In December 2017, a High Court action was filed 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 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?
It is important to note that 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 (CCJ), 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 the High Court of Anguilla, Suit No. 56 of 1997, decided on January 7th, opined: “… Our democracy rests on three fundamental pillars, the Legislature, the Executive and the 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 of Guyana vested the power upon the Legal Affairs 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 be given to the Executive to set a reasonable date for the commencement of the Judicial Review Act, given that eight 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 also ensure that improvements and amendments be made to cure existing lacuna’s in the current Judicial Review Act and 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”. But up to May 2015, 5 years after the passing of Act, it was not enforced.
Be that as it may, the situation presents a great opportunity for the Caribbean Court of Justice to answer these serious questions of governance and the separation of powers.
