Tag Archives: Judicial Review

Why are they so Concerned about a Judge Reviewing the Hyatt Matter?

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Submitted by DAVID  COMISSIONG, CITIZEN  OF  BARBADOS

Prime Minister Freundel Stuart

In August 2016 I– David Comissiong — wrote to Prime Minister Freundel Stuart in his capacity as Minister responsible for Town and Country Planning and informed him that the Law of Barbados stipulated that the application made by Mr Mark Maloney’s company for permission to construct a 15 storey hotel on the beach at Carlisle Bay had to be subjected to an Environmental Impact Assessment (EIA), inclusive of at least one public Town Hall meeting BEFORE any decision could be made on the Application.

In my said letter to Mr Stuart I stressed that the proposed project could possibly be very detrimental to the physical, social, and cultural environment of Barbados and needed to be carefully and thoroughly scrutinized through the staging of an EIA. I also stressed that the people of Barbados needed to be given an opportunity to have a say on the proposed project through at least one public Town Hall meeting.

Needless-to-say, Mr Stuart never even acknowledged my letter, much less did he deign to respond to it! Rather, in February 2017, Mr Stuart proceeded to grant Maloney’s company the permission to build their 15 storey hotel without having had the findings of an EIA or the Report of a Public Town Hall meeting to guide him in the making of his decision.

It is against this background that I decided that it was necessary to ask a Judge of the Supreme Court of Barbados to review the manner in which Mr Stuart had processed the Application in question, and determine whether or not the Application had been properly and lawfully processed by Mr Stuart. This legal procedure is known as Judicial Review.

I therefore filed an Application for Judicial Review in March 2017, and attached to that Application a request that the Court should grant an “interim order” suspending the permission granted to Maloney’s company until the Court has the opportunity to “hear” the entire matter and make a decision. To date,there has not yet been any substantive hearing of the Judicial Review application nor the attached request for an “interim order”.

Since then, however, a number of persons have jumped out of the proverbial wood-work to attack me for daring to request that the manner in which Mr. Stuart processed the said Application be reviewed and scrutinized by a Supreme Court Judge.

The obvious question that comes to mind is this: “If these persons are so sure that the Application of Maloney’s company was properly processed, and that all the applicable rules and regulations were followed, then why are they so apprehensive about a Judge of the Supreme Court reviewing the matter”?

Why are these people attacking me for exercising my Constitutional right to ask our Supreme Court to review the actions of a Minister of Government?

Why– some four months AFTER the Minister made his decision to grant permission — is Maloney feverishly staging public relations exercises in the form of a so-called “public interactive discussion’?

If they are all so certain that everything is legal and above board, why are they all so agitated?

I for my part am content to let a Judge of our Supreme Court examine all of the available evidence  and make an objective decision on the matter. Furthermore, if it is found that the relevant rules and regulations demand that an EIA be staged, it would be folly of the highest order to permit this project to go ahead in the absence of such an EIA.

 

The Jeff Cumberbatch Column – The Citizen and Public Interest Litigation

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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…

EXPLAINING THE CONCEPT OF "JUDICIAL REVIEW" : THE HYATT CASE

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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.