Protecting Citizens Rights in the Caribbean

Judicial review is an effective tool in the protection of citizens’ rights. Judicial review may be defined as “the jurisdiction of the superior courts to review laws, decisions, acts, and omissions of public authorities in order to ensure that they act within their given powers.” [1] Judicial review has been described as both a power and a responsibility of the courts. It is one of the most powerful means by which a citizen can seek protection from abuse of state power. The courts in the region have used judicial review even before independence and the constitutions have retained that power for Caribbean courts. This study will analyse judicial review’s efficacy in protecting citizens’ constitutional rights in the Caribbean. This will be achieved by examining the legal origins of judicial review, the grounds on which an application for judicial review can be brought, and the jurisdiction over which the court can exercise judicial review.

Methodology

This study will utilize secondary sources such as:

Case Law.

Legal articles.

Legislation.

The Grenada Constitution.

Presentation of Data

The Legal origins of Judicial Review in the Caribbean

The origin of the power of judicial review is found in both the constitution and the Common Law. Chapter one of Grenada’s Constitution provides for the protection of various fundamental rights and freedoms. Sections one to fifteen list the various rights. Section 16(1) of chapter one reads:” If any person alleges that any of the provisions of sections 2 to 15 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.” [2]

Sub-section (2) continues:” The High Court shall have original jurisdiction-a. to hear and determine any application made by any person in pursuance of subsection (1) of this section ; and b. to determine any question arising in the case of any person which is referred to it in pursuance of subsection (3) of this section and may make such declarations or orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 2 to 15 (inclusive) of this Constitution : Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.” [3]

Sub-section (5) of Section 16 reads:” Parliament may confer upon the High Court such powers in addition to those conferred by this section as may appear to be necessary or desirable for the purpose of enabling that court more effectively to exercise the jurisdiction conferred upon it by this section.” [4]

In the Trinidadian case of Roodal V The State, [5] Lord Steyn of the Privy Council said:” The Constitution itself has placed on an independent, neutral and impartial judiciary the duty to construe and apply the Constitution and statutes and to protect guaranteed fundamental rights where necessary. It is not a responsibility which the courts may shirk or attempt to shift to parliament.” [6] In the case of Jennifer Gairy V the Attorney-General of Grenada [7] the Privy Council pronounced that:” The court has, and must be ready to exercise, power to grant effective relief for a contravention of a protected constitutional right.” [8]

Who can apply for judicial review

A key question in judicial review relates to who can bring an application before the court, i.e. the question of locus standi. Locus standi is the “legal capacity to challenge an act or decision.” [9] In Grenada, the Eastern Caribbean Civil Procedure Rules 2000, 56.2 cover who may apply for judicial review. It states:”An application for judicial review may be made by any person, group or body, which has sufficient interest in the subject matter of the application.” [10] In Gordon V Minister of Finance and others [11] , it was held that:” the onus rusted on the applicant to establish to the satisfaction of the court that he was a person qualified… to bring the application.” De Smith points out that” …the courts have denied locus standi to persons claiming to be aggrieved by a decision unless they have been able to point to an encroachment on vested rights or the imposition of a new legal obligation.” [12]

The Grounds for Judicial Review

In Council of Civil Service Unions V. Minister for Civil Service, [13] Lord Diplock classified the grounds for judicial review into “illegality”, “irrationality”, and “procedural impropriety”. [14] In describing “illegality”, he says, “the decision-maker must understand correctly the law that regulates his decision making power and must give effect to it”. [15] He posits that “Irrationality”, “applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it” [16] . According to Lord Diplock, “procedural impropriety” involves a “failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision”. It also involves a “failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred…” [17]

Caribbean constitutions contain supreme law clauses. The Grenada supreme law is representative of other such clauses in Caribbean Constitutions. It provides that:” This Constitution is the supreme law of Grenada and, subject to the provisions of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.” [18]

