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State no longer wants early hearing for JRA appeal
Attorney General and Minister of Legal Affairs Bail Williams
The State is no longer requesting an early appeal hearing to a ruling handed down in August by Chief Justice (ag) Roxane George. The Chief Justice had compelled Attorney General and Minister of Legal Affairs, Basil Williams, to bring the Judicial Review Act (JRA) into effect, by July 31, 2018.
In fact, yesterday, the Attorney General and Deputy Solicitor General Debra Kumar, through a Notice of Withdrawal and Discontinuation, asked Appellate Judges Chancellor of the Judiciary (ag) Yonette Cummings-Edwards, Dawn Gregory and High Court Judge Brassington Reynolds, to no longer consider an application that was previously filed before the court for an early hearing in the matter.
The presiding judges granted the State’s request, but awarded cost of $50,000 to the Applicant Attorney-at-Law Anil Nandlall. Attorney-at-Law Rajendra Jaigobin, who appeared on behalf of Nandlall, requested costs in that sum. As it is, the appeal of the High Court’s ruling still stands.
Yesterday, the Court of Appeal was scheduled to commence hearing arguments on why the matter should be heard with urgency.
During his address to the court yesterday morning, the Attorney General explained that the reason for withdrawing the application for early hearing was because the President, recently at Parliament, listed the JRA on his legislative agenda for 2019.
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 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.
After hearing arguments from both sides, the Chief Justice 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 had 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.
After the High Court’s ruling, the Attorney General published in the Official Gazette the Commencement Order for the Judicial Review Act to come into effect on January 1, 2019. However, this was only done after the Court of Appeal turned down an application by the State to delay the Chief Justice’s order.
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