Judicial Review in the Commonwealth Caribbean

Rajendra Ramlogan

• Publisher: Routledge-Cavendish
• Year: 2016
• ISBN:
  9781136775604
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

The establishment of the Caribbean Court of Justice sees the countries of the Commonwealth Caribbean at an important and exciting judicial crossroads. Debate, often acrimonious, continues over the abolishment of ties to the Judicial Committee of the Privy Council and, increasingly those influencing the debate are a more educated and articulate Cari

1

JUDICIAL REVIEW: AN INTRODUCTION

1.1 WHAT IS JUDICIAL REVIEW?

Commonwealth Caribbean countries are now at an exciting judicial crossroad with the establishment of the Caribbean Court of Justice and the continuing, and sometimes acrimonious, debate on the abolishment of ties to the Judicial Committee of the Privy Council. Influencing this debate is an increasingly educated and articulate Caribbean people more prepared to insist on proper governance by its public bodies. An examination of the development of judicial review, as a mechanism for achieving public justice through emerging case law, can cast light on the jurisprudential evolution of Caribbean society in the twenty-first century.

Judicial review is concerned, not with the decision, but with the decision-making process. According to Lord Brightman, unless that restriction on the power of the court is observed, ‘the Court will, in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power … Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made’.¹ The corollary of such a definition is that once a decision is made in accordance with the principles of legality, fairness and rationality, and is therefore legally sound, an application for judicial review cannot be made to the High Court to determine the issue of correctness. As Morris P affirmed ‘the function of the High Court on an application for judicial review is limited to determining whether or not the impugned decision was legal, not whether or not it was correct. The freedom to exercise a discretion necessarily entails the freedom to get it wrong; this does not make the decision unlawful’.²

In the Application of Dennis Graham – HCA No S-156 of 2005 (TT) Pemberton J

[PP3–4] The Courts in Judicial Review actions seek to pronounce not on the decision arrived at by the decision maker but the process by which that decision was arrived at. It is immaterial whether a judge may have arrived at another decision but it is material whether the means used to arrive at that decision by the decision maker are beyond question. The purpose of Judicial Review therefore is not to solve relational issues or personality issues unless those are manifested in a decision maker employing a process of decision making that can be characterized as:

• Unreasonable

• Illegal or

• Tainted by mala fides.

In the Application of Chandresh Sharma – HCA No S-109 of 2005 (TT) Pemberton J

[P2] Judicial review is not an appellate process, but a review of the manner in which a decision is made by a public officer exercising administrative or other powers conferred by statute. In other words, the Court does not and cannot pronounce on the correctness or veracity of the substance of the decision per se but rather puts the decision maker to the test as to the methodology or process that was employed to arrive at that decision. It seeks to ensure the proper use of the decision making process. The action must be predicated upon facts and circumstances existing and which the decision maker knew or ought to have known at the time that the decision to be impugned was made. Subsequent events cannot be taken into account … [PP17–18] 37…. I do think that not only is the DPP entitled to take public interest matters into account in exercising any of his functions, prosecutorial or consenting to prosecute but also he would be open to severe criticism if, as the holder of a public office designated by the Constitution, these issues formed no part of his deliberations. It is expected that holders of public office must import into their deliberations matters of public interest. It goes with the territory. 38. Thus, in the absence of any statutory provisions, the DPP is entitled to take into consideration whichever factors he deems appropriate in assisting him in arriving at his decision provided those factors are relevant and reasonable, offend no law and do not produce a result so perverse that no reasonable DPP standing in his shoes would not have so acted. For these reasons, I cannot interfere with the DPP’s decision.

In the Application of Chandresh Sharma – Civil Appeal No 115 of 2003 (TT) Nelson JA

[P10] It is trite law that judicial review is a discretionary jurisdiction. Indeed a Court may in its discretion refuse to grant a remedy, even if the Applicant can prove unlawful administration … [P11] An appeal against the exercise of a discretion will only be granted if it can be shown that the Judge exercised his discretion under a mistake of law or otherwise misapprehended the facts. An appellate Court must defer to the Judge’s exercise of his or her discretion and must not interfere with it merely upon the ground that the appellate Court would have exercised the discretion differently … It is only where the decision is plainly wrong that an appellate Court should interfere.

In the Application of Florence Bobb and Girlie Moses – Civil Appeal No 97 of 2002 (TT) Nelson JA

[P8] Counsel for the Respondent reminded the Court of the words of Lord Diplock in Hadmor Productions v Hamilton [1982] 2 WLR 322, at p 325: ‘[An appellate Court] must not interfere with it merely upon the ground that the members of the appellate Court would have exercised the discretion differently. The function of the appellate Court is initially one of review only.’ Counsel also referred to the dictum of Asquith LJ approved by Lord Fraser of Tullybelton in G v G [1985] 1 WLR 647, 651: ‘It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.’ See also Jones v Solomon (1989) 41 WIR 299, 336B–337H per Sharma JA (as he then was). I would respectfully adopt these statements of the law in deciding whether to reverse the exercise of the Judge’s discretion against granting leave.

In the Application of Felix Augustus Durity – HCA No S-283 of 1993/Civil Appeal No 49 of 1993 (TT) Sharma JA

[P9] If by construing ‘decision’ in this way it would undoubtedly confer a right of appeal whether as of right or with leave, then there is absolutely no reason to reject this generous approach, to vest that right. In my view, as I have already said that although it is not stricto sensu, a fundamental right, yet it is undisputable that a right of appeal does impact in the most crucial way, and is unarguably an important part of the ‘due process’ clause and the fundamental right to the protection of the law, which are rights guaranteed under the Constitution … [P10] Further the fact that the Court of Appeal is exercising an original jurisdiction in an area of law, which goes to the heart of any civilized system of justice is not to be ignored. Matters touching the livelihood, reputation of citizens, their rights to be heard, especially against the mighty executive, make it more compelling to conclude that a right of appeal cannot lightly be construed away … [PP10–11] In the result, therefore I am respectfully of the view that refusal of a renewed application for judicial review is a decision which is appealable to the Privy Council, provided other conditions are satisfied.

