CAN THE JUDICIARY GOVERN?

Ministry of Legal Affairs and Attorney General’s Chambers

In December 2017 the PPP/C has filed a High Court Action to compel the current Attorney General and Minister of Legal Affairs Hon Basil Williams S.C., MP to commence the Judicial Review Act 2010. Five months later the Court has ordered by way of a mandamus that the Attorney General must bring the Judicial Review Act 2010 into force.

The decision of the Court raises some important questions regarding governance and the separation of powers between the executive arm of the government and the judiciary. First, can the judiciary govern?  Second, can the Judiciary order the Government to create law? Third, can the Judiciary direct the current Government to implement an Act that the PPP-C government deliberately failed to implement during its time in office.

The people of Guyana have vested power in the Cabinet as an expression of the Executive arm to govern and manage the affairs of the country. The Judiciary has an equally important role to play to protect the rights of citizens but must exercise this responsibility with great care. President Elect of the Caribbean Court of Justice (CCJJ) Justice Adrian Saunders when sitting as First Instances in the Eastern Caribbean Case of Benjamin et al v. Ministry of Information et al, an unreported case from High Court of Anguilla, Suit No. 56 of 1997, decided on the 7th January, opined:

“ …our democracy rests on three fundamental pillars, the legislature, executive and judiciary. All must keep within the bounds of the Constitution. The judiciary has the task of seeing to it that legislative and executive action does not stray outside those boundaries onto forbidden territory. If that occurs and a citizen withstanding complains, the court declares the trespass and grants appropriate remedies.

Within the constitutional parameters the legislative and the executives are responsible for enacting and implementing such policy measures as they consider to be most appropriate for the people. The judiciary has to be careful that it too does not stray from its function and usurp the authority and role reserved for the other two pillars.”

The Parliament vested the power upon the Minister as a member of the Executive arm of the Government to determine the commencement of the Judicial Review Act. There has been no willful or malicious failure or refusal by the Attorney General to commence the Act as alleged in the case brought before the Court. The Attorney General is persuaded that opportunity and consideration ought to give to the Executive to set a reasonable date for the commencement of the Judicial Review Act given that 8 years has passed since the passage of the Act.  This would also allow the Cabinet the opportunity to engage in wide consultations with the Guyanese people before the Act is brought into law. This would ensure that improvements and amendments be made to cure existing lacuna’s in the current Judicial Review Act and to bring it in line with established regional and international best practices. Regrettably, the decision of the Court is premature as there has been no opportunity for consultation on the commencement of the Act.

The facts are that the Judicial Review Act 2010 was assented to on November 2, 2010.  The Parliament and parties in Parliament in 2010 agreed and provided in section 1 of the Act that “the Judicial Review Act shall come into operation on a date appointed by order of the Minister”. The PPP/C government up to May 2015 – 5 years after the passing of Act refused to commence the Act. The PPP/C refused to pass the Act to prevent the Opposition and litigants from making claims under the Act which would give them a wide range of reliefs including compensation for damages.

The Judicial Review Act was not dependent upon the passing of the Civil Procedure Rules 2016 as argued before the Court and it does not negate the fact that the former Attorney General refused to bring the very Act into law, which he now argues must be brought into law. Moreover, the reference to “rules of Court” in the Act contemplated rules that were already in force as there was already provision in the law for claims for judicial review.

The decision presents a great opportunity for the Caribbean Court of Justice to answer these serious questions of governance and the separation of powers.

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