AG issues order to bring judicial review law into force next year

Under pressure to comply with a court order requiring that he operationalise the Judicial Review Act, Attorney-General (AG) Basil Williams SC has issued a commencement order to bring the legislation into force, albeit at the beginning of next year.

The Judicial Review (Commencement) Order 2018, which was made on August 15th and gazetted on August 16th and published in an Extraordinary Edition of the Official gazette yesterday, states, “I appoint the 1st day of January, 2019 as the day on which the Judicial Review Act shall come into operation.”

The move by Williams appears to be an attempt to forestall contempt of court proceedings that were initiated by attorney Anil Nandlall over his failure to bring the law into force, in keeping with the decision handed down by Chief Justice (ag) Roxane George in May.

However, the date set by Williams deviates from the order, which compelled him to bring the legislation into force on or before July 31st.

Nandlall, who is Williams’ predecessor, on Friday filed contempt of court proceedings in which he asked the High Court to jail the AG until the law is operational.

Williams earlier this month failed in his bid to have the Court of Appeal stay the execution of the Chief Justice’s order. He is still waiting on that court to hear his appeal of Justice George’s decision.

Nandlall, who had brought the action in the High Court for Williams to activate the law, had argued that the only reason the Act was not brought into operation during his tenure under the PPP/C administration was because they had been waiting for the Civil Procedure Rules (CPR) to come into force. The CPR only came into operation two years ago, during Williams’ tenure.

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.

Since the CPR were not in force in 2010, when the JRA was passed and the then rules of court were silent on the issue, a provision was inserted into the Act to say that it would come into operation on a date appointed by order of the Minister.

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 CPR, 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 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 explained 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 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.

Williams’ ministry, in a press release issued days after Justice Khan’s decision, made it clear that the Act will not be operationalised until consultations are held and amendments are made. The ministry said in part that it intends to follow best practices and consult with stakeholders before the implementation of the Act. The release stated that “these consultations will ensure that improvements and amendments be made to cure existing lacunas in the current Judicial Review Act and to bring it in line with established regional and international best practices….”.

It was not stated when the consultations are likely to start.

Williams, who had indicated after the High Court ruling that he was prepared to take the matter all the way to the Caribbean Court of Justice (CCJ), had argued that Parliament bestowed the power upon the Minister (him) as a member of the Executive branch of government to determine the commencement of the Act.

He had contended that he was “persuaded that opportunity and consideration” ought to have been given to the Executive to set a reasonable date for the commencement of the Act, given that eight years has passed since it was passed and received assent.

The Guyana Bar Association had welcomed the CJ’s ruling, stating that two meetings with the AG calling for the urgent implementation of the Act bore no fruit.

Attorney Christopher Ram, in a letter published in this newspaper, described Williams’ attitude to the Act as hypocritical, opportunistic, anti-democratic and dangerous.

Ram accused Williams of “playing games with people’s rights, the authority of the courts and the rule of law” and said that the “legal profession, civil society and the citizenry have no option but to show their abhorrence of this vulgar, crude and antidemocratic attempt to roll back citizens’ rights by no less a person than the Attorney General and the chief legal advisor to the Government.”