AG blames “mix up” for faulty commencement order for judicial review law

Attorney General (AG) Basil Williams SC yesterday blamed a “mix up” at his office for the wrong date being printed on the initial commencement order he issued for the activation of the Judicial Review Act (JRA).

“What happened really is that the law officer who was dealing with the matter went on leave and the other one that was left to deal with it subsequently went on maternity leave. So there was a little mix up….There was an interim stay granted when the applicant [Anil] Nandlall gave an undertaking and that was not brought to the attention of myself or the Chief Parliamentary Counsel,” Williams told a press conference yesterday.

Chief Justice (CJ) Roxane George SC had issued an order in May, compelling the AG to bring the Act into force by July 31st. Williams appealed the decision and also filed an application to stay the order. His bid for the stay was, however, dismissed by Appellate Judge Rafiq Khan.

Days after that decision, Williams issued a commencement order to bring the Act into force on January 1st, 2019. On August 27, Williams rescinded that order and replaced it with a new one which complied with the CJ’s order.

Williams yesterday was asked about the rationale behind the issuance of the first commencement order.

He later explained that when Justice Khan give his judgment, the AG’s Chambers received the order of the court on August 14th and he signed the commencement order the following day. That commencement order, he said, was published in the Official Gazette on August 16th.

Williams added that the JRA was a “PPP Act” which was passed in 2010 and assented to by then President Bharrat Jagdeo but it was never brought into effect because “they didn’t want us who were in opposition,” to be able to sue them by using all of the remedies contained in that law.

He said that without the Act, a person could sue but could not get damages using the same application. According to Williams, after the PPP/C was removed from office in 2015 and the APNU+AFC government took over, “they then sought to have us implement their Act and they went to the court.”

Williams told reporters that government believes that because of the separation of powers, the decision to operationalise the Act is a decision of the executive. “Really and truly, it should not be within the province of the judiciary to tell the executive to operationalise an Act that is within their own discretion. That would be in breach of the doctrine of separation of powers. The Chief Justice has not agreed. She ruled and we appealed it,” he said.

Williams informed that prior to Justice Khan making his decision, he had filed an appeal to the Full Bench. “We are asking for a stay too. So that the matter can be ventilated finally at the CCJ. It is our right to use up the hierarchical system… At no time have we refused to implement the order of the Chief Justice…,” he said.

Both former AG Anil Nandlall, who had brought the action in the High Court for the operationalisation of the law, and the President of the Guyana Bar Association Kamal Ramkarran have welcomed Williams’ move to bring the commencement date in line with the order of the CJ.

Nandlall had accused Williams of deliberately avoiding being served a copy of the order made by CJ, which was necessary for contempt of court proceedings to be filed. Nandlall was subsequently able to file his proceedings and the case is scheduled to be heard next Tuesday.

Traversing

Yesterday, Williams denied that he was hiding. “Everyone knowns that within the last two months I have been campaigning, traversing this country left, right and centre and never knew anything about what he is saying. In fact, the contempt proceedings he filed after the 20th August really is malicious because…the order was gazetted on the 16th, we having issued it on the 15th. So we have shown a clear intention to implement the order,” he said, before adding that a date for the hearing of appeal has not yet been set.

Nandlall, who on August 17th asked the court to jail the AG until the Act is brought into force, said that even though Williams has since complied, 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 last week.

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.

Justice Khan 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.

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 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.

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