In the Application of Jules Bernard – Civil Appeal No 13 of 1993 (TT) Ibrahim JA

[P9] The remedy of judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made but the decision process itself. ‘It is important to remember that in every case that the purpose [of the remedy of judicial review] is to ensure that the individual is given fair treatment by the authority to which it has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual Judges for that of the authority constituted by law to decide the matter in question.’ (Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155 at p 1160).

In the Application of Gladstone Solomon – Civil Appeal No 85 of 1986 (TT) Sharma JA

[P25] The authorities are clear on the function of the Court of Appeal in respect of a judge exercising a discretion … [PP26–27] In Ward v James [1965] 1 All ER 563 at p 570 Lord Denning said: ‘REVIEWING DISCRETION. This brings me to the question: in what circumstances will the Court of Appeal interfere with the discretion of the Judge? At one time it was said that it would interfere only if he had gone wrong in principle; but since Evans v Bartlam, that idea has been exploded. The true proposition was stated by Lord Wright in Charles Osenton & Co. v Johnston. This Court can, and will, interfere if it is satisfied that the Judge was wrong. Thus it will interfere if it can see that the Judge has given no weight (or no sufficient weight) to those considerations which ought to have weighed with him. A good example is Charles Osenton & Co. v Johnston itself, where Tucker J., in his discretion ordered trial by an official referee, and the House of Lords reversed the order because he had not given due weight to the fact that the professional reputation of surveyors was at stake. Conversely it will interfere if it can see that he has been influenced by other considerations which ought not to have weighed with him, or not weighed so much with him, as in Hennell v Ranaboldo. It sometimes happens that the Judge has given reasons which enable this Court to know the considerations which have weighed with him; but even if he has given no reasons, the Court may infer from the way he has decided, that the Judge must have gone wrong in one respect or the other, and will thereupon reverse his decision; see Grimshaw v Dunbar’. It is now settled, that the Court of Appeal will apply the same principles in the review of all matters in which the exercise of a judge’s discretion is called into question. In other words, the principles will not vary according to the type of case nor because it belongs to a particular category.

R v Resident Magistrate for St. Andrew ex Parte Ervin Walker (1981) 18 JLR 6 (JM) Parnell J

[P8] Now, where a statute gives a person power to do something coupled with a discretion a very strong case would have to be made out to say that Mandamus should go to that person to do his duty, if that person has exercised the discretion given judiciously. In other words, where there was no application of a wrong principle; or there was no consideration of any irrelevant matter what has been done cannot be controverted. And, even if the Court were to take the view that it would not have exercised its discretion in the way it was done, if that is the only thing, then mandamus cannot go because there could be no question of compelling a person to do what he honestly thinks, by the exercise of his discretion, should not be done at all. It seems that that is what happened in this case.

In the Application of Aubrey Roberts – Civil Appeal No 53 of 1998 (GY) Chang JA

[P4] It is instructive to note that, generally, Certiorari does not lie to determine whether an inferior tribunal acted rightly or wrongly in a matter but rather whether it acted lawfully or unlawfully … [P5] Lord Brightman captured the point when he succinctly stated in Chief Constable of North Wales Police v Evans [1982] 3 All ER 141 at 154: ‘Judicial review is concerned not with the decision but with the decision making process. Unless restriction on that power of the Court is observed, the Court will, in my view, under the guise of preventing an abuse of power, be itself guilty of usurping power.’ … [P6] Every tribunal has the jurisdiction to determine the extent of its own jurisdiction. The law has not given the tribunal the right to make a wrong determination on this question of jurisdiction. Therefore, the determination of such a jurisdictional question must necessarily be reviewable by the Court as a matter of law. The determination of this jurisdictional question of law may depend on a preliminary or collateral issue of law. Both issues of law are reviewable by the Court … [P8] It should be noted, per curiam, that judicial review does lie against a wrong finding of jurisdictional fact. [PP8–9] It is essential that where the exercise of administrative power depends on the prior establishment of an objective fact, the Court will be the final arbiter as to whether that requirement has been satisfied. Otherwise, the Court will be surrendering the rule of law to the rule of administrative discretion. In my view, whether a collateral jurisdictional question of fact or law or of mixed fact and law arises and is determined by an administrative tribunal whether positively or negatively either in conferment of jurisdiction or in denial of it, the Court has the power to quash the preliminary ruling as to jurisdiction if such a question has been wrongly decided by the administrative tribunal.

Acts, decisions, determinations, orders and omissions of individuals and bodies performing public law functions can be judicially reviewed.³ Judicial review is an integral feature of public law or administrative law. ‘Judicial’ here does not mean strictly the acts of a judge or a legal tribunal sitting for the determination of matters of law, but rather a [judicial] act done by a competent authority which has been conferred the right of a lawful exercise of power.⁴ Competent authority can refer to either a person or body (such as a statutory body, tribunal or inferior court) carrying out public law functions with the ability to impose liability or affect the right of others.⁵ It was realised as early as the thirteenth century that in order to stem possible abuses, a system was required to provide checks and balances on the behaviour of public bodies. According to Fordham, the judiciary assumes the constitutional responsibility of curbing abuses of executive power which promotes the ...