AG complies with court order to activate judicial review law

After months of pressure, Attorney General Basil Williams has finally issued an order to operationalise the Judicial Review Act (JRA) in compliance with a months-old court order.

The commencement order, signed by Williams on August 27th and published in the Official Gazette on the same date it was signed, appoints July 31st, 2018 as the day on which the Act shall be deemed to have come into operation.

The retroactive order comes almost two weeks after Williams made another order that identified January 1st, 2019 as the commencement date despite the order by Chief Justice (ag) Roxane George in May specifically stipulating that the Act be operationalised by July 31st, 2018.

The previous order appeared to be an attempt by Williams to forestall contempt of court proceedings that were initiated by former Attorney General Anil Nandlall over his failure to bring the law into force.

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 it 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’ subsequent 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.