Dear Editor,
IN June, I wrote a letter on the contentious Judicial Review Act, 2010 (“The Chief Justice Ruling on the Judicial Review Act”, GC, June 6-7; “it would be imprudent for the Minister of Legal Affairs to bring the JRA 2010 into operation in its present state” KN June 03). I am compelled (perhaps impelled) to write another. In that June letter, I unveiled the red-herring, cock-and-bull arguments of Attorney Nandlall that PPP/C Ministers of Legal Affairs could not have legally brought the JRA into operation, because there were before February 6, 2017 no Civil Procedure Rules (“CPR”) yet in force, as there are now. And I argued (not without force) that a new APNU+AFC government has (in the events which have happened) an absolute prerogative to decide for itself its own legislative agenda and policy, unfettered by the PPP/C legislative agenda and policy. This you might think is sheer commonsense and constitutional logic. Such prerogative is but one of the incidents and beneficent purposes of the constitution’s scheme of General Elections. Governments are elected to fashion and pursue their own legislative agenda, programme and policies.

Besides, and moreover, it is a legal impossibility for a non-binding law as the JRA, 2010, to create a legal, binding duty to act to bring that JRA into force.

So, how and why was the attorney general’s application for a stay (pending the hearing of the substantive appeal) of the chief justice’s ruling ordering him to bring the JRA, 2010 into operation, refused by Justice of Appeal Rafiq Khan (“Amendments to review act coming” GC Sunday, August 12). That refusal is an outrage. Appellate Courts are created to correct error/miscarriage of justice by a lower court. So, that refusal might suggest that in the view of that learned justice of appeal, the attorney general’s appeal is bound to fail. I hold no brief for the attorney general and minister of legal affairs, so I am entitled to ask this question: is the refusal some manifestation of an Orwellian judicial mindset that would deny the APNU+AFC government that equal freedom to reject or disapprove of the JRA in its present state, that the PPP/C government (and by extension its controlled Parliament) enjoyed and exercised in 2010 to enact, the JRA?

In our constitution, all governments are equal; none is more equal than another. The right and prerogative of one government to make involve the proposition that it is equally the right and prerogative of another government (subject of course to any constitutional limitations or restrictions– none of which exists in this matter) to unmake or disapprove (wholly or partly) as it sees fit; and in its own time line. It is such simple, yet profound constitutional tenet, that both the learned chief justice (ag) and the justice of appeal, ignore. It is President David Granger’s government, and not the courts, whose Cabinet must in the final analysis (as a matter of governmental policy) decide if, and when, the JRA would be brought into operation, the minister being but a mere statutory conduit of such a cabinet decision. This is how the constitutional machinery of ministerial portfolio assignment works. This is sound constitutional law; and if any principle of administrative law judicial review is inconsistent with it, that principle is, to the extent of its inconsistency void (article 8). Turning briefly to the nature of the JRA. What does such indefinite prospectivity connote and import? It seems to me that the question of the judicial enforceability (for in substance that is what the CJ (ag) Order to the Minister is) of such a prospective legislation against an unwilling and reluctant NEW government is the crux of this matter. This type of prospectivity, excludes certainty; it imports and is pregnant with uncertainty of commencement. The courts ought not to make certain, what Parliament, recognising the vagaries of governmental conduct of a nation’s affairs that can contrive to vex any government, has made uncertain. For, surely, the draftsman by providing for the commencement of the JRA in these words viz “ shall come into operation on a date appointed by order of the minister” (section 1) must have addressed his lawyer’s mind to the vicissitudes of a change of government happening; and, as it is, the JRA being a non-binding law pending its commencement.

Recently in the Trueba case, the CCJ interpreted the CPRs as being applicable “notwithstanding (and perhaps because) the Judicial Review Act [(2018) CCJ 8 (AJ) at 22] does not apply…” I mention this extract for two reasons: one, there is, ominously, no obiter dicta even remotely suggesting that the JRA is a sine qua non for the efficient application of the CPRs; the other is that it eminently supports my red- herring, cock-and-bull characterisation of Nandlall’s argument/case. By its self-induced incorporation of the JRA by reference, into the CPR (see Rule 56), the makers of the CPRs have not thereby created any duty on the minister. Put simply, they have as makers of subsidiary legislation (ie the CPRs), absolutely no jurisdiction whatsoever to have imposed any duty on the minister qua minister, as per section 1 of the JRA.

