Attorney General v Dumas
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hodge |
| Judgment Date | 08 May 2017 |
| Neutral Citation | [2017] UKPC 12 |
| Court | Privy Council |
| Docket Number | Appeal No 0069 of 2015 |
| Date | 08 May 2017 |
[2017] UKPC 12
Lord Kerr
Lord Clarke
Lord Wilson
Lord Carnwath
Lord Hodge
Appeal No 0069 of 2015
Privy Council
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Thomas Roe QC
(Instructed by Charles Russell Speechlys LLP)
Respondent
Peter Knox QC
Robert Strang
Ms Elaine Green
(Instructed by Bircham Dyson Bell LLP)
Heard on 31 January 2017
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.
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.
In this appeal the Board is not concerned with the merits of Mr Dumas's 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.
Mr Dumas is not seeking redress for a contravention in relation to himself of any of the provisions of Chapter 1 of the Constitution, which protect fundamental rights and freedoms. Accordingly, he cannot invoke the procedure to enforce those protective provisions by application to the High Court by originating motion, which section 14 of the Constitution provides. He looks elsewhere in the law for the jurisdiction of the Court.
The Police Service Commission is one of the service commissions established under Part I of Chapter 9 of the Constitution. Among its important functions are the appointment of the Commissioner and the Deputy Commissioner of Police, the disciplinary control of those officers, the making of appointments on promotion, and the hearing of appeals from decisions of those officers in relation to appointments on promotion and as a result of disciplinary proceedings (section 123(1)).
Section 122 of the Constitution provides that the Police Service Commission shall consist of a chairman and four other members, each of whom is appointed by the President in accordance with the procedure which that section lays down. The procedure is in three stages. First, the President, after consulting the Prime Minister and the Leader of the Opposition, nominates the individuals (section 122(3)). Secondly, the President notifies the House of Representatives of each of his nominations and that notification is subject to affirmative resolution of the House (section 122(4)). Thirdly, after the notification has been so approved, the President makes the appointment (section 122(5)). The President does not have unlimited discretion in nomination; sub-section (3) provides:
"The President shall … nominate persons, who are qualified and experienced in the disciplines of law, finance, sociology or management, to be appointed as members of the Police Service Commission." (emphasis added)
Mr Dumas founds on this provision in his challenge. He submits that section 122(3) requires the nominees to have both formal qualifications and post-qualifying experience in one or more of the stated disciplines. Mr Dumas submits that two of the four persons whom the President nominated for appointment to the Police Service Commission in September 2013, namely Mrs Roamar Achat-Saney and Dr James Kenneth Armstrong, did not have that combination of a formal qualification and post-qualifying experience.
Mr Dumas commenced legal proceedings using a fixed date claim form on 10 April 2014. He sought a determination of several issues, including (i) the meaning of the phrase "qualified and experienced" in section 122(3) of the Constitution, (ii) whether the two nominees had the needed qualifications and experience and (iii) whether, as a result, the Police Service Commission was properly constituted according to law. He sought declarations that the nominees lacked the needed qualifications and experience and that the Police Service Commission as then constituted was contrary to section 122(3) of the Constitution by reason of those purported appointments.
In his affidavit, which accompanied his claim form, Mr Dumas explained that he was retired but had been Head of the Public Service and a former Ambassador and High Commissioner of the Republic. He explained why he was raising the legal challenge thus:
"My concern was not personal. I do not know Mrs Achat-Saney and am only slightly acquainted with Dr Armstrong. Nor did I judge that I would be directly affected in my individual capacity by any possible consequences of the Notifications, if approved by the House of Representatives. Rather I was and am concerned as a citizen who has for many years written and spoken publicly about the need for good governance in this society, particularly including respect for our institutions such as our Constitution, which is the highest law of the land. I am therefore acting in what I consider to be the public interest of Trinidad and Tobago."
Counsel for the Attorney General raised a preliminary issue as to jurisdiction which focused on the terms of the Civil Proceedings Rules 1998 ("CPR"). Mr Dumas's counsel submitted that the claim proceeded under Part 62.2(1) of the CPR which provided: "The general rule is that applications to the High Court may be made by … (b) a fixed date claim in Form 2 where — (i) an enactment requires an application to be by originating summons, originating application or originating motion; and (ii) in any other case not falling within paragraph (a)". But counsel for the Attorney General pointed out that Part 62 of the CPR did not cover the claim because the scope of that Part was set out in Part 62.1 which provides:
"This Part deals with the procedure to be followed —
(a) when any enactment (other than the Constitution) gives a right to apply to the court; and
(b) where money is paid into court under an enactment,
unless any enactment or any other rule makes contrary provision."
He submitted that no enactment gave Mr Dumas the right to apply to the court and that Part 62.1(a) excluded any claim under the Constitution.
