…against court order to activate Judicial Review Act

GOVERNMENThas filed a motion seeking an early start to its appeal against a High Court ruling ordering Attorney General Basil Williams to bring into operation the Judicial Review Act, which was assented to by the then President Bharrat Jagdeo back in November 2010, but never enforced.

Williams from the onset has argued that the decision of the court raises serious issues of judicial interference with the powers of the executive, noting that the court has attempted to govern from the bench and to usurp the power which was explicitly vested in the Minister of Legal Affairs in breach of the doctrine of the separation of powers.

The state had also asked for a stay of execution of the High Court’s decision, which was made by Chief Justice (ag), Roxane George-Wiltshire. A hearing and possible decision on this request comes up this morning. Williams has argued that the matter is of urgent concern, as the state and the judiciary are likely to have serious issues as to how to treat with claims that have been brought under the Judicial Review Act prior to the appeal being heard.

He alluded to a similar case in the matter of Mohabir Anil Nandlall —v- The Minister of Legal Affairs et al, where Justice Nareshwar Harnanan on the 19th April, 2017, made a decision, inter alia, after hearing application for judicial review on Fixed Date Application in which the Honourable Justice Brassington Reynolds granted an order nisi of mandamus compelling the Minister of Legal Affairs to appoint the members of the Deeds and Commercial Registries Authority. He said this matter also dealt with judicial interference with the executive powers and the Minister of Legal Affairs caused a Notice of Appeal to be filed and same has not been heard to date, though the authority was approved by the Cabinet and appointed by the Minister of Legal Affairs.

Meanwhile, in its motion seeking an early hearing of the appeal , the AG’s Chambers called on the Court of Appeal to fix an early date for the hearing and determination of the Notice of Appeal filed herein on the 13th day of June, 2018. Additionally, the AG wants the court to permit and authorise the Applicant/ Appellant to prepare and settle the Record of Appeal forthwith and that the court dispenses with all other formalities and procedural requirements and order an early date for the appellant’s submissions and the respondent’s submissions in order to facilitate an early hearing.

The Notice of Motion was issued by Ms. Kim Kyte-Thomas, solicitor-general and Ms. Deborah Kumar, deputy solicitor-general and the affidavit in support was sworn to by Collene Liverpool – an attorney within the AG’s Chambers.

Liverpool in her affidavit 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. Liverpool added that the chief justice also by her actions usurped the discretion vested in the Minister of Legal Affairs, by the legislature to bring into force a legislation, which had no time line 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.

Additionally, Liverpool 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. She 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 AG 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.

The chief justice’s ruling had followed 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.

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.