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Attorney General must activate Judicial Review Act pending appeal, not engage in “frustration and obstruction” of parliament

Former Attorney General and Minister of Legal Affairs, Anil Nandlall and current Attorney General and Minister of Legal Affairs, Basil Williams.

The Guyana Court of Appeal on Thursday dismissed Attorney General, Basil Williams’  request for a stay of execution of a High Court order that compels him to activate the Judicial Review Act (JRA) saying that he appeared bent on frustrating and obstructing people from accessing a wider array of legal remedies for the first time.

“I hold that the Applicant has not satisfied me that his appeal has any reasonable prospect of success, that it would be rendered nugatory and that there is any risk of injustice if I refused to grant his application for a stay of execution pending appeal,” Justice of Appeal, Rafiq Khan said in his judgment.

The JRA allows ordinary Guyanese to seek legal remedies such as injunctions and compensation against any public officer or any statutory agency. However, the law could not have been activated  without the Civil Procedure Rules which took effect in February, 2017.

Williams moved to the Court of Appeal to seek a stay of execution of the High Court ruling that had given him until July 31, 2018 to activate the JRA, based on lawsuit field by Attorney-at-Law, Anil Nandlall who was Attorney General at the time the National Assembly had approved the Bill in October, 2010 and assented to by the President one month later.

Justice of Appeal Rafiq Khan SC said the Attorney General’s position that he was not ready to activate the law because it had to be fine-tuned amounted to a frustration of the work of the legislature and the executive of which he is also a member.

Khan rejected the Attorney General’s argument that the doctrine of separation of powers prevented Chief Justice Roxane George-Wiltshire from instructing the executive to implement the JRA as she did on May 28, 2018. The Chief Justice had found that the executive had already finished with the process so that argument by Williams had no basis.

Williams filed the appeal on June 13 and requested a stay of execution of the Chief Justice’s order on July 17.

The Justice of Appeal, however, said that it is clear that in modern democratic governments the three arms of government “do not exist in their own separate bubbles.” “Our evolving democracy and modern system of government requires that they not be compartmentalized, but that they be allowed to intermingle and blend with one complementing and assisting the other rather than antagonizing and obstructing the other.

Khan agreed that the judiciary  stands apart as an independent arbiter prepared to intervene to ensure that one arm of government does not become antagonistic to another thereby frustrating or obstructing the functions of another arm. Otherwise, he added, the evolving democratic process enshrined in the constitution will disintegrate.

“In my considered opinion and I so hold, what we have in this case is the frustration and obstruction of the legislative arm of government in carrying out its constitutional mandate of making laws for the peace, order and good governance of Guyana by a member of the executive who reflexively seeks refuge in a rigid and anachronistic interpretation of the separation of powers long discarded by modern constitutional law thinking and concepts of good governance and democracy.

It is also apparent that the executive seems to be obstructing itself. The executive in the form of the President assented to the JRA. The applicant, who is both a member of parliament and a part of the executive, is resistant to bringing the JRA into operation. This is an unsatisfactory state of affairs,” Justice of Appeal Khan said.

The Court of Appeal Judge disagreed with the Attorney General that he enjoyed discretion to commence the JRA, saying the only way to get the Attorney General to bring the law into operation is through a mandatory order because he was duty bound to do so.

Justice Khan said in passing the JRA unanimously with the exuberant support of the Applicant himself, Parliament did not intend the Act to sit unimplemented, languishing indefinitely in some dusty volume of the Laws of Guyana.  Back in 2010, Williams had been an opposition parliamentarian and shadow Minister of Legal Affairs.

“Parliament passed the JRA for the peace, order and good governance of Guyana and intended it to become a vibrant tool in the development of our democracy, system of governance and to entrench the rule of law by supplying to members of the public who have complaints against administrative authorities a new array of remedies and procedures not previously available to them and to modernize the whole system of administrative remedies by bringing it into line with that which now exists not only in the Commonwealth Caribbean but in the Commonwealth as a whole,” Justice Khan said. 

The Appellate Judge said the Attorney General failed to convince the Court of Appeal how a stay of execution would cause the substantive appeal to be rendered useless. “The applicant has not explained how he will suffer irreversible hardship if the stay was not granted. It is somewhat ironic that the Applicant states that a decision in his favour in the substantive appeal would be frustrated in the absence of a stay of execution. He has not however articulated how the appeal is likely to be frustrated in the absence of a stay. I am unable to discern how having to reverse the commencement of the JRA if the Applicant’s appeal is successful impacts on rendering the appeal nugatory. That would be the solution, veither reverse the commencement or repeal the Act,” the judge said.

He disagreed with Attorney General’s contention that were the High Court’s order to be implemented, the floodgates of persons seeking redress under the JRA would be opened. “The floodgates for want of a better term have already been opened by the CCJ and I cannot see how giving the public a greater range of public law remedies and amodern 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,” he said. Against the backdrop of the Attorney General already saying that aspects of the JRA would have to be amended, the Judge said that was not a valid argument for stating that the appeal would be useless if the JRA is activated before its hearing and determination.