The Privy Council judgment

ON JANUARY 31 the Privy Council heard the Attorney-General’s appeal against our Court of Appeal’s (CoA) unanimous ruling in my favour .

I watched the live proceedings on the Privy Council website. A judge asked the AG’s lawyer what his client’s position was on an issue pertaining to our 2000 Judicial Review Act — after all, the appeal to the Privy Council had been made by a previous AG. What did the current AG think? The lawyer was given 10 days to find out and report back, which he did .

On May 8, the Privy Council handed down its much publicised judgment, which above all represented a victory for the people of Trinidad and Tobago (and elsewhere) .

We spend too much time in this country looking for, and often inventing, personal motives to explain events and actions .

Trinidad and Tobago would be a far better place if only we could constantly bear in mind that the welfare of the country is far more important than our petty sentiments and prejudices .

As the Privy Council said, I had been “(asserting) a right as a citizen (to seek) the assistance of the courts in the upholding of the Constitution.” It was for me a matter of principle, not personality .

The Privy Council, commending our Appeal Court on its “impressive” 2014 judgment in the matter, supported the assertion of such a right .

This is what our Law Association said on May 9: “(T)he CoA expanded access of the citizenry to the Supreme Court to challenge what they perceive to be violations of the non-human rights provisions of the Constitution … By permitting (such) access … to persons such as Mr Dumas, whose primary concern is to act in the public interest, the CoA took a major step towards holding public officials accountable for the discharge of their public duties, no matter how high the office they may hold.” For his part, the current AG had, the Privy Council said, “sought to raise (two) new arguments which had not been presented to (the High Court) or to the CoA.” The Privy Council expressed itself “satisfied that there (was) no substance in the…arguments,” but nonetheless dealt with them briefly .

The AG first criticised the Appeal Court for overlooking the role of Parliament. He “argued that because the House had approved the nominations (made by the President), the challenge (from me) was impermissible ‘on ordinary separation of powers principles.’” The Privy Council was unimpressed: “(It) cannot lie in the hands of the House of Representatives,” it said, “to waive (constitutional) requirements … Only the courts of Trinidad and Tobago can give a binding legal judgment on the interpretation of the Constitution.” The AG’s second new argument had to do with section 38(1) of the Constitution, which says in part 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.” In response, the Privy Council said that “(t)he protection which the sub-section gives to the President does not prevent the courts from examining the validity of his acts,” and it quoted one of its 1995 decisions from Trinidad and Tobago to that effect .

On January 29, 2015, the President swore in a new chair of the Police Service Commission. He said then that he didn’t “believe in limited ‘donkey cart’ interpretation of (the) Constitution,” which had gone on for far too long. He must today be delighted with the broadened approach of our Appeal Court and the Privy Council .

And he must also know who alone has the legal power to interpret the Constitution .

I end by sincerely thanking my attorneys, at home and in London .

T h e late Karl H u d - son-Phillips set the ball rol l i ng, but it is they who won the match..