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THE PRIVY COUNCIL EFFECT

Published: 
Sunday, June 11, 2017

The effect of the recent Privy Council decision in the case of Attorney General vs Dumas has created the opportunity for any citizen to challenge any decision by any public official or organisation in respect of public affairs. This decision handed down on May 8 instant has since seen a plethora of legal activity against the State that has led the Prime Minister to conclude that the UNC is using the judicial process as their “playground”.

In the current scheme of things regarding the Judiciary and the administration of justice, that is an unfortunate comment.

One excerpt from the Dumas decision that has cleared the way for a variety of legal actions against the State reads as follows:

“1. This appeal raises an important question about the jurisdiction of the High Court to hear an application by a citizen for the court to interpret a provision of the Constitution.

2. 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.

3. In this appeal the board is not concerned with the merits of Mr Dumas’ challenge and expresses no view on the interpretation of the relevant provision of the Constitution. Its only concern is the question of the jurisdiction of the High Court.”

This particular issue of a citizen seeking to approach the High Court, not to seek redress but to seek “the assistance of the courts in upholding the Constitution”, is what was central to the Dumas case.

The fact that Dumas was successful is a reality that all governments of T&T, present and future, have to accept and there will now be no end of litigation coming their way for anything that they wish to do. Once all of their decisions are properly made and there is nothing questionable about their dealings, then all should be fine.

The Dumas case cited here was about the jurisdiction of the High Court on issues of procedure to hear such challenges against the Office of the President (in this case) and the Parliament (latterly invoked in this case) from an ordinary citizen.

With the procedural matter out of the way, his substantive case can now begin some three years later after it was filed in 2014. In the aftermath of May 8 there has been a slew of legal matters filed in the High Court by Devant Maharaj that has attracted the ire of the Prime Minister.

It is most unfortunate that Devant Maharaj’s challenges to the State in the High Court could not be seen in the same light as Reggie Dumas’ challenge to the State in the High Court. They are both challenging the State—whether it is the property tax, the appointment of judges by the President or the presidential interpretation of the qualifications of people he nominated to the Police Service Commission.

With political attacks now crossing into the judicial arena, it is becoming more and more evident that T&T should hold on to the Judicial Committee of the Privy Council for a while longer. Justice Frank Seepersad had the misfortune of social media attacks against his judicial worthiness because two interim orders that he made were overturned by the Court of Appeal.

Some of the media reporting made reference to a newspaper article in 2013 that suggested that he was under consideration for appointment to the office of President. However, in the interest of balance, it should also be pointed out that then leader of the opposition Dr Keith Rowley had announced that the PNM’s choice for the presidency in 2013 was sitting CCJ judge Rolston Nelson. In 1997 Justice Anthony Lucky was actually nominated by the PNM as its presidential candidate against ANR Robinson.

If the society is crossing judicial boundaries in this manner to suggest that certain judges may not be as politically neutral as some would like, then we might as well hold on to the Privy Council for the foreseeable future.

Writing in his Sunday Express column on February 13, 2005, my colleague Prof Selwyn Ryan said:

“It is also clear that there continues to be a great deal of cronyism and jockeying for position within the judiciary and that the brethren are as divided along ethnic and personal lines as they have been in the past.”

With social media attacking the judiciary and the Prime Minister saying that he will stay out of the confusion involving the Chief Justice, while criticizing others who seek to use the High Court to have their public interest matters resolved, the Privy Council needs to stay for now.

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