– MoLA warns against PPP using law as political tool

THE Ministry of Legal Affairs says the operationalisation of the Judicial Review Act was not contingent on the Civil Procedure Rules and asserted that the opposition’s interest in the new Act is for political purposes.

The ministry said too that it intends to follow best practice and consult with stakeholders before the implementation of the Act, noting that these consultations will 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, such as those highlighted by the CCJ and noted in the recent case of The Medical Council of Guyana-v-Jose.

The High Court recently ordered the attorney general to operationalise the Act and an attempt to have the decision stayed until the hearing of an appeal was disallowed by Appellate Court judge Rafiq Khan last week.

The act was passed in Parliament back in 2010; and although it was assented to by then President Bharrat Jagdeo, it was never implemented. Former Attorney General Anil Nandlall had argued in court that the reason the Act was not operationalised was due to the absence of the Civil Procedure Rules.

He said now that the rules are in place, it was incumbent on the government to operationalise the Act.

However, the Legal Affairs Ministry pointed out that Attorney General and Minister of Legal Affairs Basil Williams had previously refuted all allegations of wilful refusal to operationalise the Judicial Review Act.

NO STIPULATION
The ministry said that in 2010, there were no stipulations that the Judicial Review Act is by any means contingent upon the existence of the Civil Procedure Rules.

It outlined that Section 3(1) of the Act provides that an application for judicial review shall be made “in accordance with this and with rules of court.”

The ministry argued that the rules referred to in the Act are the rules that were, at the time, in force and did not expressly or implied refer to any rules of court to be made as alleged by the PPP/C and their allies.

“The PPP/C’s arguments surrounding the issues of enforcement of the Judicial Review Act are misleading. The hypocrisy of the PPP/C is palpable, since evidence is clear that the refusal of implementing the Act lies with the PPP/C since they had five years to act on behalf of the people of Guyana, from 2010-2015,” the ministry noted. It contends that the PPP’s aim is clear,” as they are using the issue at hand as a political tool and the people must be extremely cautious of the political propaganda of the PPP/C and the information being peddled in the press.

“It is reiterated that the Judicial Review Act was not dependent upon the passing of the Civil Procedure Rules 2016, as argued before the High Court and it does not negate the fact that the former attorney general and minister of legal affairs refused to bring the very Act into law, which he now argues must be brought into law.”

The ministry said the current government and its ministers are not shielded from any law as alleged by the PPP/C and their allies. “The remedies for judicial review of state and government actions are still available to litigants, as there are many cases that were brought forth against the current attorney general,” the ministry said.

OVERSTEPPING 
Meanwhile, the Attorney General’s Chambers in its affidavit appealing the High Court decision contended that the chief justice committed an 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 Separation of Powers and as such, exercised his discretion.

The state added that the chief justice also by her action usurped the discretion vested in the minister of legal affairs by the legislature, to bring into force a legislation which had no timeline and which was clearly within his purview to so do; and that she committed a specific illegality when she failed to apply the overriding objective of the New Civil Procedure Rules to deal with cases in the interest of the parties justly.

“… the chief justice committed a specific illegality when she ruled that applicant/appellant had breached a duty by not bringing the Judicial Review Act into force. That the Honourable Chief Justice erred and misdirected herself in law when she found that the Applicant/Appellant did not have discretion in the commencement date of Judicial Review, after the Civil Procedure Rules came into force,” the chambers said.

Additionally, the state contended that the chief justice erred and misdirected herself in law when she found 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 Rules came into force.

It said the findings by the chief justice are unsupported by any legal basis and that the learned justice erred and misdirected herself in law, when she issued a mandatory order to command the attorney general to act within a specified time, when the legislature did not fix a time limit and where there had not been a refusal by the Applicant/Appellant to carry out a statutory duty.