In a judgment dated 22 July 2014 Mohammed J determined the preliminary issue by dismissing Mr Dumas's claim. He concluded that while Order 5 rule 4 of the Orders and Rules of the Supreme Court of Judicature of Trinidad and Tobago 1975 ("RSC") had allowed proceedings for the interpretation of the Constitution, the CPR, which replaced the RSC in 2005, did not. CPR Part 62.1(a) excluded such proceedings with the result that the courts could interpret the Constitution only where a claimant alleges a breach of his or her fundamental rights — ie by seeking redress under section 14 of the Constitution.
Unsurprisingly, Mr Dumas challenged this ruling which was to the effect that an alteration of the court's procedural rules in 2005 had removed the right of citizens of Trinidad and Tobago to seek rulings on the proper interpretation of their Constitution, except by proceedings for redress under section 14 of the Constitution. On 20 October 2014 the Court of Appeal (Jamadar, Bereaux and Smith JJA) heard his appeal and in an extempore summary judgment allowed the appeal, sending the matter back to proceed before the trial judge. In the summary, which Jamadar JA delivered, the Court held that there was jurisdiction to hear the claim as an administrative action under Part 56 of the CPR. Part 56.1 provides:
"This Part deals with applications —
(a) for judicial review (which includes mandamus, prohibition and certiorari);
(b) by way of originating motion under section 14(1) of the Constitution;
(c) for a declaration in which a party is the State, a court, a tribunal or any other public body; …
(2) In this Part such applications are referred to generally as 'applications for an administrative order'."
Part 56.7 provides that an application for an administrative order must be made by a fixed date claim which identifies whether the application is (a) for judicial review, (b) under section 14 of the Constitution, (c) for a declaration, or (d) for some other administrative order. The Court of Appeal held that if Mr Dumas had commenced the action under Part 62, the Court could remedy that error by using its power to put matters right under Part 26.8(3) of the CPR. The Court reserved to itself the right to expand on its reasons, if necessary.
On 22 December 2014 the Court of Appeal set out its reasons in an impressive judgment delivered by Jamadar JA. Bereaux and Smith JJA produced a short judgment in which they concurred on all but one element of his reasoning, which element is not material to this appeal. Jamadar JA reviewed the developing jurisprudence of common law countries in the field of constitutional review and public interest litigation, including several Caribbean countries whose constitutions were similar to that of Trinidad and Tobago. He also pointed out that in the Judicial Review Act 2000 (which the Board discusses in paras 20–26 below) the legislature of Trinidad and Tobago had enacted provisions which allowed the court to grant standing to a person if the court was satisfied that the application was justifiable in the public interest. This was a codification of the common law in the field of judicial review. The Court held that Mr Dumas had an arguable...
To continue reading
Request your trial
-
René Holder-Mcclean-Ramirez v The Attorney General of Barbados
...submitted, citing McEwan and others v The Attorney General of Guyana [2018] CCJ 30 (AJ), Dumas v The Attorney General TT 2014 CA 62, Attorney General v Dumas [2017] UKPC 12, and many other cases, that the broadness of Section 24 of the Constitution was such that, considering the aims and o......
-
Commissiong v Stuart and Vision Developments Inc.
...and Tobago, Civ. Ap. No.P218 of 2014, decision delivered 22 December 2014, at para.71 (Jamadar JA) affirmed by the Privy Council in Attorney General v. Dumas [2017] UKPC 12). (8) PUBLIC INQUIRY 69 A number of the issues raised in the claimant's correspondence have morphed into the claim for......
-
Deborah Patrick-Gardner v Jacqueline Mendez and Public Service Commission
...SA De Smith, H Woolf and JL Jowell in Judicial Review of Administrative Action (5th edn, 1995), (as cited by the Privy Council in Attorney General v. Dumas (2017) 90 W.I.R. 507) at paragraph 42: ‘All developed legal systems have to face the problem of resolving the conflict between two asp......
-
Glenville Isles v The Attorney General of St. Christopher and Nevis
...at paragraph 46 that: ‘[46] The trial judge's statement of the relevant legal principles was not altogether wrong, (See AG v Dumas [2017] UKPC 12, at para 15, citing with approval, Bobb v Manning [2006] UKPC 22, and State of Rajasthan v Union of India AIR [ 1977 SC 1361, per Bhagwati J) e......
-
Bibliography
...L.A. ‘A Long Look at the British Constitution.’ Parliamentary Affairs 37, issue 4 (1984): 385–402. Cases Attorney General v Dumas [2017] UKPC 12. Bribery Commissioner v Ranasinghe [1965] AC 172. Campbell v Hall (1774) 1 Cowp. 204, 98 ER 1045. Coard v Attorney General [2007] UKPC 7. Esther P......
-
Commonwealth Caribbean Presidencies
...and Tobago, Ch. 1:01 , s. 80 (2). 40. The Commonwealth of Dominica Constitution Order 1978 , s. 118(3). 41. Attorney General v Dumas [2017] UKPC 12. 42. Ibid., para. 34. 43 . In Re Application of the Attorney General for Leave to Apply for Judicial Review in re the Appointment of James Alva......