The Privy Council judgment

I APPEALED the High Court ruling to the Court of Appeal, which on October 20, 2014, unanimously came down on my side. I quote at some length from its judgment, delivered by Justice Peter Jamadar.

“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 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.

“The approach to be taken to this issue of standing is a flexible and generous approach, bearing in mind all of the circumstances of the case … The public importance of the issues raised and of vindicating the rule of law are significant considerations (emphasis added) … “Standing is a matter of discretion … Ultimately … context is the determining factor … For example, where the alleged unlawfulness affects the public generally, no particular or direct interest in the matter may be necessary … In this case, Mr Dumas contends that the nomination and appointment of two individuals to the Police Service Commission by the President were unconstitutional … In our judgment, this represents a legitimate interest in having a properly constituted Police Service Commission … This is a sufficient interest in the context of this case … to vest the applicant, prima facie, with appropriate standing to bring and continue this action (emphasis added)… “In our opinion, the trial judge erred in his analysis of the issue of standing and jurisdiction on the evidence before him at this stage of the proceedings.” The other two Justices of Appeal wrote: “The Attorney-General’s objection as to Mr Dumas’ locus standi is very much out of step with a liberal construction of the Constitution as often advocated by the Privy Council itself.

Such a restricted approach will exclude from judicial adjudication important constitutional questions upon which there may be a public need for judicial pronouncement (emphasis added).

“This is to be considered against the backdrop of a total absence of ex relatione actions by Attorneys-General in Trinidad and Tobago, when such actions would involve challenges to decisions made by the Government of the day, of which they form part.

Viewed against this backdrop, the fact that objection to Mr Dumas’ locus standi is made on behalf of the Attorney-General himself is beyond ironic.” The Attorney-General was not of the same mind. On December 1, 2014, he sought and was granted leave by the Court of Appeal (Chief Justice Ivor Archie presiding) to approach the Privy Council.

In his submission for grant of leave, he unsurprisingly raised the question of locus standi.

He also said this: “The issue in this appeal goes far beyond mere matters of procedure but is encrusted with and raises the substantive legal question of the ability of a citizen to seek an interpretation of the Constitution simpliciter when he alleges no breach of any of his constitutional right (sic). This is a fundamental question for which guidance is sought from the highest court of the land. It imports a critical and fundamental extension of the rationale for accessing the Constitution.” Then, not content with merely seeking guidance, he posited that “(t)he Court of Appeal’s ruling would amount to a significant and unwarranted extension of the law for citizens to bring and maintain and (sic) action for the interpretation of the Constitution…” R e a d t h o s e w o r d s carefully, citizens.

T h i n k hard about them