Acting Chief Justice (CJ), Roxane George-Wiltshire on Monday ordered Attorney General (AG), Basil Williams to enforce the Judicial Review Act (JRA) by July 31, 2018.
In December of 2017, the CJ had granted an Order Rue Nisi of Mandamus, directing the Williams to show cause why the said Order Nisi should not be made absolute.
After reviewing all the affidavits files by both sides and legal arguments, Justice George-Wiltshire on Monday made the Order Rule Nisi absolute and directed the Legal Affairs Minister to bring the Judicial Review Act into force.
The National Assembly passed the Bill and it was assented to by the then President Dr Bharrat Jagdeo 2010. However, it was never operationalised.
Attorney-at-law and former Attorney (AG) Anil Nandlall, had moved to the court to determine; whether the Minister had discretion to bring into force the Judicial Review Act (JRA) after the promulgation of Civil Procedure Rules; whether the Minister had a duty to issue the order to bring into force the JRA; whether the Honourable Court can compel the Minister to fulfill his duty.
In addressing the first issue, the Chief Justice examined the relationship between the JDA and the Civil Procedure Rules (CPR) and noted that the CPR expressly mentioned that the Judicial JRA contained the procedures by which remedies can be accessed under the Act.
The acting CJ also took into consideration the Hansard, which evidenced the fact that the JRA was unanimously passed. Its importance was endorsed by both the Applicant and the Respondent in the House. It was also recognised in the debates that the Act will come into force with the CPR.
Having outlined the importance of the JRA the Court considered the time frame which would have been reasonable for the Minister to exercise any discretion he had. The Respondent had claimed that the Presidential Legislative Agenda did not take into consideration the enforcement of the JRA.
The Court rejected this argument and concluded that the CPR was promulgated since 2010, and that the present Government was in power and that 3 years now and yet failed to bring the Act into force, notwithstanding, that the Respondent was called upon, in writing to do so, by both the Applicant and the Guyana Bar Association.
The Court accepted the applicant’s submission that when the CPR came into force, the discretion which the AG’s had to bring the Act into force was transformed into an obligatory duty and the Respondent failed to discharge this duty.
The Chief Justice also considered the AG’s submission that the Court would be breaching the separation of powers doctrine if it were to mingle in the affairs of the legislative and executive.
However, the Court made it clear that the JRA had been assented to already which meant it had passed the stage of the legislative arm. Further, that in a situation where the Minister failed to perform his duty, the Court is empowered to compel the said Minister to perform his duty.
The Court cited a number of legal authorities to support the conclusions reached. The Court Ordered the Williams to pay to the applicant $100,000 in cost.
