…contends chief justice misdirected self on several points

ATTORNEY General and Minister of Legal Affairs, Basil Williams, SC. has filed a Notice of Appeal against the decision of Chief Justice (ag) Roxane George-Wiltshire, which ordered him to bring into force the Judicial Review Act last month.

The chief justice last month ruled that Williams’ failure to bring the act into force the is unlawful and in violation of the will of the people.

However, in the Notice of Appeal seen by the Guyana Chronicle, Williams is calling on the Court of Appeal to set aside the entire decision handed down by the chief justice on the ground that she “committed a specific illegality when by her ruling she purported to dictate to the Minister of Legal Affairs her own timelines to bring the Judicial Review Act into force, in contravention of the doctrine of the Separation of Powers.”

According to Williams, the chief justice usurped the discretion vested in him by the legislature to bring legislation into force. The chief justice’s ruling follows an application to the court last year by Former Attorney-General and Minister of Legal Affairs, Anil Nandlall, calling for Williams to be mandated to bring into force the Judicial Review Act.

Nandlall had acknowledged the said Act was not brought into operation by him when he served as Legal Affairs Minister. He said it was because there were no complementary procedural rules of the court to accompany the said Act, as the Rules of the High Court 1955 made no provisions for judicial review.

Civil procedure rules
Nandlall said that at that time, new Civil Procedure Rules were in draft form and these rules laid out the legal procedure in respect of how the court can be approached to access the remedies provided for in the Judicial Review Act.

However, he said on February 5, 2017, a Practice Direction dated January 23, 2017 and published on February 4, 2017 in the Official Gazette by the Honourable Chancellor (ag.) Mr. Justice Carl Singh, directed that the Civil Procedure Rules 2016 shall take effect from February 6, 2017; the said Practice Direction also provided that the Civil Procedure Rules 2016 shall govern the practice and procedure of all civil proceedings filed in the High Court of the Supreme Court of Judicature after February 6, 2017.

However, the Minister of Legal Affairs argues that the judge erred when she failed to apply the overriding objective of the new Civil Procedure Rules to deal with cases justly and not to exercise her discretion injudiciously by stepping into the province of the executive Arm of government.

Further, he posits that Justice George-Wiltshire committed a specific illegality when she ruled that he had breached a duty by not bringing the Judicial Review Act into force. “The learned judge committed a specific illegality when she ruled that the Appellant had breached a duty in violation of the letter and spirit of the Act itself, as well as the will of the Parliament,” the Notice of Appeal said.

Additionally, Williams contends that the chief justice erred and misdirected herself in law when she found that he did not have a discretion after the Civil Procedure Rules came into force, as well as that the specific discretion granted to the Minister of Legal Affairs by the legislature had been converted into an obligatory duty to bring the Act into force after/when the Civil Procedure Act came into force.

“The learned trial judge erred and misdirected herself in law when in the exercise of her discretion, she usurped the discretion vested in the Minister of Legal Affairs by the legislature to bring into force a legislation which was clearly within his purview to so do,” Williams said in his grounds for appeal.

The Minister of Legal Affairs contends too that Justice George-Wiltshire erred and misdirected herself in law when she did not make a specific finding that to command the Minister of Legal Affairs to bring the Act into operation by a certain date was a clear usurpation of the function and authority of the minister by the judiciary.
Not within powers of court

He argued too that the trial judge erred and misdirected herself in law when she did not find that where the legislature has given a minister the power to decide when to bring a statute into force, it was not within the powers of the court to compel the minister when to bring the Act into force.

Moreover, Williams said too that the issuance of a mandatory order to command him to act within a specified time where he had not refused to carry out a statutory duty amounted to an error and misdirection in law. He contends that the chief justice also erred and misdirected herself in law when she did not find that it was a matter for the legislature to decide what provisions it would make for the commencement of any particular statute or any particular part of it and not the judiciary.

“The decision of the learned trial Judge was unreasonable in law and cannot be supported, having regard to the evidence,” the Minister of Legal Affairs said, while noting that additional grounds of appeal will be filed when Justice George-Wiltshire’s written judgment becomes available.

In December 2017, the PPP/C filed a High Court Action to compel Williams to commence the Judicial Review Act 2010. Five months later, the High Court ordered, by way of a mandamus, that he must bring the Judicial Review Act 2010 into force.

Separation of powers
“The decision of the court raises some important questions regarding governance and the separation of powers between the executive arm of the government and the judiciary,” Williams said in a statement shortly after the ruling. He questioned whether the judiciary can govern and order the government to create law and also questioned whether the judiciary can direct the government to implement an Act that the PPP/C government deliberately failed to implement during its time in office.

Williams also argued that 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. He said the judiciary has an equally important role to play to protect the rights of citizens, but must exercise this responsibility with great care.

Williams further stated that the Parliament vested the power upon the minister as a member of the executive arm of the government to determine the commencement of the Judicial Review Act. “There has been no wilful or malicious failure or refusal by the attorney general to commence the Act as alleged in the case brought before the court. The attorney general is persuaded that an opportunity and consideration ought to be given to the executive to set a reasonable date for the commencement of the Judicial Review Act, given that eight years have passed since the passage of the Act.

This would also allow the Cabinet the opportunity to engage in wide consultations with the Guyanese people before the Act is brought into law. This would ensure that improvements and amendments be made to cure existing lacunas 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,” the attorney general said.