Nandlall asks court to jail AG until judicial review law is operational
Attorney Anil Nandlall yesterday filed contempt of court proceedings, which seek to have Attorney General (AG) Basil Williams SC be held at the Camp Street Prison until he brings the Judicial Review Act (JRA) into force.
This development comes just over a week after the Court of Appeal dismissed Williams’ application for a stay of execution of an order, made by Chief Justice (ag) Roxane George on May 28th, compelling him to operationalise the law on or before July 31st.
Nandlall, in an application filed in the High Court yesterday afternoon, asked for an order committing Williams to the Georgetown Prison, Camp Street, Georgetown “for such period and on such terms and conditions as are just for failing to bring the Judicial Review Act Chapter 8:06, into force….” He also asked for Williams to pay such costs as are just and to comply with any other order that the court considers necessary.
The matter has been fixed for hearing before Justice Navindra Singh on the September 14th at 9 am.
Despite Nandlall’s repeated warnings that he would move to the court to challenge Williams’ noncompliance with the order, the AG has made no effort to rectify the situation. In fact, he has deliberately avoided being served a copy of the order, which is necessary under the law when filing contempt proceedings. Nandlall, however, had enough evidence of service (on two employees) to proceed.
Government has since said that Williams’ actions will be the subject of a discussion at Cabinet and that a decision will be taken on how to proceed based on his recommendation.
Nandlall, in his application, highlighted the Chief Justice’s order and the Court of Appeal’s decision, while stating that the AG has knowledge about both of those matters.
He said too that his application is supported by the fact that copies of the order were served by High Court marshalls on two of Williams’ employees on July 17th and August 14th, respectively. He said that when an attempt was made to serve Williams on August 15th, his clerk informed that he was in a meeting and therefore it was impossible for a marshall to serve him.
While arguing that Williams “is obviously avoiding personal service,” Nandlall said that his conduct is in clear contempt of the Chief Justice’s order and the court.
He also submitted affidavits of service of the two marshalls who served the copies of the order as well as the one who attempted to service.
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 Civil Procedure Rules (CPR), into effect.
Among other things, the Chief Justice noted that with the CPR 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.
Appellate Justice Rafiq Khan SC, in delivering his decision last week, was critical of Williams’ 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.
“I must admit I found some difficulty as I attempted to rationalise the submissions on behalf of the applicant that the appeal would be rendered nugatory were I not to grant a stay of execution,” Justice Khan said.
The appellate judge maintained that the arguments brought by Williams had no reasonable prospect of success and therefore the application could not be granted.
He said that the solution would either be to reverse the commencement or repeal the Act. “I cannot see how giving the public a greater range of public law remedies and a modern system by which they may be obtained is such a bad thing. Having to amend the Act after its implementation would not render an appeal nugatory. Amendments to existing pieces of legislation are part of the normal business of the legislature. I do not see how having to amend the JRA subsequent to its implementation would render the appeal nugatory,” he noted.
However, Williams’ ministry, in a press release issued one week ago, 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, which was issued two days after the Appellate Court’s decision, 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….”