The Court of Appeal is set to rule on a summons to stay the order of Chief Justice, (Ag) Roxane George in relation to the Judicial Review Act (JRA). Justice of Appeal (Ag) Rafiq Khan heard arguments presented by Attorney-at-law, Anil Nandlall, the State Solicitor General and Deputy Solicitor General, in relation to the matter.
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 violates the rules of natural justice.
Under the Act, the Attorney General (AG) and Minister of Legal Affairs is empowered to issue the publication of an order signed by him in the Official Gazette to bring Judicial Review into operation.
However, Basil Williams, the subject Minister, has been accused of refusing to bring the Act into effect.
This resulted in a court action brought against him by Nandlall, a former Attorney General. Last year, Nandlall applied for an Order Nisi of Mandamus compelling Williams to bring into operation the Judicial Review Act of 2010.
In May, acting Chief Justice George issued a ruling which ultimately compelled the Attorney General to bring into effect the Judicial Review Act, (JRA) by July 31, last.
However, instead of complying with the order, the AG chose to appeal the CJ’s ruling. He filed an application in the Court Of Appeal. In addition to this, Williams is asking the Appeal Court for an order to stay the CJ’s initial ruling, until the determination of the substantive appeal.
Justice Khan is expected to rule on this issue on Thursday, August 9, at 11:00 am. So far, (Nandlall) the respondent in the matter has argued that the appeal has no likelihood of success. He said too that the AG has given the Court no proper or plausible reason why the Act, which was passed in 2010, should not be brought into force.
In his initial arguments, Nandlall noted that Judicial Review is that area of the law which guards against an abuse of power by any public officer, including ministers of government, any public authority or statutory tribunal.
He opined that Williams, by refusing to bring the Act into operation, hinders members of the citizenry aggrieved by any such matters from effectively mounting a challenge in the Court.
According to Nandlall, the new Civil Procedure Rules (CPR) elaborately sets out the procedure by which the remedies contained in the Judicial Review can be applied for in the court. He noted that the issue has become even more complex with a recent ruling by the Caribbean Court of Justice, (CCJ).
The CCJ in a ruling in the case of the Medical Council of Guyana vs. Jose Ocampo Trueba outlined that Guyana’s Civil Procedure Rules 2016 should be applied to all civil proceedings.
In a brief comment following Thursday’s hearing, Nandlall noted that once the Appeal Court further enforces the order of the CJ and Williams does not bring the JRA into effect, he will file contempt of court proceedings against him.
In her ruling in May, the Chief Justice noted the JRA contained the procedures by which remedies can be accessed under the Act; one is a complement to the other.
She took into consideration information gathered from Hansard, (records of Parliament) which evidenced the fact that the JRA was unanimously passed by the House and was endorsed by both Nandlall and Williams in the National Assembly.
Further, the Judge took into consideration Williams’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.
Justice George made it clear that the JRA had been assented to already, which meant it had passed the stage of the legislative arm. She noted, too, that in a situation where the Minister failed to perform his duty, the Court is empowered to compel the said Minister to do so.
The Court cited a number of legal authorities to support the conclusions reached.
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