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:
1.
This appeal raises an important question about the jurisdiction of the
High Court to hear an application by a citizen for the Court to interpret a
provision of the Constitution.
2.
The respondent, Mr Dumas, as an engaged citizen with an interest in the
good governance of the Republic, seeks a determination of the meaning of the
phrase “qualified and experienced” in section 122(3) of the Constitution and
declarations that the nomination and appointment of two persons to the Police
Service Commission under that section of the Constitution were invalid because,
he asserts, the nominees lacked the specified qualifications and experience. Mr
Dumas claims no personal interest in the appointments. He asserts a right as a
citizen to seek the assistance of the courts in the upholding of the
Constitution.
3.
In this appeal the Board is not concerned with the merits of Mr Dumas’s
challenge and expresses no view on the interpretation of the relevant provision
of the Constitution. Its only concern is the question of the jurisdiction of
the High Court.
4.
Mr Dumas is not seeking redress for a contravention in relation to
himself of any of the provisions of Chapter 1 of the Constitution, which
protect fundamental rights and freedoms. Accordingly, he cannot invoke the
procedure to enforce those protective provisions by application to the High
Court by originating motion, which section 14 of the Constitution provides. He
looks elsewhere in the law for the jurisdiction of the Court.
The factual and legal background
5.
The Police Service Commission is one of the service commissions
established under Part I of Chapter 9 of the Constitution. Among its important
functions are the appointment of the Commissioner and the Deputy Commissioner
of Police, the disciplinary control of those officers, the making of
appointments on promotion, and the hearing of appeals from decisions of those
officers in relation to appointments on promotion and as a result of disciplinary
proceedings (section 123(1)).
6.
Section 122 of the Constitution provides that the Police Service
Commission shall consist of a chairman and four other members, each of whom is
appointed by the President in accordance with the procedure which that section
lays down. The procedure is in three stages. First, the President, after
consulting the Prime Minister and the Leader of the Opposition, nominates the
individuals (section 122(3)). Secondly, the President notifies the House of
Representatives of each of his nominations and that notification is subject to
affirmative resolution of the House (section 122(4)). Thirdly, after the
notification has been so approved, the President makes the appointment (section
122(5)). The President does not have unlimited discretion in nomination;
sub-section (3) provides:
“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.
7.
Mr Dumas commenced legal proceedings using a fixed date claim form on 10
April 2014. He sought a determination of several issues, including (i) the
meaning of the phrase “qualified and experienced” in section 122(3) of the
Constitution, (ii) whether the two nominees had the needed qualifications and
experience and (iii) whether, as a result, the Police Service Commission was
properly constituted according to law. He sought declarations that the nominees
lacked the needed qualifications and experience and that the Police Service
Commission as then constituted was contrary to section 122(3) of the
Constitution by reason of those purported appointments.
8.
In his affidavit, which accompanied his claim form, Mr Dumas explained
that he was retired but had been Head of the Public Service and a former
Ambassador and High Commissioner of the Republic. He explained why he was
raising the legal challenge thus:
“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.”
9.
Counsel for the Attorney General raised a preliminary issue as to
jurisdiction which focused on the terms of the Civil Proceedings Rules 1998
(“CPR”). Mr Dumas’s counsel submitted that the claim proceeded under Part
62.2(1) of the CPR which provided: “The general rule is that applications to
the High Court may be made by … (b) a fixed date claim in Form 2 where - (i) an
enactment requires an application to be by originating summons, originating
application or originating motion; and (ii) in any other case not falling
within paragraph (a)”. But counsel for the Attorney General pointed out that
Part 62 of the CPR did not cover the claim because the scope of that Part was
set out in Part 62.1 which provides:
“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.
10.
In a judgment dated 22 July 2014 Mohammed J determined the preliminary
issue by dismissing Mr Dumas’s claim. He concluded that while Order 5 rule 4 of
the Orders and Rules of the Supreme Court of Judicature of Trinidad and Tobago
1975 (“RSC”) had allowed proceedings for the interpretation of the
Constitution, the CPR, which replaced the RSC in 2005, did not. CPR Part
62.1(a) excluded such proceedings with the result that the courts could
interpret the Constitution only where a claimant alleges a breach of his or her
fundamental rights - ie by seeking redress under section 14 of the
Constitution.
11.
