Latest update April 25th, 2024 12:59 AM
Jun 05, 2018 News
Even as concerns over the ineffective Judicial Review Act (JRA) take centre stage, several public commentators have been adding their voices to the debate.
Former Speaker of the National Assembly, Ralph Ramkarran, is the most recent public figure to join the conversation.
In a column posted in his blog site Conversation Tree, Senior Counsel Ramkarran shared insight on the adverse impact the absence of an effective JRA has on the members of the public.
The JRA which was passed in Parliament in 2010 makes provision for citizens to challenge actions of public authorities on the grounds that their actions are unlawful, illegal, and capricious, contrary to some written law, ultra vires or violate the rules of natural justice.
Under the Act, the Attorney General and Minister of Legal Affairs Basil Williams is empowered to issue the publication of an order signed by him in the official Gazette to bring Judicial Review into operation.
Williams has however been accused of refusing to bring the act into effect. His action resulted in a Court action taken by former Attorney General, Anil Nandlall.
Just last week, Chief Justice (ag) Roxane George issued a ruling which ultimately compels the Attorney General to bring into effect the JRA. However, the Attorney General has already indicated his intention to appeal the High Court ruling.
Steering clear of the ongoing feud between current and past Attorneys-General, Ramkarran elaborated on the reason why JRA is important to the public.
In his column the former Speaker highlighted an area of law called ‘public law’ in which Judicial Review is pertinent.
He explained that while much law notionally exists for the protection of the public, ‘public law’ more directly protects the rights of the citizen in his or her relations with the state and public bodies or authorities by holding them to account.
Ramkarran outlined further that the only remedies available in public law are of ancient origin, initially directed against the King– the Crown Office rules, 1906.
These are called ‘prerogative’ remedies issued by courts on the application of citizens for ‘judicial review’ to enforce their rights against the state or public authorities.
Ramkarran explained that “Among the provision are the writs of certiorari – to quash a decision, mandamus – to order something to be done, prohibition – to prohibit an act and the lesser known, quo warranto – challenging the right to hold an office. The writ of habeas corpus – ordering the production of a body, is linked to these.
“Where a public authority or body (this includes an individual who exercises a public function) has a right or duty to perform a function, or to omit to do so, that authority must act within the parameters established by public law.
These were all designed to protect the citizen from the state and public authorities.”
With the modernization of the procedure of public law provisions, Ramkarran noted that Guyana moved to the National Assembly in 2010 and passed the Judicial Review Act. However, the Act could not be implemented because it had to await the new rules of court (new Civil Procedure Rules) providing for public law applications, which were implemented in February 2017.
The Act essentially relies on the Civil Procedure Rules (CPR) for judicial review to be accessed.
The Trinidad–based Caribbean Court of Justice, (CCJ) outlined that the CPR should be applied to all civil proceedings. The Court noted in a case where a public officer/authority is challenged, the Judicial Review Act and the CPR are both necessities. However with the JRA not enforced, citizens are forced to seek remedies under the old provisions despite a ruling by the International Appeal Court.
According to Ramkarran, the JRA formalizes and substantially expands the right of a person or group, whose interests are adversely affected by an administrative act or omission, to obtain relief from the court through an application for judicial review.
He noted that eighteen specific grounds are set out on the basis of which an application for judicial review can be made. Among them are acts allegedly contrary to law, in excess of jurisdiction, an unlawful procedure, in violation of natural justice, violation of the Constitution, breach of proportionality, error of fact, violation of legitimate expectation and misfeasance in public office.
Since public law is essentially for the protection of the citizen against the state and public authorities, the expansion of grounds and remedies set out above, Ramkarran called for the Act to be implemented without delay.
The provisions, he said, “…immeasurably enhances the rights of and empowers the citizen who will now be in a far stronger position to seek and obtain protection against the state and public bodies.”
“Caribbean people have enjoyed these rights for decades. Guyanese deserve to, without delay,” he added.
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