The Privy Council judgment

In September 2013, I was told that two of the President’s nominees for membership of the Police Service Commission did not satisfy the constitutional criteria for such nomination. Section 122(3) of the Constitution states that the President, after consultation with the Prime Minister and the Opposition Leader, is to nominate people “who are qualified and experienced in the disciplines of law, finance, sociology or management…” Section 122(4) says that notifications in respect of the nominees “shall be subject to affirmative resolution of the House of Representatives.” After such resolution, the President makes the appointments under section 122(5).

I was persuaded, after examination, that one of the two nominees did not fit the criteria at all, the other only partially so. On my behalf, the late Karl Hudson-Phillips wrote the Attorney-General on the matter, copying his letter of September 26, 2013, to the President, among others. Inter alia, he said that, should the nominations be approved by the House, I would “take such steps as (I might) be advised to ensure compliance with section 122(3)…” On November 13, the House, with the Opposition abstaining, approved the nominations; appointments followed.

A few days later, I requested Hudson-Phillips to commence action against the Attorney- General (the relevant officeholder in such circumstances), seeking an interpretation from the court of section 122(3) in relation to the two appointments.

In my statement to the High Court I said that my concern was not personal. “Nor,” I continued, “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…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…It is in the public interest that the Police Service Commission be properly constituted under the Constitution.” On July 22, 2014, the High Court dismissed my application on procedural grounds, saying that “any interpretation of the Constitution can only be carried out by the court where the claimant alleges a fundamental breach of his or her fundamental rights and freedoms. This has not been alleged by the claimant.” In addition to his interpretation of the Civil Proceedings Rules, the judge was referring to section 14(1) of the Constitution, which allows a person to apply to the High Court for redress if he “alleges that any of the provisions (of Chapter 1 of the Constitution) has been, is being, or is likely to be contravened in relation to him…” And I, of course, had acted as a citizen, not in my personal interest.

I was therefore deemed to have no standing before the court.

To me, the distinction was a serious challenge to the rights of the citizenry as a whole in a society said to be democratic.

Were we to keep silent even when we had good reason to believe that a President or a Parliament or a Cabinet had acted unlawfully, simply because we might not be directly affected as individuals? I knew I had to take up the gauntlet. I appealed.