Unsurprisingly, Mr Dumas challenged this ruling which was to the effect
that an alteration of the court’s procedural rules in 2005 had removed the
right of citizens of Trinidad and Tobago to seek rulings on the proper
interpretation of their Constitution, except by proceedings for redress under
section 14 of the Constitution. On 20 October 2014 the Court of Appeal
(Jamadar, Bereaux and Smith JJA) heard his appeal and in an extempore summary
judgment allowed the appeal, sending the matter back to proceed before the
trial judge. In the summary, which Jamadar JA delivered, the Court held that
there was jurisdiction to hear the claim as an administrative action under Part
56 of the CPR. Part 56.1 provides:
“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.”
14.
The Board is satisfied that the Court of Appeal was correct so to hold.
The Board sets out its reasons for that view in the rest of this judgment.
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.”
16.
Support for the existence of this jurisdiction, which extends beyond the
proceedings for redress in section 14 of the Constitution, can be found in the
Constitution itself, which in section 100(2) provides that the High Court is “a
superior Court of record” with all the powers of such a court, including all
powers that were vested in the Supreme Court of Trinidad and Tobago immediately
before the commencement of the Constitution. In section 108 the Constitution
includes among the constitutional questions which can be appealed as of right
to the Court of Appeal “any order or decision in any civil or criminal
proceedings on questions as to the interpretation of this Constitution”.
17.
How does the court come to exercise this jurisdiction? Parties, and not
judges, initiate the litigation by which the courts uphold the Constitution. As
the Court of Appeal has explained, in Trinidad and Tobago there is no
established practice of the Attorney General raising proceedings against public
authorities in the public interest (Jamadar JA para 119, Bereaux and Smith JJA
para 149). Nonetheless, there are precedents of citizens approaching the court
to seek rulings on the proper construction of provisions of the Constitution or
for orders to enforce those provisions: Sookoo v Attorney General of
Trinidad and Tobago [1986] AC 63 and Bobb v Manning (above).
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.
19.
Procedural rules have provided for such challenges formerly in Order 5
rule 4 of the RSC and since 16 September 2005, when the CPR 1998 came into
effect, in Part 56 of the CPR: para 11 above.
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
27.
The Attorney General in his written case sought to raise new arguments
which had not been presented to Mohammed J or to the Court of Appeal. The Board
agreed to hear the submissions de bene esse. It will rarely be appropriate for
the Board to consider submissions which have not been presented to the courts
in Trinidad and Tobago. But because the appeal raises constitutional issues,
because the Board is satisfied that there is no substance in the new arguments
and because, therefore, Mr Dumas’s counsel is not prejudiced by the late
arrival of those submissions, the Board deals with them briefly.
28.
The first submission founds on the approval by the House of
Representatives of the President’s notifications and the second invokes the
ouster in section 38(1) of the Constitution.
The approval by the House of Representatives
29.
The Attorney General criticises the Court of Appeal for overlooking the
role of Parliament. The House of Representatives had debated and approved the
President’s notification of his nomination of Mrs Achat-Saney and Dr Armstrong
in the knowledge that Mr Dumas had challenged their qualifications and
experience. In his written case the Attorney General argued that because the
House had approved the nominations, the challenge was impermissible “on
ordinary separation of powers principles”. In his oral submissions, counsel for
the Attorney General wisely did not press this argument as a bar to
jurisdiction.
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.
32.
Mr Dumas seeks a legal determination of the meaning of the phrase
“qualified and experienced” in section 122(3) of the Constitution. The House of
Representatives cannot determine that matter. Only the courts of Trinidad and
Tobago can give a binding legal judgment on the interpretation of the
Constitution.
Section 38(1) of the Constitution
33.
The Attorney General’s second new argument is concerned with the actions
of the President in nominating and appointing Mrs Achat-Saney and Dr Armstrong.
He founds on the ouster of the court’s jurisdiction in section 38(1) of the
Constitution which provides:
“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)
35.
In his oral submissions counsel for the Attorney General cleverly sought
to finesse the two new arguments by asserting that Mr Dumas’s claims went far
beyond a claim of error of law and amounted to a disagreement on the quality of
the nominees’ qualifications. In his reply he conceded that if the nomination
and appointment were ultra vires, neither the approval of the House of
Representatives nor the section 38 ouster could save them. He was correct to do
so. Both of the Attorney General’s new arguments therefore fail.
Conclusion
36.
The Board therefore dismisses the appeal. It is the Board’s provisional
view that Mr Dumas should be entitled to his costs, but parties are invited to
make written submissions on costs within 21 days of the delivery of this
judgment.