In the case of Collymore V. Attorney-General of Trinidad and Tobago, [19] it was held that “the Supreme Court is the guardian of the Constitution, consequently it is not only within its competence but also its right and duty to make binding declarations, if and whenever warranted, that an enactment passed by parliament is ultra vires and therefore void.” Wooding CJ mentions a crucial concept in judicial review in that judgment, namely, the doctrine of ultra vires. Simply put, the doctrine of ultra vires is that “a public authority may not act outside its powers”. [20] An action or order that the court holds is ultra vires is void in law, and the court will quash it, declare it unlawful, or prohibit its enforcement. [21]

The jurisdiction of the courts in judicial review

In R V Panel on Takeovers and Mergers exparte Datafin Ltd [22] it was held that once the activities of a body were of a public law character the body was susceptible to judicial review. In Gary Nelson V The Attorney-General et al [23] Blenman J, said that:”it has always been the law that the actions of public and statutory bodies are amenable to judicial review.” [24] However, these judgments give rise to the crucial question, what is a public body? In determining whether a body is a public authority, Bernard J, in LJ Williams V Smith and AG [25] had to take into consideration his “duties, powers and functions under the law…” It must also be noted that a public authorities include “any individual officer who exercises executive functions of a public nature.” [26]

According to Lord Brightman in Chief Constable of the North Wales Police V Evans [27] :” Judicial review is concerned, not with the decision, but with the decision making process.” [28] In Hugh Wildman V. the Judicial and Legal Services Commission of the Eastern Caribbean States [29] , Gordon J.A, said:”the function of the court in judicial review is not to act as an appellate forum from the body whose decision is being challenged. If the process was fair and the decision not deviant, then the order sought under the judicial review must be refused.” [30] Rawlins, J.A, in concurring with the unanimous judgment, pointed out that:” The court is not involved in a review of the merits of the decision of the Commission… The jurisdiction of the court is to review the decision making process of the Commission in the light of the applicable legal principles…” [31] In the Nelson case, Blenman J also spoke on the role of the courts in relation to the actual decision making body. He says:”The Court…is not concerned with the merits of the decision of the body or tribunal but seeks to ensure that the body or tribunal has acted properly or within the ambit of its power in arriving at its decision.” [32] In Harrikisoon V AG, [33] the Privy Council held that one “who does not avail himself of a remedy provided by legislation when he was aggrieved…cannot obtain redress under the Constitution under the ground of entitlement to the protection of the law.”

Discussion of Findings

The power of judicial review is clearly established in the law, both common and codified. The supreme law, the Constitution, clearly gives rise to the power of judicial review by virtue of Section 16. This section allows for someone who alleges that his various fundamental rights have been, are being, or are likely to be contravened, to seek redress to the High Court. Section 16(2) goes on to provide the High Court with broad powers that it may use in the protection of the citizens fundamental rights. The Constitution also goes on, in Section 16(5), to provide that Parliament may confer additional powers on the High Court to allow it to protect fundamental rights. Thus, the Constitution not only gives the power of judicial review, especially in relation to constitutional rights, in clear terms, it also does not limit the courts powers of enforcement of these rights.

The common law has also given rise to the power of judicial review in the protection of fundamental rights, as seen in the Roodal case. This case confirms the Constitutional responsibility of the Court to protect “guaranteed fundamental rights.” In Gairy, the Privy Council was just as clear in the obligation the courts have under the Constitution to protect constitutional rights.

Although not exhaustive, the grounds for judicial review generally fall within those given by Lord Diplock in the CCSU case. It is submitted that illegality as a ground of judicial review arises where the decision maker either does not consider the relevant law, or applies it in a wrong way. Irrationality arises where the decision is unreasonable concerning “accepted moral standards.” Procedural impropriety entails failure to observe rules of natural justice and acting without fairness to the affected party in the decision. Because the powers of many public bodies are granted through statutory instruments, a failure to follow the procedure laid down in such an instrument would also amount to procedural impropriety.

The courts have been keen to ensure that those who come before the court in judicial review applications have the necessary standing to do so. However, their rigid adherence to the traditional principles of locus standi could detract from the effectiveness of judicial review as a tool in the protection of citizens’ rights. As is evident is the Gordon case, the applicant has to satisfy the court that he is qualified to bring the application. A failure to do so, even where the application is justified on merits, would result in the application being dismissed and possible contravention of rights.

