Judicial Review Bill struck down

Although the Bill lapsed when Parliament was prorogued in September, Justice Carol Gobin made it quite clear that even if the bill had gone through, it would have been struck down. The ruling sends a clear message to the Government that if they want to bring the bill back in its present form, it would be struck down by the courts.

In her 25-page judgment delivered yesterday, Gobin said the action of the Cabinet to introduce the bill in the Senate was unconstitutional and it amounted to a contravention and/or a threatened contravention to the right of the Trinidad and Tobago Civil Rights Association to the protection of the law as guaranteed by Sections 4 and 5 of the Constitution.

The judge also ordered the Attorney General to pay costs fit for senior and junior counsel.

Ramesh Lawrence Maharaj SC, Rikki Harnanan and Ravi Rajcoomar appeared for the association, while Russell Martineau SC represented the Attorney General.

The bill, introduced by the Executive in Parliament, was aimed at limiting the categories of persons who may apply for judicial review by repealing section 5 (2) (b) of the Constitution. This was the section which gave the court jurisdiction to deal with public interest litigation.

The bill was read for the first time and placed on the Order Paper for sittings in the Senate. The Civil Rights Association then filed a constitutional motion challenging the bill. While the matter was pending, Parliament was prorogued.

According to Gobin, the issues raised in the litigation were of great public importance. Questions were raised as to the separation of powers, the rule of law, interference with the supervisory jurisdiction of the courts, and access to the courts by individuals.

The judge found this was an appropriate case for the court to intervene. "This was a bill, the effect of which was plainly to interfere with the power that is vested under the Constitution in the Judiciary. That in itself in my view was sufficient to make it an exceptional case."

Gobin continued, "It raised the issue of the legality of a policy of the Government which, if carried out, was capable of undermining the rule of law and the separation of powers. In these circumstances, it would seem to me the court would have been abdicating its constitutional responsibility if it did not seek to intervene even at the pre-enactment stage."

The judge said the expressed aim of the bill was to remove the jurisdiction of the court in public interest. This, she added, was part of the supervisory jurisdiction of the Supreme Court. She said it was wrong to do so.

Gobin ruled that the Executive cannot lawfully promote a policy which aims to remove even a limited part of the supervisory jurisdiction of the High Court.

She also ruled that the removal of the access to the court by a public interest litigant is a breach of the right to the protection of the law.

"I consider that the role of the bonafide public interest litigant in a relatively young democracy as ours is critical to the maintenance of the rule of law. This is more so at a time when, for the most part, the population is crippled and consumed by fear for personal safety, protection of family and property."