Why is the Judicial Review Act important?

I will stay away from the continuing controversies between the current and past Attorneys-General. To coin a phrase, when elephants rumble, it’s the insects in the grass who get trampled. I will likewise stay away from the merits or otherwise of the Chief Justice’s decision ordering the Minster of Legal Affairs to bring the Act into force. It is likely to be appealed and the Court of Appeal will decide. But why is the Judicial Review Act important to the public?

There is an area of law called ‘public law.’ While much law notionally exists for the protection of the public, ‘public law’ more directly protects the rights of the citizen in his or her relations with the state and public bodies or authorities by holding them to account. The instruments used by the courts in public law are of ancient origin, initially directed against the King, and are called writs of certiorari – to quash a decision, mandamus – to order something to be done, prohibition – to prohibit an act and the lesser known, quo warranto – challenging the right to hold an office. The writ of habeas corpus – ordering the production of a body, is linked to these. They are called ‘prerogative’ remedies issued by courts on the application of citizens for ‘judicial review’ to enforce their rights against the state or public authorities. Currently, these are the only remedies available in public law.

Where a public authority or body (this includes an individual who exercises a public function) has a right or duty to perform a function, or to omit to do so, that authority must act within the parameters established by public law. Essentially, public law requires the state or public authority to act fairly. Courts in the U.K. and elsewhere have traveled long, circuitous and complex routes to arrive at that conclusion and to determine what is ‘fair’ means in particular circumstances. These were all designed to protect the citizen from the state and public authorities.

One popular manifestation of the way in which public law applies is the right to be heard. It’s called the audi alterem partem rule and, if violated by the state or a public authority, one of the writs described above can be ordered. Some decades ago the concept of ‘legitimate expectation’ developed. The phrase has found its way into common parlance. It means that if the state or public authority creates an expectation in a citizen by its acts or omissions that it will act or not act in a certain way, and it acts differently, the court will quash an act or omission contrary to the expectation. About thirty years ago the great Justice Stephen Sedley extended the doctrine to ‘substantive legitimate expectation’ by which the court will, under certain defined circumstances, require a public authority or the state to perform an act which was promised to, and became an expectation of, a citizen.

Decades ago the number of public law actions in the Guyana and in the wider world began to increase exponentially for reasons outside the scope of this article. In the late 1970s the procedure in public law cases was modernized in the UK and additional remedies were made available to citizens. The Caribbean followed later. Guyana, always moving at an unhurried pace, finally moved in 2010 and the National Assembly passed the Judicial Review Act. However, the Act could not be implemented because it had to await the new rules of court providing for public law applications, which were implemented in February 2017.

The Act formalizes and substantially expands the right of a person or group, whose interests are adversely affected by an administrative act or omission, to obtain relief from the court through an application for judicial review. Eighteen specific grounds are set out on the basis of which an application for judicial review can be made. These are that an act is: contrary to law, in excess of jurisdiction, an unlawful procedure, in violation of natural justice, an unreasonable exercise of jurisdiction, an abuse of power, fraud, bad faith, unauthorized action, violating policy of an act, error of law, absence of evidence for finding, failure or omission to perform a duty, violation of the Constitution, breach of proportionality, error of fact, violation of legitimate expectation and misfeasance in public office. The court is not limited to these reasons.

The remedies have also been formalized and vastly expanded. The orders which the court can grant include: the writs of certiorari, prohibition and mandamus, described above, and such orders as the court considers just. It can also now grant a declaratory judgment or an advisory declaration or a prospective declaration, an injunction, a conservatory order, restitution or damages in money, an order for the return of property, movable or immovable.

Since public law is essentially for the protection of the citizen against the state and public authorities, the expansion of grounds and remedies set out above, immeasurably enhances the rights of and empowers the citizen who will now be in a far stronger position to seek and obtain protection against the state and public bodies. Caribbean people have enjoyed these rights for decades. Guyanese deserve to, without delay.