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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Attorney General v Dumas (Trinidad and Tobago) [2017] UKPC 12 (8 May 2017) URL: http://www.bailii.org/uk/cases/UKPC/2017/12.html Cite as: [2017] UKPC 12, [2017] WLR(D) 313, [2017] 1 WLR 1978 |
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Hilary Term
[2017] UKPC 12
Privy Council Appeal No 0069 of 2015
JUDGMENT
Attorney General (Appellant) v Dumas (Respondent) (Trinidad and Tobago)
From the Court of Appeal of the Republic of Trinidad and Tobago
before
Lord Kerr
Lord Clarke
Lord Wilson
Lord Carnwath
Lord Hodge
JUDGMENT GIVEN ON
8 May 2017
Heard on 31 January 2017
Appellant Thomas Roe QC (Instructed by Charles Russell Speechlys LLP) |
|
Respondent Peter Knox QC Robert Strang Ms Elaine Green (Instructed by Bircham Dyson Bell LLP) |
LORD HODGE:
The factual and legal background
“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.” (emphasis added)
Mr Dumas founds on this provision in his challenge. He submits that section 122(3) requires the nominees to have both formal qualifications and post-qualifying experience in one or more of the stated disciplines. Mr Dumas submits that two of the four persons whom the President nominated for appointment to the Police Service Commission in September 2013, namely Mrs Roamar Achat-Saney and Dr James Kenneth Armstrong, did not have that combination of a formal qualification and post-qualifying experience.
“My concern was not personal. I do not know Mrs Achat-Saney and am only slightly acquainted with Dr Armstrong. 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.”
“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; and
(b) where money is paid into court under an enactment,
unless any enactment or any other rule makes contrary provision.”
He submitted that no enactment gave Mr Dumas the right to apply to the court and that Part 62.1(a) excluded any claim under the Constitution.
“This Part deals with applications -
(a) for judicial review (which includes mandamus, prohibition and certiorari);
(b) by way of originating motion under section 14(1) of the Constitution;
(c) for a declaration in which a party is the State, a court, a tribunal or any other public body; …
(2) In this Part such applications are referred to generally as ‘applications for an administrative order’.”
Part 56.7 provides that an application for an administrative order must be made by a fixed date claim which identifies whether the application is (a) for judicial review, (b) under section 14 of the Constitution, (c) for a declaration, or (d) for some other administrative order. The Court of Appeal held that if Mr Dumas had 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. The Court reserved to itself the right to expand on its reasons, if necessary.
12. On 22 December 2014 the Court of Appeal set out its reasons in an impressive judgment delivered by Jamadar JA. Bereaux and Smith JJA produced a short judgment in which they concurred on all but one element of his reasoning, which element is not material to this appeal. Jamadar JA reviewed the developing jurisprudence of common law countries in the field of constitutional review and public interest litigation, including several Caribbean countries whose constitutions were similar to that of Trinidad and Tobago. He also pointed out that in the Judicial Review Act 2000 (which the Board discusses in paras 20-26 below) the legislature of Trinidad and Tobago had enacted provisions which allowed the court to grant standing to a person if the court was satisfied that the application was justifiable in the public interest. This was a codification of the common law in the field of judicial review. The Court held that Mr Dumas had an arguable case on a matter of public importance, that he was not a busybody or acting for a collateral purpose, and that he had demonstrated the competence to litigate the matters effectively. It stated that there was no established tradition in Trinidad and Tobago of the Attorney General raising proceedings in the public interest to make sure that the rule of law was observed. The citizen had a legitimate interest in upholding the Constitution and the rule of law.
13. Jamadar JA summarised the Court’s approach in para 133 of his judgment, in which he stated:
“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.”
Discussion
i) The competency of constitutional challenges: applications for an administrative order
15. Section 2 of the Constitution provides:
“This Constitution is the supreme law of Trinidad and Tobago, and any other law that is inconsistent with this Constitution is void to the extent of the inconsistency.”
It is the task of the judiciary to uphold the supremacy of the Constitution and thereby the rule of law. In Bobb v Manning [2006] UKPC 22 the Board at para 12 quoted counsel’s submission that the courts should not abdicate their important function of constitutional adjudication and also his citation of the judgment of Bhagwati J in the Supreme Court of India in State of Rajasthan v Union of India AIR [1977] SC 1361 para 143 in which he stated:
“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.”
The Board accepted “with little or no reservation” (para 13) the role of the Trinidadian courts and the Board itself as the ultimate guardians of constitutional compliance and stated (para 14):
“The 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.”
