Commonwealth Caribbean Administrative Law

Eddy Ventose

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136179907
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Commonwealth Caribbean Administrative Law comprehensively explores the nature and function of administrative law in contemporary Caribbean society.

It considers the administrative machinery of Caribbean States; Parliament, the Executive and the judiciary. It then examines the basis for judicial review of executive and administrative action in the Caribbean by looking at the statutory provisions that underpin this and the plethora of case law emerging from the region. The book will also look to how the courts in the Commonwealth Caribbean have sought to define principles of administrative law.

This book will also consider the alternative methods by which the rights of citizens are protected, including the ombudsman and the use of tribunals and inquiries, as well as looking forward to the increasingly significant role of Caribbean Integration law and bodies such as CARICOM and the OESC.

CHAPTER 1

INTRODUCTORY MATTERS

INTRODUCTION

This book, Commonwealth Caribbean Administrative Law, is intended to comprehensively examine the principles and underpinnings of administrative law and judicial review in the Commonwealth Caribbean. It does so by examining, first, the various common law principles applicable to administrative law and, second, legislative provisions in the Commonwealth Caribbean relating to administrative law and judicial review. For the first time, the administrative law principles applicable to the Caribbean context are explored in detail in one work. Whilst the focus of this book is the exploration of the common law principles relating to administrative law, it could not ignore the other public law dimensions that impact on administrative law, namely, first, the constitutional context of judicial review which provide avenues by which citizens might challenge infringements of the Constitution and of their fundamental rights and freedoms; and, second, the legal aspects of the Caribbean Community, its institutions and organs which provide another layer of redress for economic and other wrongs committed by Member States in respect of persons who reside in the Caribbean Community. Importantly too, this book also considers the statutory regime applicable to judicial review under the Administrative Justice Act of Barbados and the Judicial Review Act of Trinidad and Tobago.

The intention is to provide an accessible work which provides the reader with the core principles of administrative law from a Caribbean perspective. The focus, therefore, is on delineating the common law administrative law principles derived from the decisions of Caribbean courts as much as possible. As such, this work relies heavily on reported – and unreported – decisions of Commonwealth Caribbean courts which provide a rich source of previously untapped material made accessible through CARILAW, a database managed by the Faculty of Law Library of the University of the West Indies, of over 32,000 unreported cases from the Commonwealth Caribbean.

JUDICIAL REVIEW PROCEEDINGS

Judicial review proceedings, in constitutional law, are brought in the High Court against arbitrary actions by government, or public authorities endowed by law with coercive powers, which infringe the constitution or the fundamental rights and freedoms of persons. This was admitted by Lord Diplock in the seminal decision of Thomas v Attorney General of Trinidad and Tobago.¹ In the context of administrative law, judicial review proceedings are brought against bodies which exercise public law functions; they need not form part of the government, or be a ‘public authority’, traditionally understood, for that matter. These bodies must breach one or more of the common law rights of persons to be held liable in a judicial review action. Judicial review in the Commonwealth Caribbean is unique in that in the pre-independence period the courts were preoccupied with the simple determination of whether the activities of the State or its organs have breached the common law rights of citizens, while in the post-independence period, the nature of the rights under challenge dramatically changed. This, however, necessitates an examination of the types of grounds on which claims for judicial review are made and the basis of decisions in that period. More important, too, is what the new independence constitutions bequeathed to Commonwealth Caribbean courts, namely a Bill of Rights against which actions of the State can be impugned. This heralded a new age in Commonwealth Caribbean public law and led to the explosion of such cases in the 1970s and early 1980s. The common law, however, had its limitations and statutory incursions were intended to remedy this, but this has not yet been accepted by many countries. So far, only three Commonwealth Caribbean counties have legislation relating specifically to judicial review: the Administrative Justice Act (AJA) in Barbados (1982); the Administrative Justice Improvement Act (AJIA) in Saint Lucia (1998); and the Judicial Review Act (JRA) in Trinidad and Tobago (2000).

The benefits of having a statutory basis for judicial review was explored in ex p Belize Alliance of Conservation of Non Governmental Organisations² where the court stated that, in the interests of the integrity of the system of the administration of justice, clarity and ease of access, it would strongly urge that there be enacted in Belize, and for Belize, an autochthonous Administrative Justice Act, which, in its opinion, would bring home in all its plenitude and vigour the practice and procedure of the salutary and increasingly popular remedy of judicial review. It continued that, in this way, practitioners and judges would not need to have recourse to English provisions; a situation compounded by the rapid pace of change in both the landscape and rhythm and, indeed, the very machinery of litigation in that country.³ The court has noted that the High Court has historically exercised a supervisory jurisdiction over the proceedings and decisions of interior courts, tribunals, public authorities and bodies that perform public duties and functions.⁴ The following, in the court's opinion, are the features of this supervisory jurisdiction that is now exercisable under the public law remedy of judicial review. First, the remedy is one of the principal methods by which the courts now control the sometimes unfettered actions of decision-makers. Second, the source of the decision-making power may be either statutory or common law. Third, the remedy of judicial review is not directed at reviewing the merits of a decision but the decision-making process itself. Fourth, it is not within the competence of a court to substitute its own opinion for that of the decision-maker. Fifth, a court of law is not entrusted with the power to make the decision that is being reviewed and must guard against substituting its own concept of merit for that of the decision-maker. Sixth, the court must confine its review to the decision-making process that is being reviewed.⁵

JUDICIAL REVIEW: PROCESS OR MERITS?

