Dilemma of judicial review

WHAT’S to be done about the piling up of judicial review cases before our already overburdened courts? That is the headache which Chief Justice Sat Sharma will, sooner or later, have to deal with.  On the one hand, it seems unfair to be inflicting on our Courts matters that should have been properly handled by the Service Commissions while, on the other, aggrieved persons feel they have no choice but to use the judicial review process as the only way of obtaining redress for perceived injustices.

It is our understanding that there are more than 100 judicial review cases awaiting the decisions of judges in the High Court. When this backlog will be whittled down we have no idea, but it can hardly be soon in light of the mounting burden caused by the crime crisis and the increase in civil litigation. This may seem unfortunate since many of these cases, such as the matter of Hubert Alleyne and the Unit Trust Corporation and the Spancrete Caribbean Ltd and UDECOTT issue over tenders for the interchange involve serious questions of justice. But the real problem, it seems to us, comes from the multitide of cases now being filed by public sector workers against decisions of the service commissions.

When they were established to protect the various arms of the public service from political interference and abuse in the promotion, transfer and disciplining of employees, the independent commissions were insulated from this kind of litigation by an ouster clause written into the Constitution. Workers who felt aggrieved by decisions of the commissions then had recourse to the Public Service Tribunal whose basic mandate was to ensure that the commissions had acted fairly in dealing with complainants. Under the UNC government, however, the ouster clause was excised from the Constitution which rendered the commissions susceptible to judicial review motions.

The intention of this measure was to make operations of the commissions subject to the court’s scrutiny and so render them more accountable. We recall the case of teacher Lynette Maharaj who had been denied the principalship of a school but could not obtain redress because the ouster clause prevented her from taking the Teaching Service to court. However judicial sources have described removal of the ouster clause as the opening of a Pandora’s Box since it has given rise to a flood of judicial review motions from public servants. As far as the judiciary is concerned, this has imposed an unfair burden on judges who now see themselves as running the public service at a certain level by having to decide who is entitled to promotion and who is not.

In the present state of our society, it is difficult not to sympathise with the judges who believe that these are really matters for the Commissions and the Tribunal and not for them to be deciding, particularly at a time when criminal and civil cases are proliferating. On the other hand, where are persons who feel discriminated against by decisions of the Commission to go to obtain redress, if not in the courts? Indeed, recent history will show a number of cases in which the courts had to differ from or reverse the actions of the Commissions. Chief Justice Sharma has a dilemma on his hands. He may ask for more judges, take whatever measures he can to expedite these pending cases, call for a revamping of the Tribunal or more equitable dealing by the Commissions. But something has to be done.