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Sunday, May 21, 2017

The recent decision by the Privy Council in the matter of the Attorney General v Dumas has opened the door to public interest litigation in a manner that now places all public authorities—from President to Prime Minister and Cabinet to commissions—in a place where they can all be challenged in court for the validity of any of their decisions.

It is a landmark judgment for which Mr Dumas must be openly congratulated for having the fortitude to pursue notwithstanding the great personal financial risk that he faced.

According to paragraph two of the judgment:

“The respondent, Mr Dumas, as an engaged citizen with an interest in the good governance of the Republic, seeks a determination of the meaning of the phrase ‘qualified and experienced in section 122(3) of the Constitution and declarations that the nomination and appointment of two persons to the Police Service Commission under that section of the Constitution were invalid because, he asserts, the nominees lacked the specified qualifications and experience. Mr Dumas claims no personal interest in the appointments. He asserts a right as a citizen to seek the assistance of the courts in the upholding of the Constitution.”

It is clear from this that Mr Dumas had no personal interest in the matter other than seeking the assistance of the courts in upholding the Constitution. The Privy Council commented on, and agreed with, the decision of the Court of Appeal of T&T (Jamadar, Bereaux and Smith JJA) to reverse the decision of Mohammed J at paragraph 12 of their judgment as follows:

“The Court held that Mr Dumas had an arguable case on a matter of public importance, that he was not a busybody or acting for a collateral purpose, and that he had demonstrated the competence to litigate the matters effectively. It stated that there was no established tradition in Trinidad and Tobago of the Attorney General raising proceedings in the public interest to make sure that the rule of law was observed. The citizen had a legitimate interest in upholding the Constitution and the rule of law.”

The decision of Mohammed J was delivered on July 22, 2014, and the Dumas appeal was determined by the Court of Appeal on October 20, 2014, with a written judgment being delivered on December 22, 2014.

On September 7, 2015, there was a change of government and a new attorney general was appointed on September 9, 2015. The Privy Council appeal was heard on January 31, 2017.

What was most interesting in this case emerged in paragraph 27 of the judgment as follows:

“The Attorney General in his written case sought to raise new arguments which had not been presented to Mohammed J or to the Court of Appeal. The Board agreed to hear the submissions de bene esse. It will rarely be appropriate for the Board to consider submissions which have not been presented to the courts in Trinidad and Tobago. But because the appeal raises constitutional issues, because the Board is satisfied that there is no substance in the new arguments and because, therefore, Mr Dumas’s counsel is not prejudiced by the late arrival of those submissions, the Board deals with them briefly.”

The original appeal that had been filed by the Attorney General under the People’s Partnership administration had been buttressed by further points of appeal from the new attorney general in the hearing before the Privy Council on January 31 instant.

The Privy Council addressed these two new points of appeal which were outlined in paragraph 28 of the judgment as follows:

“The first submission founds on the approval by the House of Representatives of the President’s notifications and the second invokes the ouster in section 38(1) of the Constitution.”

These two points were argued by counsel for the attorney general before the Board of the Privy Council and they concluded as follows in paragraph 35:

“In his oral submissions counsel for the Attorney General cleverly sought to finesse the two new arguments by asserting that Mr Dumas’s claims went far beyond a claim of error of law and amounted to a disagreement on the quality of the nominees’ qualifications. In his reply he conceded that if the nomination and appointment were ultra vires, neither the approval of the House of Representatives nor the section 38 ouster could save them. He was correct to do so. Both of the Attorney General’s new arguments therefore fail.”

In dealing with this case, the Privy Council had before it the original points that had been litigated before the High Court and the Court of Appeal locally. However, the new Attorney General who came into office on September 9, 2015, in maintaining the appeal that had been filed by an attorney general in the previous People’s Partnership administration, added two new points of appeal for the consideration of the Privy Council.

With both of those points being dismissed together with the other aspects of the appeal, the local courts are now required to hear such challenges to appointments involving express qualifications for appointees to high office.


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