Judicial Review Act

The Judicial Review Act forms a critical spoke in the wheel of good government. It makes it possible for someone affected by an action or decision taken by a public authority to obtain a remedy from the High Court. In simplified terms it holds those who make decisions in the legislative and executive branches of government accountable, ensuring that they act within the law.  Under the common law, the courts had the power to review the decisions of public bodies at some level. This was accomplished through the means of prerogative writs, but the problem was that the procedural rules associated with these became incredibly complicated over time, and the whole process ceased to be effective. Several countries, including some Commonwealth members, have Judicial Review Acts.

Guyana’s Act was passed under the last government in 2010 and, as Mr Christopher Ram reminded us in a letter to this newspaper on Wednesday, it was passed unanimously, with the current Attorney General Basil Williams enthusing at the time that it was “such a good bill.” Even more implausible, one might have thought, were his subsequent musings quoted by Mr Ram: “If the political will is there to go along with this Bill, public servants, Government officers and other functionaries will be more disciplined and correct in their approach in dealing with citizens of this country.”  The implausibility of this, it must be noted, comes about because this is the same man who today steadfastly refuses to implement the Act, even in the face of a court order to do so. Where, one asks, is the discipline and correctness of approach in dealing with the citizenry now?

Mr Ram also cited some other worthies of the time of the Bill’s passage, including Ms Clarissa Riehl, who described the introduction of Judicial Review as “a watershed moment for the people of this country,” and Mr Khemraj Ramjattan of the AFC who said the Bill “cured the defects of the old and outdated prerogative writ procedures and the orders which could have been made under them.” One can only look back with nostalgia at this era of unaccustomed harmony and good government when all the parliamentary parties could agree on a Bill, which was, in addition, of benefit to the public at large.

Last week the media wasted no time in buttonholing Minister of State Joseph Harmon about exactly what was going on. He was less than enlightening, telling the reporters that the matter would be discussed at Cabinet. He indicated that the matter was within the purview of the Minister of Legal Affairs, who would provide the required information and advice. “It might very well be that the advice might be to take it to the next level [court],” we quoted him as saying. This might seem to suggest that there has already been some thought at the highest government level about how to further delay or even prevent the implementation of the Act, and one can only presume that the reference was to the Caribbean Court of Justice (CCJ).

And as for the man at the centre of this tempest, last Saturday, citizens were the beneficiaries of a communication not from him directly, but from the Ministry of Legal Affairs in the form of a press release. In that the ministry said it intended to follow best practices and consult with stakeholders before the implementation of the Act. It can only leave everyone gasping: How can you follow best practices, when you have already failed the best practices test by refusing to bring the Act into force? That is surely the ultimate in contradictions.

In relation to the consultations, we quoted the release as going on to say, “[they] 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… in the recent case of The Medical Council of Guyana v Jose Ocampo Trueba.” If that has been the intention all along, why go this route? If the government really feels that the Act is in need of amendment, it had the option of going back to Parliament a long time ago. Given their behaviour in this instance, however, “best practices” could not be further from their minds.

The Attorney General is currently resisting an Order Nisi from the Chief Justice (ag) Roxane George made on December 15, 2017 that he bring the Bill into operation “with all convenient speed and no later than July 31.” This was then appealed and Appeal Court Justice Rafiq Khan delivered his decision the week before last. We reported the Chief Justice as declaring that the AG had breached his duty by not bringing the Act into force, and that no excuse had been given. She observed that the delay on his part could only be seen as a refusal to operationalise the law.

Justice Khan did not mince his words. He referred to the “frustration and obstruction of the legislative arm of the government” in discharging its mandate, caused “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.” We reported him as going on to add that the executive “seems to be obstructing itself.”

Well that at least comes as no surprise to any member of the sentient public; it is quite clear to everyone that the Minister of Legal Affairs has problems with the consistency of his views, the logic of a position, principles of political thought and above all, what constitutes good government.

Finally, Justice Khan also added, “I must admit I found some difficulty as I attempted to rationalize the submissions on behalf of the applicant that the appeal would be rendered nugatory were I not to grant a stay of execution.” Mr Ram in his letter was even less lenient about the arguments put forward by the AG: “Stubbornly Williams appealed the [Chief Justice’s] ruling on some of the most spurious and risible grounds which the Court of Appeal had no difficulty in rejecting out of hand.”

There can be no doubt that the government is going to great and, it might be added, absurd lengths to avoid bringing the Judicial Review Act into force. It has advertised to the entire nation that it wants to get rid of the Act, but it hasn’t spelt out why. One can only comment that it is clearly afraid – afraid that a slew of cases will be brought against it; afraid that it might be exposed in ways it would rather avoid.

Mr Williams’s performance has, not unsurprisingly, been far from stellar, but why is he allowed to bring the administration into such disrepute? The answer has to be that he has its support, and more particularly the support of President David Granger, otherwise how could he have been allowed to go to the court in the first place, and then take the matter to appeal? And now, even more ludicrously, after two court decisions Minister Harmon tells the press that Cabinet is to consider the issue. It has all the hallmarks of a comedy routine.

There is of course the AFC as well in this scenario. Its statements too are on record from 2010, and very shortly it will have to make public whether it is accepting a role in the farce, or whether it will distance itself from it. If it does not diverge from the PNCR alliance on this one, it will lose whatever little separate identity it still retains.

The loser in all of this is the citizenry, which was hoping for the institution of the rule of law and good government. The Judicial Reform Act was certainly a move in the right direction, but it seems the government is more interested in protecting itself than in being accountable and functioning in the interests of the people. There is a name for that, and it is not liberal democracy.

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