… claims Judges breached separation of powers doctrine
Attorney General (AG) Basil Williams, along with top officials from the Deeds and Commercial Registries Authority (DCRA), are moving to the Court of Appeal to challenge a recent High Court ruling which was made against him in his predecessor, Anil Nandlall’s favour.
On April 19, 2017, High Court Judge, Justice Nareshwar Harnanan had upheld an Order Rule Nisi of Mandamus that was granted in March, compelling Williams to appoint the Governing Board of the DCRA. Williams was also ordered to pay Nandlall $100,000 in costs.
But the AG is fighting back, naming Nandlall as a respondent in his appeal which seeks to reverse Justice Harnanan’s ruling on the grounds that he “erred and misdirected himself in law.” The appeal also claims that Justice Harnanan and Justice Brassington Reynolds, who granted the order nisi, committed specific illegalities.
According to the appeal, Harnanan “erred and misdirected himself in law when he refused to attach any weight to the fact that (Williams) was proactive in seeking to have a more efficacious Board by seeking to strengthen and widen it, by the Deeds and Commercial Registries Authority (Amendment) Bill No 3 of 2017 awaiting passage through the National Assembly.” The appeal also claimed Justice Harnanan blundered in not acknowledging that Cabinet decided to take the proposed amendments to the National Assembly. In addition, the appeal said Justice Harnanan erred by not considering that Nandlall concealed from Reynolds that proposals pertaining to the Board were in bill.
Attorney General Basil Williams
The appeal claimed that “Harnanan erred when he failed to consider that despite the presence of the Board and the Respondent/Applicant there was a failure to unearth the fraudulent acts that were discovered occurring under their watch, by the Minister of Legal Affairs, after they left office.”
Illegal?
Williams, in his appeal, also stated that Justices Reynolds and Harnanan both acted illegally when, by their rulings, they “purported to dictate to (Williams), Cabinet and Government their own timelines to constitute the (DCRA) Board. The basis for this statement, according to Williams, was that this breached the separation of powers doctrine.
The Attorney General also cited the new civil procedure rules, saying that Harnanan failed to apply these rules to use his discretion judiciously. Williams claimed in the appeal that Harnanan failed to direct himself and Nandlall to cooperate to pass the DCRA bill through the National Assembly.
Williams said that Harnanan also failed to consider “that on the expiration of the Board in June 2016, two months were lost for the parliamentary recess August to October, 2016, the reduced sittings because of the one seat majority and the Christmas season, to effectively make it about eight months since the Board expired and not a year as claimed by the respondent.”
The appeal also claimed Harnanan, breaching the separation of powers doctrine, failed to exercise judicial restraint since the matter was before the National Assembly. The appeal faulted Justice Reynolds for granting the order nisi Mandamus and Harnanan for making it absolute.
It stated that Reynolds should, in the first place, have considered the burden was on Nandlall to prove that Williams had wilfully failed to reappoint the Board. In addition, the appeal claimed that both justices did not consider that Williams was not obligated to reappoint members of the DCRA Board, including the ministerial members.
Williams is thus seeking for Harnanan’s ruling to be set aside and Nandlall to be ordered to pay costs.
This move by the AG comes days before the Monday, May 8, sitting of the National Assembly, where the DCRA Bill 2017 is scheduled to be debated.
The Governing DCRA Board is non-functional, as the members of the Board whose tenure had expired, were not replaced by the Minister in accordance with Section 6 of the Deeds and Commercial Registries Authority Act.
The delay in appointing the DCRA Board has been a matter of concern, with Nandlall raising the topic on several occasions. He had also made written requests to his successor to make the appointment.
Legal Affairs Minister Basil Williams explained at a previous press conference that Government recognises the need for the Board to be broadened to include representatives from entities such as the Business Ministry and the Guyana Revenue Authority (GRA).
But Nandlall had pointed out that the amendment seeks to empower the Legal Affairs Minister to act in place of a Governing Board of the Deeds and Commercial Registries Authority when that Board has not been appointed. He noted that this Authority was specifically created to insulate the operations of the Deeds and Commercial Registries from ministerial interference, and to vest in the Governing Board the powers and responsibilities for the overall management, as well as the day-to-day activities of the Authority. Nandlall had moved to the courts and when the matter was first heard on March 8, Justice Reynolds granted an Order Rule Nisi of Mandamus, compelling Williams to appoint the Governing Board of the DCRA, and to show cause why the order should not be made absolute. It was Harnanan who subsequently upheld Nandlall’s arguments and made the order absolute.
