The Jeff Cumberbatch Column – The Citizen and Public Interest Litigation

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…

Advertisements

Tags: , ,

90 Comments on “The Jeff Cumberbatch Column – The Citizen and Public Interest Litigation”

  1. Vincent Haynes May 18, 2017 at 7:19 AM #

    It has been established that slaves were a precious commodity,especially after 1807 after the slave trade was abolished and compounded by the increasing number of slaves gaining freedom by manumission or payment.

    The interest of any businessman is served by keeping his machinery and tools at optimum level which brings in the comparison of England at that time with child labour for the industrial revolution and their abuse untill the 1833&1842 acts.

    Like

  2. John May 18, 2017 at 8:50 AM #

    The interest of any businessman is served by keeping his machinery and tools at optimum level which brings in the comparison of England at that time with child labour for the industrial revolution and their abuse untill the 1833&1842 acts.
    +++++++++++++++++++++++++++++++++++++++++

    Now, that is what people concentrate on but if you want to find out how Quaker business worked, check this success story from the 1800’s!!

    Check how the labour was treated and the principles under which it was run.

    Only a complete idiot would accept what historians and politicians with an axe to grind tell us!!

    Like

  3. Hal Austin May 18, 2017 at 10:03 AM #

    Jeff,

    It is nice to be back to a sensible articles after days out under the knife, most of it reading nonsense about finance.
    But two points to a non-lawyer: you imply in an earlier answer that the Judicial committee of the privy council is now a foreign court. Is that correct. If the JCPC is now the final appeal court of T&T, then in its official capacity it is not a ‘foreign court’, but the highest court in the land.
    In fact Privy council decisions will be very influential on CCJ judgements, not the other way round. Or have I misread you?
    Second you have given a non-legal answer about what constitutes ‘professionalism’ in regard to certain occupations.
    The sociology of professionalism tell us the reality is that to be a professional in the traditional sense there must be a code of ethics which members are obliged to obey and they must undergo specialised approved training.
    You are right that the wider society is partly to blame for the professional misbehaviour of lawyers in Barbados, but ultimately it is the legal profession itself and parliament that are responsible. I(t is the reason why journalism is not a ‘profession’ but a skill or craft.
    The family, home, school, church, football clubs, etc may have an influence, but in the final analysis the profession must police the wider parameters of members’ s behaviour.

    Like

  4. David May 18, 2017 at 10:31 AM #

    Sorry to read Hal, wishing you a good recovery.

    Like

  5. Hal Austin May 18, 2017 at 3:19 PM #

    Thanks, David.

    Like

  6. Vincent Haynes May 18, 2017 at 5:20 PM #

    Hal

    Best wishes.

    Like

  7. Vincent Haynes May 18, 2017 at 5:45 PM #

    Cadbury……an interesting tale……one the first win win entrepreneurial situations……a healthy educated workforce will redown to the greater good of the enterprise….banning alcohol and women was interesting.

    I wonder how much bigger the operation would have become without the influence of religion and would the family still have owned it today.

    Like

  8. John May 18, 2017 at 7:37 PM #

    https://en.wikipedia.org/wiki/Familialism

    Now, think of the Kendal/Hallets plantation list as a group, a family group if you like.

    In 1817, these 419 souls existed with their owners and managers as a homogenous group.

    It included Davy, born in Africa and then 100 years old right down to the infant in arms.

    All either starved if crops failed drastically or enjoyed the plenty of the harvest together.

    The State did not need to provide anything to this group because it provided for itself.

    Buildings were built on the lands of the plantations, lands farmed, equipment fixed all with the single primary goal of survival.

    In a way, the plantation was like a National Insurance Scheme!!!

    The profits were unequally shared as was the labor but nonetheless, they were shared.

    It wasn’t communist!!

    It made absolutely no sense to deprive a slave or slaves of their needs.

    I suggest the Cadbury Model may have been patterned on the Quaker experience with slaves!!

    I also suggest that rather than only looking at the misery of slavery in Barbados as our intelligentsia does, we should look at the ways in which it helped people to survive.

    The days are coming when the state will fail completely in the hands of the politicians and we need to apply some common sense!!

    Like

  9. William Skinner May 18, 2017 at 10:37 PM #

    @ Hal

    Speedy recovery. all the best.

    Like

  10. Hal Austin May 19, 2017 at 6:40 AM #

    Thanks, Wlliam.

    Like

  11. Hal Austin May 19, 2017 at 6:43 AM #

    Thanks, Vincent.

    Like

  12. Vincent Haynes May 20, 2017 at 10:10 AM #

    John May 18, 2017 at 7:37 PM #

    Interesting to note that an overlordship was required for things to function i.e. the Quaker belief system of deriving power from on high,demonstrating this power to the non homogenous workers in both cases by education and wealth and passing it on in small dosses encompassing education,morality,housing,health,pensions,etc.

    Once the overlordship with its adherence to the strictures of a belief system were removed the original operation fractured and became a different entity lacking any type of compass other than that of wealth creation for a minority at the expense of the majority.

    I have always held fast to the understanding that gods&religions were created by the leaders of the day to control the masses and once they ate of the tree of knowledge chaos would ensue for a time untill another crutch or sword of damocles could be found to start the process all over again……we are at that stage again.

    Like

  13. Caswell Franklyn May 20, 2017 at 3:33 PM #

    Rodney Grant is not even elected yet and appears not to be toeing the party line. I am putting my money on him being deselected.

    Sent from my iPad

    Like

  14. John May 22, 2017 at 7:02 AM #

    VH

    If you follow your logic and apply it to the African experience with slavery you will immediately see that when faced with adherents to the unifying beliefs of Christianity and Islam, disunited Africa and Africans were mere pawns.

    Leaders sold their followers as they would sell trinkets.

    The Trans Saharan and Trans Atlantic slave trades extracted millions in an organised business operation … until Christianity put a stop to it.

    Again, it is the organized unified approach to facing and solving an evil that worked.

    If you project your logic to the future given the experience of the past, it follows in the absence of anything to unify us we can’t accomplish much and will become pawns in the hands of any group who maintains its unity.

    I don’t feel like becoming a trinket!!

    Like

Join in the discussion, you never know how expressing your view may make a difference.

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: