Attorney General and Minister of Legal Affairs, Anil Nandlall has indicated that the People’s Progressive Party/Civic Government is in the process of establishing a permanent Law Reform Commission with the intention of completing the law revision process.
“The Government of Guyana is committed to continue to work towards modernising our justice system, our legal system, so as to ensure that the rule of law remains the cornerstone by which our society is governed at every level, at the level of the Government and of course at the level of all agencies of State. A Law Reform Commission will soon be established and one of the initial primary focus will be [to] complete that exercise to revise our laws from 2012 to 2020 and be a permanent Commission that will look at the entire statutory landscape and modernise it across the board,” the AG said on Monday.
He was at the time addressing a virtual discussion hosted by the American Chamber of Commerce Guyana (AmCham) on the rule of law for foreign investments.
The Law Reform Commission Act was passed in 2016 under the A Partnership for National Unity/Alliance For Change (APNU/AFC) Administration but Nandlall said that the Ministry has now proposed some amendments to the Act which will make the Commission more broad-based.
He had earlier said that amendments being proposed would make the Commission more representative of the society as it would be constituted with persons who have been trained in different disciplines “so that you don’t have a Commission only of legally-trained minds, which was what the original Commission would have been under the current legislative framework”.
The Law Reform Commission seeks to reform and modernise Guyana’s laws – the majority of which were inherited from its colonial masters and were long overdue for review.
The APNU/AFC Government had established the Law Reform Commission Act, but failed to set up the Commission. In fact, Nandlall had revealed that the former Government splurged approximately $98.3 million on the Law Reform Commission with nothing to show for the spending.
Improving legal infrastructure
He reminded that President Irfaan Ali has directed that a statutory framework be created for a one-stop-shop for investors in an effort to make setting up a business in Guyana hassle-free and central.
The AG also posited that Guyana, as a new oil-producing State, needs a new and modern physical infrastructure for the Judiciary. He explained that for years there have been 12 Judges in the High Court and back in 2011 when he was first asked to serve as AG, he petitioned for that to be increased to 20.
However, with the current anticipated economic growth, he said the need is there for more than 20 Judges to be sitting in the High Court. Nandlall said he is cognisant of the fact that there is simply not the infrastructure there to accommodate that number of Judges at the same time and as such there is the growing need for infrastructural changes.
Revision of laws
Guyana, like many of the colonial Caribbean, inherited its Constitution and concept of the rule of law from Great Britain and to date, the influences of Britain in the legal statues are still very prominent. Judges would normally rely on British case law authorities, law texts and other statues for rendering decisions.
Over the years, there have been active reforms to local laws.
Nandlall, speaking on the principles of the rule of law as outlined by Lord Bingham in 2010, said that the guaranteed equal representation in the law concept has evolved over the years and Guyana has to get on trend.
In his 2010 book, Lord Bingham identified the core principle of the rule of law as being: that all persons and authorities within the State, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts. He went on to outline 8 principles which he saw as being the key ingredients necessary to support that aim.
The identified principles are: the law must be accessible, intelligible, clear and predictable; questions of legal right and liability should ordinarily be resolved by the exercise of the law and not the exercise of discretion; laws should apply equally to all; Ministers and public officials must exercise the powers conferred in good faith, fairly, for the purposes for which they were conferred – reasonably and without exceeding the limits of such powers; the law must afford adequate protection of fundamental human rights; the State must provide a way of resolving disputes which the parties cannot themselves resolve; the adjudicative procedures provided by the State should be fair; and the rule of law requires compliance by the State with its obligations in international as well as national laws.
Expounding on the first principle of the law being accessible, intelligible, clear and predictable, the AG said that it means every State has a duty to ensure that its laws are accessible. He explained that ordinary citizens must not endure an ordeal in accessing the law and that is why review of the laws are necessary.
He said that the time is here to ensure that the laws are reviewed and chronicled while alluding to the fact that during the post-March 2, 2020 General and Regional Elections debacle, the Judges would have complained about the state of disarray of the laws. That is where the Law Reform Commission would now come into play to chronicle the past eight years of laws.
The other component of the principle says the law must be intelligible, clear and predictable. It means the way in which the law is expressed must be intelligible and must be clear. That is another fundamental hurdle that the layman faces when attempting to read the law but there has been a movement worldwide to move away from that style of drafting and now a new concept has been developed in countries like Canada and Australia where the legal drafting is done in plain English. The AG said that this model is also being adopted locally.
He added that they are now moving away from that kind of complex, archaic, pedantic and sometimes ambiguous type of language which is historically associated with legislation.
“Law must be predictable – what it means is that the law must be applied in a predictable way so when a decision is made for example [in] relation to a particular factual matrix and the law is applied to that particular factual matrix, if there are similar facts that present themselves one would expect that the law is applied to get the same results that similar particular factual matrix produced so there is predictability in the law. Judges are expected to rule based on precedent, based on uniformity,” Nandlall said.