It has often been said that judicial review is concerned only with the question of whether the public authority has exercised its power according to law, and that this excludes any consideration by the courts of the merits of the decision. But this alone does not tell us what types of cases the courts will review or the grounds on which it will ensure that the exercise of power by a public authority is in accordance with principles of good administration, fairness etc. Why is this distinction important? Its importance lies in the fact that, in judicial review cases, the courts are usually adamant that they are only exercising some form of supervisory jurisdiction over inferior courts, tribunals and public authorities; and that their focus is on whether the process by which a decision-maker has made his decision was flawless. It is not an appeal on the merits of the case. In other words, the court is not concerned with the actual decision and its consequences, but whether the public authority, in arriving at the decision, offended any of the principles upon which the court would grant a review of the decision made. This has been reiterated in many cases considered in this book. In Cable and Wireless (Barbados) Limited v Fair Trading Commission,⁶ it was stated that the court has power to review administrative decisions made by inferior courts, tribunals and other bodies in the performance of public acts and duties. In its view, the proper function of the court was limited to scrutiny of the process by which the decision had been reached and did not extend to scrutiny of the merits of the decision itself.⁷ The same was echoed in Harper v Arthur,⁸ where it was pointed out that the court ‘is not called upon to say whether his decision is right, but as this is a case of judicial review the function of the Court is to determine whether the process by which the Minister of Finance came to his decision accorded with the notion of fairness and reasonableness’⁹ Again, in Leacock v Attorney General of Barbados, the High Court of Barbados claimed that ‘judicial review is about the decision-making process. It is concerned not with the merits of a decision but with the way in which the decision was reached’¹⁰ The importance of these statements is that the courts are recognising the critical role of judicial review, and the boundaries of judicial review are to be respected by the courts since they should focus on whether the process by which a decision has been made is flawed, and not whether the actual decision is one that the decision-maker should have made. However, in later chapters it will be seen that, increasingly, Commonwealth Caribbean courts have adopted an approach where they are actually questioning the decision of public authorities, rather than the process by which the decision was made. Questions relating to the substantive merits of a decision, arguably, should be left to an appeal, and the courts have been careful to make sure that these boundaries are respected. In James v Ministry of Education,¹¹ the court pointed out that:

[t]he basis of judicial review rests on the free-standing principle that every action of a public body must be justified by law. Judicial review is concerned not with the decision, but with the decision-making process. This principle of law has been enunciated on myriad occasions. Thus the role of the Court in judicial review is merely supervisory and therefore the question is not whether the judge disagrees with what the public body has done but whether there is some recognizable public law wrong.¹²

Whether this continues to be the guiding principle on which the courts decide judicial review cases will be examined in detail in this book.

JUDICIAL REVIEW AND APPEAL

The distinction between an appeal and judicial review has been articulated in many decisions of Caribbean courts, notably in Kings Beach Hotel Management Limited v National Insurance Board,¹³ where the court pointed...

Table of contents

• Cover
• Half Title
• COMMONWEALTH CARIBBEAN LAW SERIES
• Full Title
• Copyright
• CONTENTS
• Foreword
• Preface
• Table of cases
• Table of legislation
• 1 INTRODUCTORY MATTERS
• 2 APPLYING FOR JUDICIAL REVIEW
• 3 CLAIMANTS AND STANDING
• 4 DEFENDANTS AND DECISIONS SUBJECT TO JUDICIAL REVIEW
• 5 EXCLUSION OF JUDICIAL REVIEW
• 6 JURISDICTION OVER FACT AND LAW
• 7 RETENTION OF DISCRETION
• 8 ABUSE OF DISCRETION
• 9 LEGITIMATE EXPECTATIONS
• 10 STANDARD OF REVIEW
• 11 HUMAN RIGHTS AND ADMINISTRATIVE LAW
• 12 REGIONAL ORGANISATIONS, CARIBBEAN COMMUNITY LAW AND INTERNATIONAL LAW
• 13 PROCEDURAL FAIRNESS
• 14 THE RIGHT TO REASONS
• 15 THE RULE AGAINST BIAS
• 16 TRIBUNALS AND INQUIRIES
• 17 PUBLIC LAW REMEDIES
• 18 PRIVATE LAW REMEDIES
• Bibliography
• Index