EXPLAINING THE CONCEPT OF "JUDICIAL REVIEW" : THE HYATT CASE
Submitted by David Andre Comissiong, Citizen Advocate
The Claim or Application that was filed in the Supreme Court of Barbados on the 22nd of March 2017 entitled “David Andre Comissiong v Freundel Stuart, Minister Responsible for Town and Country Planning” constitutes an application for “Judicial Review” of the legality (or lack thereof) of the process by which the Minister Responsible for Town and Country Planning purported to grant permission to construct a 15 storey hotel on beachfront land at Bay Street, St. Michael.
However, it is clear to me from a number of the questions that have been posed to me since the filing of the Claim on 22nd March 2017 that there is not a very good popular understanding of this extremely important legal proceeding known as “Judicial Review”.
Basically, the power of “Judicial Review” is the power that the Supreme Court possesses to exercise scrutiny and control over the procedures that subordinate bodies (such as Ministers of Government and heads of Government departments) are required by law to undertake when exercising their decision-making and other functions.
Thus, in the case in question, the Barbadian citizen known as David Andre Comissiong has simply requested a Judge of the Supreme Court of Barbados to examine and scrutinize the process that the Minister Responsible for Town and Country Planning applied to the making of his decision to grant the permission in question, in order to determine whether the Minister adhered to all of the applicable rules and regulations.
The legal procedure known as “Judicial Review” is governed by the Administrative Justice Act, Chapter 109 B of the Laws of Barbados, and gives the Supreme Court the power to scrutinize and exercise control over any “administrative act or omission” of a “Minister, public official, tribunal, board, committee or other authority of the Government of Barbados exercising……. any power or duty conferred or imposed by the Constitution (of Barbados) or by any (statutory) enactment.”
And under Section 6 of the Act, the Court is empowered to entertain applications for Judicial Review that are made by any person “whose interests are adversely affected by an administrative act or omission” or “any other person, if the Court is satisfied that that person’s application is justifiable in the public interest.”
The background to my filing this particular Application for Judicial Review is that in August 2016 — after Mr. Mark Maloney had made a public statement asserting that the construction of a 15 storey Hyatt hotel would be commencing in September 2016 — I wrote to BOTH the Chief Town Planner and the Minister Responsible for Town and Country Planning expressing consternation at Maloney’s statement, and asserting that the Law of the land demanded that Maloney’s application be subjected to a physical and social “Environmental Impact Assessment” (EIA).
Needless to say, I received no response from either the Chief Town Planner or the Minister — not even a letter of acknowledgement of receipt of my letter!
Furthermore, Prime Minister Freundel Stuart — the Minister Responsible for Town and Country Planning — ultimately went ahead and simply granted Maloney’s company permission to construct their 15 storey hotel without having the benefit of the findings of an Environmental Impact Assessment to guide and inform him in the making of his decision.
It is against this background that I decided that it had become necessary to have a Judge of the Supreme Court of Barbados examine the manner in which Mr Stuart had dealt with the application of Maloney’s company, and determine whether Stuart’s decision was lawfully made.
It needs to be noted that there is a category of construction projects that require the carrying out of an Environmental Impact Assessment “before” any permission can be granted for them to go ahead. And this is so because these projects possess the potential to do serious damage to the precious physical and social environment of our beloved country.
It is therefore in the best interest of our country to have a Judge of the Supreme Court examine Mr Maloney’s project and its implications for the physical , social, cultural and heritage environment of Barbados, and determine whether the manner in which the Application for the project was processed by the Minister was in compliance with the standards and procedures required by the Laws of Barbados.