching interest into Mr. Nandlall’s proceedings. Mr Nandlall already had proceedings and there was no need for us to duplicate those proceedings”, he said, while adding that after the meeting with Williams, the Association wrote him reiterating an earlier call for the Act to be brought into force. He stressed that because the Association did not file the proceedings it could not file contempt proceedings against Williams.
He said that now that it is in force, aggrieved persons can proceed to file actions in the High Court using the piece of legislation. He explained that it will follow the same High Court administrative law process. Common law was applicable previously and now with the enforcement of the Act it will now be clear what remedies are available against the state inclusive of injunctions which were not previously available.
The 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 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.
Guidance of the court
Ramkarran told this newspaper that no one could have filed matters using the Act as Williams needed to first issue an order bringing it into force. He said that those who have already filed matters will now need to amend them or seek the guidance of the court.
Nandlall had argued in the High Court proceedings that the only reason the Act was not brought into operation during his tenure under the PPP/C administration was because it had been waiting for the CPR to come into force.
In her ruling, Justice George found that Williams had a duty to have already brought the legislation 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.
Appellate judge Justice Rafiq Khan SC, in delivering his decision on Williams’ subsequent application for a stay of execution, was critical of the AG’s behaviour, particularly his disregard in carrying out his mandate in keeping with the Act.
He stated that the JRA became part of the laws of Guyana when the then president assented to it on November 2nd, 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 Nandlall, 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.