Turning to the question of factual justification for non-commencement, I mention that Barbados has its Administrative Justice Act, (the equivalent of our JRA, 2010). In the Barbadian case of C.O. Williams Construction Ltd V. Blackman (1994) 45 WIR 94 in reference to section 5 of the AJA (B) [corresponding to section 8 of our JRA, but without the outlandish, odd, unknown concepts of “advisory declaration” and “prospective declaration “) the Privy Council lamented that “… the interpretation of section 5 of the Administrative Justice Act raises a question of difficulty and importance…”. How much more difficult to interpret would not our JRA in its present outlandish conceptualisations be? Did the draftsman of the JRA take into account the settled constitutional un-reviewability of service commissions decision? Not at all. These are all relevant factors that a prudent minister must consider. One must assume that this attorney general has done due-diligence research on which basis he has advised Cabinet of the utter imprudence and ill-advisability of bringing the JRA 2010 into force, without substantial amendments, to be determined after meaningful consultations. And even more imperfections and conceptual oddities in the JRA are discernible. And, yet a stay has been refused!

On balance, and having regard to the formidable, unassailable constitutional and other arguments in favour of the attorney general’s case, it must be a challenge for the learned justice of appeal to articulate some (reportable) reasoned justification for refusing or disallowing the attorney general’s application for a stay. It is not as if the wheels of judicial review justice has somehow stopped turning since the CPRs 2016 came into force from February 6, 2017, and that the wheels can only recommence turning with the JRA being brought into operation. Far from it, quite the contrary, as the CCJ Trueba decision and reasoning show. The inference is irresistible that in refusing the AG’s application for a stay, the justice of appeal (part-time) in exercising his Rule 19 of the Court of Appeal Rules Cap 3:01 jurisdiction, either failed to relate principles to the undisputed facts of this matter, or asked himself the wrong questions. Is it constitutionally permissible under the doctrine of separation of powers, for a court to foist on a minister a duty that conflicts with a jurisdictionally proper Cabinet decision that falls well and squarely within Cabinet’s legislative territorial boundaries. Has the presumption that the minister has not obtained from the Cabinet its no-objection to the making of a commencement order been rebutted? Respectfully, I pose these question to all the learned justices of appeal. Judicial vigilance and restraint to foil or thwart the PPP/C contrivance in its volte face to operationalise the JRA surreptitiously through the courts is not just an option; it is a constitutional imperative.
I end with this: the PPP/C government could have opted for a fixed-date commencement of the JRA 2010, even in a timeline of years (my research has discovered a precedent in the UK where the Human Rights Act, 1998 had a commencement provision (similar to section 1 of our JRA) as regards its substantive provisions, but the government had given extra legislatively, an indication that its commencement would be October 2, 2000, some two years later). The PPP/C gave no such extra-legislation fixed time line. They left its commencement entirely open-ended and indefinite with all its attendant constitutional ramifications and possibilities. The inconvenient truth (as one discerns) is that they must have been ambivalent about its commencement, because on one possible view of a benefit vs. burden analysis, it was perceived as pro-opposition. So, having created their Frankenstein of indefinite prospectivity, the PPP/C (by its surrogate former AG Nandlall), now resorts to the courts to compel the exercise of an arguably non-justiciable function to commence it. And, with an accustomed degree of cheap, misleading rhetoric, they have (perhaps not unsurprisingly) politicised this matter. What presumptiveness! I apprehend, that just as happened ultimately in the Cedric Richardson (Presidential term limit) case, the PPP/C will, in time, be told emphatically that the law and facts in this JRA, 2010 commencement matter is decidedly in favour of the attorney general and minister of legal affairs.

Regards
Maxwell E Edwards