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Court orders Attorney General to bring Judicial Review Act into effect
Attorney General, Basil Williams
Chief Justice (Ag) Ro`xane George-Wilshire issued a ruling yesterday which ultimately compels the Attorney General, Basil Williams, to bring into effect the Judicial Review Act, (JRA).
The JRA which was passed in Parliament in 2010 makes provision for citizens to challenge actions of public authorities on the grounds that their actions are unlawful, illegal, and capricious, contrary to some written law, ultra vires or violates the rules of natural justice.
Under the Act, the Attorney General and Minister of Legal Affairs is empowered to issue the publication of an order signed by him in the official Gazette to bring Judicial Review into operation.
However, Williams, the subject Minister, has been accused of refusing to bring the act into effect.
This resulted in a court action brought against him by Attorney at law Anil Nandlall, a former Attorney General of Guyana. Last year, Nandlall applied for an Order Nisi of Mandamus compelling Williams to bring into operation the Judicial Review Act of 2010.
In his arguments, Nandlall said that Judicial Review is that area of the law which guards against an abuse of power by any public officer, including ministers of government, any public authority or statutory tribunal.
Williams by refusing to bring the Act into operation hinders members of the citizenry aggrieved by any such matters from effectively mounting a challenge in the Court.
According to Nandlall, the new Civil Procedure Rules (CPR) elaborately sets out the procedure by which the remedies contained in the judicial review can be applied for in the court.
He noted that the issue has become even more complex with a recent ruling by the Caribbean Court of Justice, (CCJ).
The CCJ in a ruling in the case of the Medical Council of Guyana versus Jose Ocampo Trueba outlined that Guyana’s Civil Procedure Rules 2016 should be applied to all civil proceedings.
Chief Justice George yesterday, enforced the Order of Nisi Mandamus requested by Nandlall and directed the Minister of Legal Affairs to bring the Judicial Review Act into force by July 31, 2018.
In her ruling, Justice George noted that there were three main points to be addressed; whether the Minister had the discretion to bring into force the JRA after the promulgation of Civil Procedure Rules; whether the Minister had a duty to issue the order to bring into force the JRA and whether the Court has jurisdiction to compel the Minister to fulfill his duty.
Justice George also examined the relationship between the JRA and the Civil Procedure Rules (CPR).
She noted that the JRA contained the procedures by which remedies can be accessed under the Act; one is a complement to the other.
The Chief Justice also took into consideration information gathered from Hansard, (records of Parliament) which evidenced the fact that the JRA was unanimously passed by the House and was endorsed by the applicant, (Nandlall) and the respondent, (Williams) in the House.
Further, the Judge took into consideration Williams’s submission that the Court would be breaching the separation of powers doctrine if it were to mingle in the affairs of the legislative and executive.
Justice George made it clear that the JRA had been assented to already which meant it had passed the stage of the legislative arm. She noted, too, that in a situation where the Minister failed to perform his duty, the Court is empowered to compel the said Minister to do so.
The Court cited a number of legal authorities to support the conclusions reached. The Court Ordered the Respondent to pay to the Applicant $100,000 in cost. The Applicant was represented by Attorneys Manoj Narayan and Rajendra Jaigobin.
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