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January 1st, 2010

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Clerk needs to explain why he is now excluding discretion of Speaker to convene the Assembly when the public interest requires it

October 18th, 2014

The Stabroek News of October 16, 2014 reports the Clerk of the National Assembly, Mr. Sherlock Isaacs as saying that it was up to the government to set a date for the next parliamentary sitting. The report suggests that the statement followed the failure of the Chief Whips for both the government and opposition to find consensus on a date.

The National Assembly is subject to the Standing Orders, the authority of which no one disputes and which was recognised by Chief Justice (ag.) Ian Chang in the celebrated “budget cuts” case. It may be useful therefore to refer to the Standing Order 8, 2 taken from the website of the National Assembly under the name of the same Mr. Isaacs.

Here is the text, including the heading:

Sitting convened at the discretion of the Speaker

(2) If, during an adjournment of the Assembly, it is represented to the Speaker by the Government, or the Speaker is of the opinion, that the public interest requires that the Assembly should meet on a day earlier than that to which it stands adjourned, the Speaker may give notice accordingly and the Assembly shall meet at the time stated in such notice. The Clerk shall as soon as possible inform each Member in writing, or telegram or by appropriate electronic means.

Mr. Isaacs needs to explain why he is now excluding the discretion of the Speaker to convene the Assembly when the public interest requires it. Now if a Motion of “No Confidence” is not a matter of public interest then Mr. Isaacs might like to tell us what is.

There are three further problems I have with Mr. Isaacs. The first is whether he believes in the separation of powers; the second is why he would consider himself the person who should pronounce on the operation of the Standing Orders and finally whether he can advise on the source of the authority of the Chief Whips to determine the convening of the National Assembly.

Sad state of the judiciary

October 11th, 2014

Introduction
Today I want to turn the spotlight on the country’s judiciary but before I do so I will briefly recap on four exchanges in the newspapers between the Office of the Attorney General and the Ministry of Legal Affairs through its Permanent Secretary, Ms. Indira Anandjit, and me.

In her second letter published on October 10 Ms. Anandjit outdoes her first on October 8 in terms of abuse, distortions and outright untruthful statements. But there was a twist. She resorted to accusing me of chauvinism, claiming, dishonestly, that I “insinuated” that she did not write the first letter of which she is yet to assert ownership. What I said is that “Mr Nandlall would shelter under the coattails of his Permanent Secretary from which to throw pebbles at me.”

Ms. Anandjit’s call for help in the name of chauvinism is equally dishonest. In my letter in the Stabroek News of October 7, critical of Anil Nandlall’s inaction on the Judicial Review Act, I did not mention her name or refer to her even once. Yet, responding in defence of Nandlall, she used the opportunity on October 8 to attack me by name eleven times. In my second letter on October 9, I mentioned her name peripherally two times. In her response on October 10, she continued her personal attack, referring to me by name eight times. Now, nineteen times against two hardly supports any genuine cri de Coeur of misogynistic victimhood.
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Rules of Court for the Judicial Review Act were laid in parliament in 2010; onus is on Nandlall alone to make them operational

October 9th, 2014

It was as predictable as night follows day that Mr Anil Nandlall’s Office of the Attorney General and the Ministry of Legal Affairs would justify the four-year delay in bringing the Judicial Review Act into operation with the excuse that this was dependent on the making of Rules of Court (‘The Judicial Review Act cannot be brought into force until new Rules of Court are promulgated’ SN, Oct 8).

It was even predictable that Mr Nandlall would shelter under the coattails of his Permanent Secretary, Ms Indira Anandjit, from which to throw pebbles at me. This is not unlike what he did in the case of the ceremony for the announcement of the launch of the bungled Laws of Guyana by him and his ministry for which he craves compliments.

Mr Nandlall’s appears incapable of any public discussion without resorting to ad hominem comments and attacks, however misguided. On this occasion, his ministry’s employee suggests that I may have read but not understood the provision of the Judicial Review Act regarding applications thereunder. He could not bring himself to think that in obtaining information for my letter on the four-year failure by the Ramson/ Nandlall team I would have informed myself of the facts regarding that Act and the Rules.

Mr Nandlall habitually looks for scapegoats to explain his increasingly exposed shortcomings and failures. On more than one occasion he has sought to blame the delay for the operationalising of the Judicial Review Act on the Rules Committee chaired by Chancellor (ag), Mr Carl Singh. It seems that neither Mr Nandlall nor his Permanent Secretary is aware that that those Rules duly signed by the members of the Rules Committee were laid in the National Assembly on November 18, 2010 as High Court Rules 2010 – No. 4 of 2010. In the National Assembly of which Mr Nandlall was a member, the Rules were described as “flawless” by Mr Ramson, the then Attorney General.

Having been laid in the National Assembly, those Rules were ready to become operational on the date of publication in the Gazette, or some later date provided. Mr Nandlall as Minister of Legal Affairs has executive responsibility for the administration of justice and it is in him and him alone that the power and duty vest to bring the Judicial Review Act into operation. Under the High Court Act the Attorney General, or his appointee, is a member of the Rules Committee, which he appears not to know! I must ask, is Mr Nandlall for real?

