Bar Council welcomes ruling for activation of judicial review law

The Bar Council of the Guyana Bar Association has welcomed the ruling by acting Chief Justice Roxane George to compel Attorney General Basil Williams to bring the longdelayed Judicial Review Act (JRA) into force by the end of July.

Speaking with Stabroek News on Tuesday, Association President Kamal Ramkarran noted that since its election, the present executive of the organisation has reached out to Williams on the matter but did not receive any positive response.

A statement from the Bar Council yesterday explained that the matter of the implementation of the Act was raised at a meeting with the Attorney General on July 22nd, 2017, and again by way of letter on November 15th, 2017. These requests for the urgent implementation of the Judicial Review Act bore no fruit, the Association said, while welcoming the Chief Justice’s decision.

It was noted that the implementation of the Act fills a gap in the Civil Procedure Rules of 2016, which contain procedures contemplating remedies under the Act. “In the absence of this Act, litigation in this vital area of the law has been stymied and fraught with a number of procedural hurdles some of which were laid bare in the recent CCJ’s ruling in the case of The Medical Council of Guyana v Jose Ocampo Trueba, CCJ Appeal No. 2018/001, where the Honourable Court declared that prerogative remedies were no longer available in Guyana,” the Bar Council added in the statement, before noting that the implementation of the JRA is of vital importance to good public administration in a democratic society.

The implementation of the JRA, according to the Bar Council, allows citizens ample remedies against the State and leveling the playing field. As a result, it said it looks forward to the speedy implementation of the Act.

In a press statement on Tuesday evening, Williams claimed that the decision of the Court raises some important questions regarding governance and the separation of powers between the executive arm of the government and the judiciary, which had been raised during the arguments in the case.

In her ruling on Monday on an application made by attorney Anil Nandlall, Justice George found that Williams, who is also the Minister of Legal Affairs, had a duty to have already brought the legislation, which is intended to work in tandem with the Civil Procedure Rules, 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 the law.

In his statement, Williams resurrected the argument he presented to the High Court and noted that the Parliament “vested the power upon the Minister as a member of the Executive arm of the Government to determine the commencement of the Judicial Review Act and there has been no willful or malicious failure or refusal by the Attorney General to commence the Act as alleged in the case brought before the Court.”

Consequently, he noted 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 assented.

“This would also allow the Cabinet the opportunity to engage in wide consultations with the Guyanese people before the Act is brought into law. This would ensure that improvements and amendments be made to cure existing (lacunae) in the current Judicial Review Act and to bring it in line with established regional and international best practices. Regrettably, the decision of the Court is premature as there has been no opportunity for consultation on the commencement of the Act,” Williams lamented in the statement.

He claimed that though the Act was assented to on November 2nd, 2010 the previous PPP/C government had not enacted its provisions up to May, 2015, five years later, so as to prevent the opposition and litigants from making claims under the Act which would give them a wide range of reliefs, including compensation for damages.

He also argued that the operationalising of the Act was not dependent upon the passing of the Civil Procedure Rules as argued before the court and that the Parliament and parties in Parliament in 2010 agreed and provided in section 1 of the Act that “the Judicial Review Act shall come into operation on a date appointed by order of the Minister.”

“Moreover, the reference to “rules of Court” in the Act contemplated rules that were already in force as there was already provision in the law for claims for judicial review,” he added, before concluding that the decision presents a great opportunity for the CCJ to answer these.