18. In the former case (Sookoo), the appellants wished to issue a writ claiming damages for negligence, which in accordance with procedural rules had to be witnessed by the Chief Justice. They raised proceedings in an originating summons to determine by declaration a question of construction of section 136(2) of the Constitution, which empowered the President to allow a judge to remain in office after reaching his compulsory retirement age to enable him to complete judicial business commenced before he attained that age. In the latter case (Bobb), the appellants, in their capacity as electors, applied for leave to apply for judicial review in an attempt to resolve the constitutional crisis of 2001-2002 by challenging the constitutional right of the then Prime Minister to retain power. While both applications failed on their merits, there was no suggestion that the court lacked jurisdiction to entertain them.
20. In the Judicial Review Act 2000 (“the 2000 Act”) Parliament placed the law of judicial review on a statutory basis. Section 5(1) of the 2000 Act provides that an application for judicial review of “a decision of an inferior court, tribunal, public body, public authority or a person acting in the exercise of a public duty or function in accordance with any law” shall be made to the High Court. The Act allows for public interest litigation. Section 5(2) provides:
“The Court may, on an application for judicial review, grant relief in accordance with this Act -
(a) to a person whose interests are adversely affected by a decision; or
(b) to a person or a group of persons if the Court is satisfied that the application is justifiable in the public interest in the circumstances of the case.”
21. Section 6 provides that leave of the Court is required and that the Court shall not grant leave “unless it considers that the applicant has a sufficient interest in the matter to which the application relates”. That notwithstanding, section 7(1) empowers the Court to grant leave to apply for judicial review of a decision if it considers that the application is justifiable in the public interest. Among the relevant factors which the Court may take into account in determining whether the application is justifiable in the public interest are (section 7(7)):
“(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.”
22. The 2000 Act has thus empowered the court to hear legal challenges in the public interest by means of applications for judicial review. It has given directions on some of the matters which are relevant to the exercise of the court’s discretion in giving leave for such public interest applications. As well as the traditional orders of mandamus, prohibition and certiorari, the court may grant a declaration or injunction or such other orders “as it considers just and as the circumstances warrant” (section 8(1)).
23. The 2000 Act also contains two important restrictions on applications for judicial review. First, section 9 provides that “save in exceptional circumstances” leave shall not be granted where any other written law provides an alternative procedure to review or appeal the decision. Secondly, section 11 imposes a time limit for the application of three months from the date when the grounds for the application first arose, “unless the Court considers that there is good reason for extending the period”.
24. During the hearing of this appeal before the Board, a question arose as to whether the 2000 Act superseded the procedure for declarations on the interpretation of the Constitution by requiring all applications for redress for the infringement of rights protected by public law to take the form of an application for judicial review. This requirement has been the general rule in English law since 1982: O’Reilly v Mackman [1983] 2 AC 237, 285D-E. This question was not debated in the courts below. But the Court of Appeal in its judgment of 22 December 2014 saw judicial review under the 2000 Act as existing alongside not only the procedure for constitutional redress provided by section 14 of the Constitution but also declarations on the interpretation of provisions of the Constitution.
25. There are several factors which would support the view that the 2000 Act has not superseded the procedure for obtaining declarations on the interpretation of the Constitution. First, an important distinction between Trinidad and Tobago on the one hand and England on the other is that Trinidad and Tobago has a written constitution which is its supreme law and which must be interpreted. Secondly, English law does not have an equivalent to section 14 of the Constitution which itself would exclude the general rule in O’Reilly v Mackman. Thirdly, there is the precedent of the Sookoo case which was heard at a time when reforms to Order 53 in Trinidad and Tobago had enabled an application for a declaration to be made by application for judicial review. Fourthly, Part 56.1 of the CPR (para 11 above) provides for declarations against public bodies as well as applications for judicial review and claims under section 14 of the Constitution. The Board has been assisted by considering the judgment of the Court of Appeal of Belize in Belize Bank Ltd v Association of Concerned Belizeans Civ App No 18 of 2007, which was concerned with a similar procedural rule in Belize. In that judgment the Court of Appeal (Sosa, Carey and Morrison JJA) upheld a ruling that it was competent to seek declaratory relief in relation to issues of public law other than by judicial review and declined to adopt the reasoning of O’Reilly v Mackman that it was an abuse of process to proceed other than by application for judicial review. In so doing, they made the first, second and fourth points above.