Even if the rules were still in draft as Mr Nandlall believes, he compounded his poor knowledge by attempting to hoodwink the public into believing that the Judicial Review Act can only be brought into force when the entire body of new Rules of Court is promulgated. And if his Permanent Secretary knew a little bit more than Mr Nandlall does about administration she would have told him that all that is required is for the justice administration to lift from the new rules the relevant Part 47 comprising three pages of twelve paragraphs and publish that part separately.

That is not unusual. There are several recent precedents for the making of subsidiary rules or legislation for specific legal purposes including:

– The rules establishing the Commercial Court and setting out the procedures for the operation of that court;

– The Practice Direction Rule establishing the Constitutional Division of the High Court; and

– The Family (Proceedings and Procedures) Rules 2012 comprising 130 pages. Parenthetically, Mr Nandlall or his Permanent Secretary may wish to explain honestly why more than two years after the publication of the Family (Proceedings and Procedures) Rules, and even longer after the completion of the building to house the Family Court, that court has still not been established.

It is not that Mr Nandlall thinks it is easier to bring up rules of 130 pages than it is rules of three pages; it is that he is afraid to bring the Judicial Review Act of 2010 into being because it would facilitate legal challenges to the executive’s excesses and breaches of administrative law. It would give to the High Court the power to grant aggrieved citizens injunctions and declarations more easily than are available under the current rules.

Finally, in my view Mr Nandlall has taken the administration of justice to its nadir. I truly hope for the sake of this country that it does not get worse, although with Mr Nandlall and Ms Anandjit I am not confident.

Nandlall is frustrating parliament’s decision by failing to bring the Judicial Review Act into operation

October 7th, 2014

Please permit me to address briefly in your letter column two matters of public interest and touching on the administration of law in Guyana: the Deeds Registry and the Judicial Review Act, 2010.

On the Deeds Registry, it has been years since attorney-at-law and former Principal Officer, Deeds Registry Mr Leon O Rockliffe has been raising concerns about the state of the Deeds Registry, the statutory body that plays such an important role in protecting property rights in Guyana. His latest in SN on October 3, 2014 (‘Is the Deeds and Commercial Registries Authority a victim of the privatization process?) is the most plaintive yet. On each occasion, he has been ignored by the Minister of Legal Affairs, the legal profession and the other affected parties.

Editor, it may be that the media does not fully appreciate the grave implications of the deficiencies which Mr Rockliffe has tried to bring to the attention of the public. If it was not very serious I doubt that Mr Rockliffe would have persisted as he has. This is not a matter to be left to the letter columns of the newspapers; it deserves a full-scale investigative piece for which your reporter should interview Mr Rockliffe, the current Registrar of Deeds, the Attorney General and the President of the Guyana Bar Association, among others.

Secondly the Judicial Review Act which was passed in the National Assembly four years ago. On that occasion then Attorney General Mr Charles Ramson blew his trumpet about what he “personally wrote into the law” and how the Act testifies “to a system of transparency and accountability in the country”; Ms Clarissa Riehl described it as a “watershed moment” in that the Act avoided the need for persons to apply for prerogative writs and simply required an application for judicial review; and Khemraj Ramjattan praised the legislation for bringing to the citizenry “more armouries” against improper administrative action.

Mr Ramson had a full year to make the Order bringing the Act into force while Mr Nandlall has had another three. Both failed to do so. Ms Riehl meant well but she must now be wondering what has happened to that moment and Mr Ramjattan should be wondering too about the failure of his legal colleagues to deliver even a water gun, let alone armouries.

What Mr Nandlall is effectively doing is frustrating the decision of the Parliament by his failure to bring the Act into operation. A delay of four years is clearly intolerable and falls down on Mr Ramson’s promise “to bring the judicial process into the 21st century.”

The laws of Guyana – incomplete and incorrect

September 9th, 2014

Introduction
Today’s column is about the laws of Guyana, a revised version of which was published in late 2013 and stated the law at December 31, 2010. Before I get to the essence of this column, let us take three specific examples.

1. In 2013 the Ministry of Labour sought to bring legislation to amend the law in relation to overtime work and pay. It is well known that at least one employer who is awarded contracts for the supply of labour to the government was breaching the amended law. The Ministry however appeared powerless to prosecute that or any other employer partly because of the clumsy and careless manner in which the amending legislation was prepared.

2. In the new Laws of Guyana, a Note of Subsidiary Legislation in the front page of the Mining Act states: “Subsidiary legislation made under this Act have been omitted due to the advanced stage of preparation of new comprehensive subsidiary legislation”. Apparently the Law Commission, which includes two senior counsel and the chief Parliamentary counsel and his deputy, did not think it necessary to include the not inconsiderable list of the omitted subsidiary legislation which apply until the new comprehensive subsidiary legislation is published.

3. Similarly, in relation to the forestry sector, a Note on Subsidiary Legislation states: “The Forests Regulations have been omitted as new comprehensive Forests Regulations are shortly to be made.” Close to four years since the effective date of the Revised Laws, those new comprehensive Forests Regulations have still not been published.

Apparently, neither “advanced stage” nor “shortly” connotes imminent to the Ministry of Legal Affairs.
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