Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill
“The citizen ha(s) a legitimate interest in upholding the Constitution and the rule of law” –per Lord Hodge [May 8 2017]
Those persons who either heard or read last week’s media reports of the postponed hearing in what has now become known as the Hyatt matter, would have heard the applicant, Mr Comissiong, disclose the nature of the response filed by the defendant against his application for judicial review and his subsequent reference to a recent decision of the Judicial Committee of the Privy Council on appeal from Trinidad & Tobago that spoke to the issue of locus standi or standing to sue.
What first bears remarking for me about his comment is the sheer incongruity of the fact that Trinidad & Tobago, despite constituting the seat of the Caribbean Court of Justice and despite being for over 40 years an independent republic with a native Head of State, Executive and bicameral legislature, should still seek the authoritative opinion on the right of any of its citizens to challenge State action from a court constituted solely of British noblemen. Ah well. It is still an exercise in sovereignty, I suppose.
The decision itself is instructive. It appears that Mr Reginald Dumas, a former ambassador, High Commissioner and head of the Public Service, was not satisfied that two of the individuals nominated for membership of the Police Service Commission satisfied the criteria for appointment stipulated in the Constitution. The relevant provision read:
“The President shall…nominate persons who are qualified and experienced in the disciplines of law, finance, sociology or management , to be appointed as members of the Police Service Commission”
It should be noted that the process of appointment required the President to consult with the Prime Minister and the Leader of the Opposition in the nomination of the individuals. The President then notifies the House of Representatives of each of his nominations; a notification that is subject to the affirmative resolution of the House. On approval of the nominations, the President then makes the appointment.
In Mr Dumas’s view, two of the nominees of the President did not possess the requisite qualifications and experience and thus the Police Service Commission was improperly constituted.
In his affidavit accompanying the application for judicial determinations on the meaning of the phrase “qualified and experienced”, on whether the two nominees had the necessary qualifications and experience and on whether the PSC was properly and constitutionally constituted, Mr Dumas conceded that he would not be personally affected by the consequences of the appointments. Indeed, he affirmed:-
“Nor did I judge that I would be directly affected in my individual capacity by any possible consequences of the Notifications, if approved by the House of Representatives. Rather I was and am concerned as a citizen who has for many years written and spoken publicly about the need for good governance in this society, particularly including respect for our institutions such as our Constitution, which is the highest law of the land. I am therefore acting in what I consider to be the public interest of Trinidad and Tobago.”
One preliminary issue was whether the claim had been properly brought under the Part 62 of the Civil Proceedings Rules [CPR]. The court at first instance found against the applicant on this point, holding that any interpretation of the Constitution by the Courts had to be in a circumstance where the claimant had alleged a breach of his or her fundamental rights and Part 62 had expressly excluded such proceedings. According to Part 62:
“This Part deals with the procedure to be followed-
(a) when any enactment (other than the Constitution) gives a right to apply to the court… [Emphasis added]
On appeal, the Court of Appeal overturned this ruling, holding that the court had jurisdiction to hear the claim, not as a constitutional action, but as an administrative action under Part 56 of the CPR which dealt with applications for judicial review and for a declaration in which a party is the State, a court, a tribunal or any other public body. The Court of Appeal also held that if Mr Dumas had wrongly commenced the action under Part 62, the Court could remedy that error by using its power to put matters right under Part 26.8(3) of the CPR.
In the written reasons that it issued subsequently, the Court of Appeal emphasized that the central issue was one of standing to sue. It made reference to a provision in section 5 (2)(b)of the Judicial Review Act 2000 of Trinidad & Tobago that is in pari materia [identical to] with section 6 (b) of the Barbados Administrative Justice Act (referred to in this space some two weeks ago) that the court may grant administrative relief not only to an individual whose interests are adversely affected but also to “any other person if the Court is satisfied that that person’s application is justifiable in the public interest in the circumstances of the case”.
The judgment sets out the court’s policy to public interest litigation in a statement that emphasizes the primacy of the rule of law and the Constitution-“In our opinion, barring any specific legislative prohibition, the court, in the exercise of its supervisory jurisdiction and as guardian of the Constitution, is entitled to entertain public interest litigation for constitutional review of alleged non-Bill of Rights unlawful constitutional action; provided the litigation is bona fide, arguable with sufficient merit to have a real and not fanciful prospect of success, grounded in a legitimate and concrete public interest, capable of being reasonably and effectively disposed of, and provided further that such actions are not frivolous, vexatious or otherwise an abuse of the court’s process.”
Their Lordships on the Board unanimously found this to be the correct approach. In their opinion –“This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and, if so, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law…[T]he rule of law requires that those exercising public power should do so lawfully. They must act in accordance with the Constitution and any other relevant law.” [Emphasis added]
Of course, a judgment of the JCPC on appeal from Trinidad & Tobago is not binding on the local courts. However, given the persuasive authority expressly attributed to its decisions by the CCJ, our apical court, the present decision should prove highly persuasive.
The modern emphasis for permitting the pursuance of litigation against the state and the grant of relief to an individual appears no longer to lie solely in that person’s interests being adversely affected by the state action but, rather, once such application is in the public interest. The JCPC was careful to itemize some of the relevant factors in this determination as found in the relevant Trinidad& Tobago legislation, although it should be noted that the local legislation is silent on these matters and leaves the issue to the satisfaction of the court solely. These were –
“(a) the need to exclude the mere busybody
(b) the importance of vindicating the rule of law;
(c) the importance of the issue raised;
(d) the genuine interest of the applicant in the matter;
(e) the expertise of the applicant and the applicant’s ability to adequately present the case; and
(f) the nature of the decision against which relief is sought.”
To be continued…