26. These factors, and the absence of an express statement in the 2000 Act that it provides an exclusive procedure, suggest that the right to seek a declaration on the interpretation of the Constitution exists alongside the right to apply for judicial review. But it is not appropriate that the Board should determine this issue without the benefit of the views of the courts of Trinidad and Tobago, nor is it necessary for the determination of this appeal. Having regard to the views expressed by the Court of Appeal concerning his application, Mr Dumas would have standing under sections 5(2)(b) and 7(1) of the 2000 Act if he had presented an application for judicial review. Further, section 13 of the 2000 Act provides:
“Where the Court is of the opinion that a decision of an inferior Court, tribunal, public body or public authority against which or a person against whom a writ of summons has been filed should be subject to judicial review, the Court may give such directions and make such orders as it considers just to allow the proceedings to continue as proceedings governed by this Act.”
Thus it would remain within the power of the trial judge in the exercise of case management powers to convert this application into one for judicial review.
ii) Further submissions
The approval by the House of Representatives
30. In answering the submission the Board reminds itself of the basics of the Constitution. Section 1 of the Constitution provides that the Republic of Trinidad and Tobago shall be a sovereign democratic state. As already stated, the Constitution is its supreme law and “any other law that is inconsistent with this Constitution is void to the extent of the inconsistency”: section 2. The Republic is a parliamentary democracy on the Westminster model. Chapter 1 of its Constitution sets out protections for fundamental human rights and freedoms. Chapter 3 provides for the establishment of the office of President as Head of State and Commander-in-Chief. The Constitution makes provision for Parliament, comprising the President, the House of Representatives and the Senate (Chapter 4, sections 39-73), an executive (Chapter 5, section 74-89) and the judicature (chapter 7, sections 99-111). Provision is also made in Chapter 11A for a House of Assembly and Executive Council in Tobago. Parliament may amend the Constitution only by means of the enhanced majorities in both the House and the Senate specified in section 54. Like similar Westminster-style constitutions, the Constitution takes for granted that the principle of the separation of powers will apply to the exercise by the three organs of government of their respective functions. Like such constitutions, one branch of government may not trespass upon the province of any other. These principles have long been established in the jurisprudence of the Board: Hinds v The Queen [1977] AC 195, 212B-213H; Ahnee v Director of Public Prosecutions [1999] 2 AC 294, 302-303; State of Mauritius v Khoyratty [2007] 1 AC 80, para 11; and Brantley v Constituency Boundaries Commission [2015] 1 WLR 2753, paras 27-31.
31. Thus, if the President, after consulting the Prime Minister and the Leader of the Opposition, nominates for appointment as members of the Police Service Commission people who meet the requirements of section 122(3) of the Constitution in terms of qualifications and experience, the court will have no legal basis under that sub-section to uphold a challenge to their nomination. Similarly, the court will have no legal ground under sub-section (4) to uphold a challenge if the House of Representatives duly resolves to affirm the notifications of the nomination of such persons. In those circumstances, the suitability of the candidates for nomination and appointment is a matter for the judgement first of the President and then of the House. But if the phrase “qualified and experienced” requires a nominee to have a formal qualification in one or more of the specified fields and confines the requisite experience to post-qualifying experience, it cannot lie in the hands of the President or the House of Representatives to waive those requirements. Appointment of persons without the required qualifications and experience would be unconstitutional; and the President’s nomination and appointment of such persons would be invalid. That is the separation of powers at work.
Section 38(1) of the Constitution
“Subject to section 36, the President shall not be answerable to any Court for the performance of the functions of his office or for any act done by him in the performance of those functions.”
34. Although counsel for Mr Dumas made submissions on the correct interpretation of the sub-section, the Board does not need to address them. Mr Knox’s other point provides a complete answer to supposed ouster. The protection which the sub-section gives to the President does not prevent the courts from examining the validity of his acts. It has long been recognised that a statutory ouster clause, which provides that a determination shall not be called into question in any court of law, will not protect a purported determination from a legal challenge that it is ultra vires and therefore a nullity: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. Thus in Attorney-General of Trinidad and Tobago v Phillip [1995] 1 AC 396 the Board considered the validity of a pardon which the President had purported to grant during the armed insurrection in July 1990. Lord Woolf, who delivered the Board’s judgment, stated (412E-G):
“Where the head of state has made a formal decision which in normal circumstances would constitute a pardon, it is important that the state should not be able to resile from the terms of that pardon except in the most limited of circumstances. … The Constitution of Trinidad and Tobago supports this approach by providing in section 38(1) that the President shall not be answerable to any court for the performance of the functions of his office or for any act done by him in the performance of those functions. However section 38(1) does not go so far as to prevent the courts from examining, as did the courts below, the validity of the pardon.” (emphasis added)
Conclusion