Dear Editor,

THERE seems to be propagating in Guyana’s Judiciary (and, ominously, even at the level of the Caribbean Court of Justice) a notion of judicial supremacy over the Executive on matters of government policy. It is wrong.It is unconstitutional.

It is inherent in our constitutionalism of elected governments, that any elected government is entitled to decide for itself what legislation (subject of course to any constitutional restraints) it wishes to promulgate for peace, order and good government. It is called executive prerogative or privilege. And it comes into sharp focus when (like the events which have happened in the present Judicial Review Act commencement matter) there is a change of political party in government.

And just as how the PPP/C government was entitled in the exercise of its prerogative in 2010 to enact the Judicial Review Act 2010(JRA); and entitled to have omitted to bring it into operation; it is that very and identical constitutional prerogative which entitles the APNU+AFC Government to decide for itself (as a matter of sheer policy) if, and when, the PPP/C Government-enacted JRA will come into operation. By this simple constitutional test and logic, the ruling of the learned Chief Justice (ag) ordering the APNU+AFC Minister (the Honourable Minister of Legal Affairs Basil Williams, S.C to bring the JRA into operation, must be plainly wrong.

Even accepting the learned Chief Justice’s reasoning that it is the “will of the people” that the JRA be brought into force (here I am relying on, and quoting from the GC report of Wednesday May 30, 2018 under the caption “Not so soon” exposes the sheer illogicality of the ruling. If the PPP/C government (and its then Minister of Legal Affairs – Ramson, S.C) was representing the people’s will (which is not fixed or immutable) in causing to be enacted the JRA in 2010, then, surely, the people’s will implicitly and contemporaneously changed upon the change of government in 2015 upon the election of the APNU+AFC; and this APNU+AFC Government is, and must be seen, equally, as representing that changed will of the people when it’s Minister of Legal Affairs (Basil Williams, S.C), omits, as a considered policy decision, not to as yet, bring the JRA into operation. It is simply a matter of equal treatment under the law; and even handedness by the judiciary towards all government.

Has an Orwellian disposition unwittingly crept into the judiciary so that the PPP/C government is viewed as more equal than a APNU+AFC government; so that where the PPP/C successive ministers of legal affairs were entitled to exercise their discretion/prerogative to have brought the JRA into operation and each exercised that discretion by way of opting not to bring it into operation, the APNU+AFC “Minister” has no such right. How and why could this be? The principle of constitutional neutrality vis-à-vis all governments appear to have been ignored.

So, was there some distinguishing, differential factor? To answer this question articulately I turn now to the argument about the Rules of Court. It seems to me that that Rules of Court argument in distinguishing the PPP/C Minister’s non-commencement, from the APNU+AFC Minister’s, is wholly irrelevant and without merit. It obfuscates the real issue: is it within the constitutional power/prerogative of the new APNU+AFC Government to have a new and different legislative policy regarding the JRA? It seems to me that seen this way, there has been no greater nonsense argued by Anil Nandlall than that, since some complimentary Civil Procedure Rules only came into place with effect from 6th day February 2017, it was only as of then, that the JRA was legally capable of being commenced, i.e. that the CPRs is a sine qua non for the JRA commencement.

The learned attorney general has condignly dealt with that feeble, red-herring argument of Nandlall in his statement (as reported in the above GC article) that “the reference to “Rules of Court” in the Act [Section 3(1)] contemplated rules that were already in force (for the time being in force) as there was already provision in the law for claims for judicial review”. The learned AG is plainly right. And if authority were necessary, I would refer counsel to the case of Attorney General V. Jardim (Claude) [2003] 67 WIR 100 where Chancellor Bernard gave a vintage historical analysis of applicable “Rules” on matters of judicial review in Guyana, tracing back even to pre-Independence.

There is no empirical evidence to suggest the inadequacy of those rules and practice for the operationality of the JRA, 2010. The inherent fallacy in Nandlall’s red-herring argument is this: the CPRs that came into force in 2017 has their genesis in rules that were drafted for discussion since 2002 (as Rules of the High Court prepared by former Chancellor Kenneth George and commissioned by the Carter Centre Guyana) Chancellor George could not have somehow, as if by Divine prescience, telescopically, materially anticipated that some seven to eight years later a JRA would be enacted; and in such anticipation, specifically make rules to cater for such JRA. The point here, is that the JRA was not the raison d etre for the new CPRs; their convergence is coincidental. (To be continued)

Regards
Maxwell Edwards