Attorney General and Minister of Legal Affairs, Basil Williams and Attorney-at-Law, Anil Nandlall- the man he took over from in 2015- may soon battle at the Guyana Court of Appeal over whether the High Court enjoys the right to order the Executive to activate the Judicial Review Act.
Williams wants more time to hold consultations and possibly amend the Act before it ordering that it comes into force.
Williams did not explicitly say that he would appeal Chief Justice Roxane George-Wiltshire’s decision this week that he must operationalise the law by July 31, 2018. “The decision presents a great opportunity for the Caribbean Court of Justice to answer these serious questions of governance and the separation of powers,” Williams said.
In her decision, the Chief Justice reportedly discarded the State’s arguments on separation of powers on the grounds that the Executive had already completed its work on the Bill, to the extent that it had been approved by the legislature and assented by the President.
Former Attorney General and Minister of Legal Affairs, Nandlall said he was ready to fight a legal battle with Williams at the appeal courts. “I would love that. I would beat him at every step of the way,” Nandlall said.
Stating that the Judicial Review Act is “crucial” for the legal profession and public administration, Nandlall discarded Williams’ claim that he should share some of the blame for delaying the activation of the Judicial Review Act. “No! I keep saying that the Act could not have been brought into force without the new CPR (Civil Procedure Rules),”.
Attorney General Williams and Nandlall also traded barbs on the Rules, with Williams arguing that “reference to “rules of Court” in the Act contemplated rules that were already in force as there was already provision in the law for claims for judicial review.”
But Nandlall has since fired back saying that the old rules do not provide for judicial review. “Any first year Law student knows that. We never had judicial review in Guyana. What we had is the old prerogative writ…This is the first time so there is no procedure for judicial review under the 1955 Rules of the Supreme Court,” he said.
“The Attorney General is the singular lawyer in the legal profession who feels that the Judicial Review Act is connected to the old rules,” Nandlall said.
Then Chancellor of the Judiciary, Carl Singh had paved the way for the CPR to take effect in February, 2017.
On the question of the separation of power between the Executive and the Judiciary, the Attorney General asked The decision of the Court raises some important questions regarding governance. They are whether the judiciary govern, order the government to create law, and direct the current Government to implement an Act that the PPP-C government deliberately failed to implement during its time in office. “The people of Guyana have vested power in the Cabinet as an expression of the Executive arm to govern and manage the affairs of the country. The Judiciary has an equally important role to play to protect the rights of citizens but must exercise this responsibility with great care,” Williams said.
Rebutting that argument, Nandlall stated that “it is the separation of powers doctrine that authorises the judiciary to compel an errant public officer or minister of government to perform duties that the law imposes on him.”
Williams said in a press statement after Monday’s decision by the Chief Justice that already eight years have passed since the Judicial Review Act was approved by the National Assembly, and there is need for more time for consultations to be held.
He denied that ever refusing or failing to operationalise the Act. “There has been no willful or malicious failure or refusal by the Attorney General to commence the Act as alleged in the case brought before the Court,” said Williams.
He suggested that the Judicial Review Act might be amended before it is activated. “This would ensure that improvements and amendments be made to cure existing lacuna’s in the current Judicial Review Act and to bring it in line with established regional and international best practices. Regrettably, the decision of the Court is premature as there has been no opportunity for consultation on the commencement of the Act,” he said.
The Judicial Review Act, which was signed into law by then President Bharrat Jagdeo, allows ordinary Guyanese to seek legal remedies such as injunctions and compensation against any public officer or any statutory agency.