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RE: CHANDRASH

Citation # TT 2003 HC 118

Country Trinidad and Tobago

Court High Court

Judge Jamadar, J.

Subject Administrative law

Date October 20, 2003

Suit No. H.C.A. No. Cv. S-1537 of 2003

Subsubject Judicial review - Appeal for leave to apply for judicial review - Applicantalleged that appointment of members to a commission created to appoint judges to

the Caribbean Court of Justice was illegal - Criteria to be fulfilled before leave can be

granted - Grounds for appeal showed no arguable case - Appeal dismissed.

Full Text Appearances:

Dr. F. Ramsahoye Q.C. & Mr. A. Ramlogan for the applicant.

Mr. A. Jacelon S.C. & Mr. K. Garcia for the respondent.

JAMADAR, J.:

INTRODUCTION

The applicant, a member of Parliament in the Republic of Trinidad and Tobago, had by

these proceedings sought to challenge the alleged:

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i. "unlawful and/or illegal appointment and/or swearing in" of the first members of the

Regional Judicial and Legal Services Commission (the Commission). This Commission

was created to appoint judges to the new Caribbean Court of Justice (the CCJ)

pursuant to an 'Agreement Establishing the Caribbean Court of Justice' (the CCJ

Agreement). (end of page 1)

ii. "illegal and/or unlawful decision to swear in and/or action of swearing in and/or

administering of oath by the Chief Justice of Trinidad and Tobago to the members of

the RJLSC on the 21st August, 2003 pursuant to and/or in furtherance of the

implementation of the CCJ Agreement."

DECISION

On the 30th September, 2003, this Court gave its decision on the applicant's

application for leave to seek judicial review to advance the stated challenges. The

applicant's application for leave to apply for judicial review for the relief stated in the

amended statement filed on the 10th September, 2003 was refused. No order for

costs was made.

This decision was accompanied by a written provisional summary of reasons and a

reservation to add to, expand and develop those reasons if called upon to do so. Theapplicant having filed an appeal against this decision, this Court will now set out in

greater detail its reasons for decision.

STRUCTURE OF JUDGMENT

This judgment is structured as follows:

i. a summary of the relevant context,

ii. the general approach of the Court to the application for leave to apply for judicial

review,

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iii. an analysis of the specific matters considered by the Court in arriving at the

conclusion that leave should be refused, dealt with under the following heads:

a. delay.

b. want of jurisdiction.

c. lack of supporting evidence.

d. separation of powers.

iv. the issue of costs.

CONTEXT

The applicant, the current Member of Parliament for Fyzabad, is a member of the

Opposition and of the United National Congress (UNC). In February 2001, the UNC was

(end of page 2) in Government when the CCJ Agreement was signed by fourteen

countries in the region, including Trinidad and Tobago.

It was the intention of the signatories to the CCJ Agreement that the CCJ would

function both as an international Court exercising exclusive original jurisdiction in

matters pertaining to the Treaty establishing the Caribbean Community signed on the

4th July, 1973, and as a final appellate Court for domestic appeals from participating

countries (see Parts II and III of the CCJ Agreement).

Subsequent to the signing of the CCJ Agreement, various other related instruments

and protocols were signed by Caribbean Community member states, including

Trinidad and Tobago. All of these instruments were signed by the Government of

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Trinidad and Tobago in the exercise of its executive treaty-making power (derived

historically from the prerogative of the Crown).

On the 21st August, 2003, the Chief Justice of Trinidad and Tobago, it is alleged,

"purported to swear in and/or appoint members of the RJLSC in accordance with

Article V of the CCJ Agreement" (Ground 12 of the applicant's amended statement). It

is this decision and/or action by the Chief Justice of Trinidad and Tobago that has

prompted this application for judicial review.

By this application the applicant seeks eleven heads of relief. These heads are set out

in an appendix to this judgment for ease of reference.

GENERAL APPROACH OF THE COURT

The relief sought and the grounds enunciated in support comprise the case for the

applicant. This 'pleaded' case must be properly supported and verified by factual

evidence given by way of affidavit (Supreme Court Practice, Vol. 1, 1997, para. 53/1-

14/32, p.867). In this case the applicant has filed two affidavits in support of this

application. (end of page 3)

In Trinidad and Tobago, judicial review is now subject to the Judicial Review Act, 2000

(JRA). As the Court of Appeal pointed out in Fishermen and Friends of the Sea v. The

Environmental Management Authority, Civ. App. No. 106 of 2002 (delivered on the

14th August, 2003): "By section 6 of the Judicial Review Act (2000) all applications for

judicial review are subject to a preliminary process of triage. The wheat is separated

from the chaff. The procedure is discretionary" (at p. 9, per Nelson, J.A.).

It is the duty of the Court on an application for leave to apply for judicial review to

function as a filtering mechanism. As such the Court has a discretion to refuse leave,usually determined after considering the following factors (see, Judicial Remedies in

Public Law, by Clive Lewis (1992), at pp. 230-232):

i. whether the applicant has demonstrated that there is an arguable case (on the

merits) that a ground for seeking judicial review exists.

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ii. whether the applicant has a sufficient interest in the matter to which the

application relates. See section 6(2) of the JRA and the exception created by section

7(1) thereof.

iii. whether there has been delay on the part of the applicant in seeking judicial

review. An applicant must apply for leave promptly, and in any event, within three (3)

months of the date when the grounds for relief first arose, unless there is good reason

for extending that time. See section 11 of the JRA and in particular the considerations

at 11(2) and (3) of same.

iv. whether there are alternative procedures and/or remedies to judicial review

available to challenge the subject decision(s). See section 9 of the JRA.