The grounds for judicial review given in the CCSU case originated from the English common law. As most Commonwealth Caribbean Constitutions are based on the Westminster model, [34] and as Caribbean countries are largely common law legal systems, they are also applicable here. However, Caribbean countries have a feature that is very distinct from that of the U.K, that is, written constitutions. This is given rise to with the presence of supreme law clauses in the Constitution, as in the Grenada Constitution Section 106, which provides that any other law inconsistent with the Constitution is void. On this ground, one can apply for judicial review of legislation that is ultra vires the Constitution.

The Datafin case makes it clear as to what bodies are subject to judicial review. In that case, the court held that once a body’s functions have public law characteristics, it is subject to judicial review. This case in effect makes any body whose activities are in the realm of the public law, subject to judicial review, whether it is under executive control or not.

The law is reasonably clear on the jurisdiction that the courts have in judicial review. While it was once held that coercive remedies did not lie against the Crown [35] , this is no longer supported by case law. In particular, in the Gairy case it was held that:” Historic common law doctrines restricting the liability of the crown or its amenability to suit cannot stand in the way of effective protection of fundamental rights guaranteed by the constitution.” [36] This declaration makes the Crown, in effect the state, as subject to judicial review as public bodies.

While the law has granted the courts a wide range of powers in relation to what bodies are subject to judicial review and the power to protect citizens’ rights, it also places limitations on judicial review. The courts have held that the decisions of all public bodies are susceptible to review to ensure that they are carried out according to law, but they do not intervene where there are alternate lawful remedies available. Section 16(1) of the Grenada Constitution provides that one can apply to the high court for redress. Subsection 2 provides that:” the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.” This subsection makes it clear that the Constitution would not permit judicial review whether there is a legally available alternative.

This has also been restated in case law. The Harrikisoon case shows the Courts position that where a lawful alternative is available, judicial review is not to be used.

Closely related to the position of the courts not to be used as alternatives where there is a lawful process in place to handle a dispute, the court also will not allow itself to be used as an appeal board from the body vested with making the decision. Lord Brightman in the Evans case had showed the courts are not involved in a consideration of the actual decision, rather, how it was made. The court’s duty is to ensure that every decision is made according to law, and not to replace decision maker. This point was echoed in the Wildman case, where Gordon J.A noted that once the decision was fair, the order sought under judicial review must be refused. Rawlins J.A, along the same lines, posited that the court was not involved in a review of the decision on its merits.

Conclusions and Recommendations

It can be concluded that judicial review is a relatively effective mechanism for the protection of citizens’ constitutional rights, however there are elements that limit its effectiveness. Judicial review is firmly rooted in the law and the law does not constrict the court in the protection of citizens’ constitutional rights. Under law, the courts not only have the power, but the responsibly to protect citizen’s rights.

The cases also make it clear that bodies who exercise public law functions are amenable to judicial review, regardless of whether they are under the control of the executive. In ensuring that all those with bodies with public law characteristics are subject to judicial review, the courts have been careful not to trespass on the powers of the bodies to make the decision. The law on this is clear: courts cannot make the decision themselves, they are to ensure that the decision is made according to law. Related to this point, as long as there is another legal remedy, the courts will not intervene.

The courts have also been generally restrictive in the granting of standing to applicants for judicial review. They have placed a high burden on applicants to prove that they have the necessary locus standi to bring an application. This burden detracts from the effectiveness of judicial review in the protection of constitutional rights.

Despite the relative clarity of the law with regard to judicial review, it is submitted that, in Grenada, the law is not concisely organised on this issue. While the Eastern Caribbean Civil Procedure Rules 2000 do contain provisions relating to judicial review, these are provisions of procedure, and do not cover substantive law. In Grenada, the substantive body of law concerning judicial review is located in partly in the Constitution, and dispersed in local, regional, and English cases. Other jurisdictions, most notably Barbados, [37] but also Trinidad [38] and to lesser extents St Lucia [39] and Jamaica, [40] have adopted legislation codifying in varying extents, provisions relating to judicial review. In order to streamline and clarify the law in relation to judicial review in Grenada it is recommended that Grenada follow suit and adopts similar legislation.