It would be imprudent for the Minister of Legal Affairs to bring the JRA, 2010 into operation in its present state

Jun 03, 2018 Letters

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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 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 its 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 appears 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 as 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, ie 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 Center Guyana) Chancellor George could not have somehow, as if by Divine prescience, telescopically, materially anticipated that some seven to eight years (7-8) 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. Indeed, there are certain revolutionary aspects in the JRA; and it is precisely because it is so revolutionary and extreme in certain aspects, (eg Section 9, 10, 12, 22) that it seems to me that a compelling case exists for its reconsideration; as the learned AG has posited in the GC article. The responsibility of this Government for legislation – making in the public interest requires, and imports, that it be (by both principle and authority alike) the sole judge of what legislation (within its partisan legislation-making capacity) is for the public good and should be enacted, or commenced, as the case may be. So, it is entitled to take the view that provisions in the JRA, 2010 such as section 9 (”Exhaustion of alternative remedies”) whereby the High Court Judge for judicial review is vested with a concurrent jurisdiction (not even limited to exceptional circumstances) which supplants the jurisdiction of the appellate Courts (presumably both the CoA and CCJ), is not for the public good, or in the public interest. If this is the thinking of the Government as appears from the AGs generalizations in the GC article, these are unassailable points in justification for this Government’s omission to bring the JRA into operation.
Be all that as it may, turning now briefly to the crucial question: whether it was competent for the High Court to grant the order of mandamus compelling the Minister ( a very different remedy from a declaration) to bring into force, the JRA, 2010. In my respectful view the State Liability And Proceedings Act, Cap 6:05 does not permit it. (see the analogous case of Collector of land Revenue South West District Penang (1986) 1 WLR 412, PC). But since the gravamen and crux of this matter, as I apprehend, is the constitutional freedom of a new government to reject, and depart from, even legislative policies/agenda of the predecessor government, there is a very poignant statement of principle by Viscount Haldane in a Privy Council case which merits reference. This was a case where the new government being dissatisfied with certain contractual arrangements entered into by the predecessor government declined to take the necessary legal steps to give those arrangements legal force. Relevantly, Viscount Haldane said viz “there is no doubt that the agreement in controversy was executed with all the solemnities… and the question is whether it is binding… with the policy of the new Administration in Newfoundland in repudiating it their Lordships have no concern. The administration may have acted harshly; or they may have been simply doing a public duty. Such a question is not one for a court of law, but is a domestic issue for the Government of Newfoundland and those to whom they are responsible” (Commercial cable company V. Government of Newfoundland (1916) 2 AC, at pages 614-615). Transposing that statement to our JRA coming into operation issue, I ask: was the PPP/C government JRA, 2010 enacted with all solemnities? Yes. Is there a change of government? Yes. Is it legally binding on the APNU+AFC Government to bring it into operation whereupon it becomes legally binding, until repealed (even as I must acknowledge that, technically, the JRA 2010 is not law, unless and until it is brought into force)? If one anticipates a reversal of the CJ (ag) ruling on appeal, the answer is – No. And, just as how that new Administration was within its prerogative as a matter of governmental policy to decline to take the necessary legal measures (take it to the Assembly for ratification) to give legal force to those agreements; so should the APNU+AFC Government be constitutionally entitled to decline to make a commencement order to bring into force the JRA, thereby preventing it from being binding, with all its imperfections and extremes, on this Government.
Yet, what are the Attorney General’s prospects of success at the Caribbean Court of Justice (I say nothing of the local Court of Appeal). In my respectful view the signs are ominous; and warrant cautious optimism. The CCJs decision in the Barbadian case of Edwards and Haynes V. The Queen (2017) CCJ 10 (AJ) gives us Caribbeaners much cause for unease as it patently illustrates a dispensation to arrogate unto itself its own perspective on matters of government policy and to, judicially, give effect to its perspective. This is clearly discernible from the very tenor of the judgments in the Edwards And Haynes case, quashing convictions for murder and reversing a unanimous decision of the Barbados Court of Appeal. There is by its very tenor and narrative, a nuanced tell-tale extract from the judgement of Justice Saunders: (for brevity because of space constraints the learned reader is referred to paragraphs “43”-“45” (inclusive) of the Honourable Justice’s Judgement. Suffice to quote a few sentences viz: “A new Evidence Act… was passed in Barbados in 1994. Its purpose was to reform the law… a decision was made to suspend the critical sections of the Act… The ostensible reason was that Barbados lacked the material resources to equip its police stations with the necessary recording devices. Over 20 years later these sections of the Act remain suspended… The suspension of these provisions severely distorts the effective operation of the Evidence Act and impedes fulfillment of many of its noble goals…” I must point out the convictions were quashed essentially became the alleged oral confessions were ruled inadmissible by the CCJ because of the failure of the Government to install recording devices. Rightly, the AG is concerned that the learned CJ(ag) has by her Order contravened the doctrine of separation of powers, which, sensibly, places matters of governmental policy of the type involved in our JRA commencement matter, outside the Judiciary’s territorial boundaries; and places them, sensibly, within the territorial boundaries of the Executive (ie the President and his Cabinet). The learned CJ (ag) has encroached into Executive territory. And viscount Haldane’s statement, in substance, embodies the separation of powers doctrine.
I end with this: it would be reckless and imprudent for the APNU+AFC Minister of Legal Affairs to bring the JRA, 2010 into operation in its present state. To judicially order the Minister so to do is to foist an imperfect PPP/C legislation on an unwilling, differently dispensated new APNU+AFC Government. That, frustrates and impedes, rather than promotes the people’s will. It is a matter of much intrigue and anxiety whether the CCJ (and the local Court of Appeal) would demonstrate judicial restraint and uphold the Minister’s prerogative (and by extension President Granger’s Cabinet) to decide for himself if, and when, the JRA, 2010 would come into operation.

Maxwell E. Edwards

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