Any and/or all of the above factors may arise in an application for leave and result in

a Court concluding that there is no case fit for further consideration and so refuse

leave.

Thus, the purpose for the requirement of leave (ex parte) is to eliminate frivolous,

vexatious or hopeless applications and to ensure that only cases fit for further

investigation at a full inter partes hearing are allowed to proceed (Supreme Court

Practice, Vol. 1, 1997, para. 53/1-14/8, p. 853). (end of page 4)

Further, where a judge is initially uncertain as to whether there is or is not a case fit

for further investigation, the putative respondent(s) should be invited to attend the

hearing of the leave application and to make representations on the question whether

leave should be granted (Supreme Court Practice, Vol. 1, 1997, para. 53/1-14/30, p.

865 and para. 53/1-14/34, p. 868). At that inter partes hearing, the approach should

be to take account of brief arguments on either side and if the Court is satisfied that

there is a case fit for further consideration, then leave should be granted (SupremeCourt Practice, Vol. 1997, para. 53/1-14/34, p. 868), if it is not, leave could be refused.

THE INSTANT APPLICATION

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In this case the approach outlined above was adopted by this Court. An inter partes

hearing for leave was conducted on Thursday the 25th September, 2003, and this

Court's decision was given on Tuesday the 30th September, 2003.

In my opinion, for reasons of delay, want of jurisdiction, lack of evidence and absence

of an arguable case on the merits, leave was refused as it was considered that there

was no case fit for further investigation at a substantive hearing. The test applied to

determine whether or not there was an arguable case, was as recently restated by

the Privy Council in Emtel Ltd. v. Ministry of Telecommunication [2001] 1 L.R.C. 522

at 534 (per Lord Bingham), that is, whether or not there is a case "capable and

worthy of argument." There was no need to rule on the relief claimed at 2(a) as the

same had become otiose, the Court no longer being on vacation.

DELAY

Some of the relief claimed offend section 11 of the JRA. No good reason having been

offered for extending this statutory three (3) month limitation, this Court is obliged to

refuse leave, there having been delay with respect to these claims for relief. As Lewis

(Judicial Remedies in Public Law, supra) points out: 'Where the application is made

outside these limits, the applicant must provide adequate reasons, usually in the

notice, for the delay. Failure to do so will result in the refusal of leave' (at p. 231).

(end of page 5)

In this case the first concrete decision and/or action taken 'to create' the CCJ and/or

the Commission, was the signing of the CCJ Agreement on the 14th February, 2001.

Significantly, the applicant was at the time a member of the Government of Trinidad

and Tobago and of the ruling UNC party, when Trinidad and Tobago became a

signatory to the CO Agreement. Thus, both participated 'in the creation of the CCJ

and/or the Commission.

The choice now (some two (2) years and six (6) months after the event) by the

applicant to seek the relief claimed at 2(d), (h) and (i) exposes nakedly the issue of

delay. Section 11 of the JRA makes explicit the requirement of a 'good reason' for an

extension of time where there is delay. The onus is on the applicant to establish that

there is a good reason to extend time (see, R. v. Warwickshire County Council, Ex. p.

Collymore [1995] E.L.R. 217, at 228 F-G; and R. v. The Criminal Injuries Compensation

Board, ex. p. A. [1998] Q.B. 659, at 682 G-H and this Court's decision in H.C.A. No.

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1747 of 2002 Gillette Marina Ltd v. Port Authority of Trinidad and Tobago, unreported,

at page 53). No such explanation has been given by the applicant. Hence, in my

opinion, the applicant is not entitled to pursue these relief and they are therefore not

fit for further consideration. There was no uncertainty in the Court's mind with respect

to this aspect of the application for leave, and so no assistance was sought on it from

counsel.

WANT OF JURISDICTION

Some of the relief claimed related to matters which are in the province of

international law and which are within the legitimate ambit of the State in the

exercise of its executive treaty making power. These matters, which are matters

arising out of Trinidad and Tobago's entry into an international treaty under the CCJ

agreement and the consequential protocols thereto, are matters which are outside

the jurisdiction of this Court, they having not been incorporated by Act of Parliament

into the domestic law of Trinidad and Tobago.

The relief claimed with respect to these matters are therefore not justiciable before

this Court. See in this regard the relief claimed at 2 (b), (c), (d), (h) and (i) and the

following cases: J. H. Rayner v. Dept. of Trade [1990] A.C. 418, at 476 F to 477 A;

Blackburn v. (end of page 6) A.G. [1971] 2 All E.R. 1380, at 1382-1383 (this involved a

successful application to strike out a statement of claim on the ground that it

disclosed no reasonable cause of action); and Rustomjee v. The Queen (1876) 2Q.B.D. 69 at 74.

In the circumstances of the legal and factual context of this application, it follows that

for these relief, want of jurisdiction negates the applicant's locus standi with respect

to same. That is, the applicant has not demonstrated a sufficient interest in these

matters.

LACK OF EVIDENCE

Some of the grounds alleged are totally unsupported by any factual evidence. The

obligation and onus is on the applicant to "verify the facts relied on fully, clearly and

carefully" (Supreme Court Practice, 1997, Vol. 1; page 867, para. 53/1 - 14/32).

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For example, in relation to relief 2(e), (f) and (g):

i. Ground 12 alleges, inter alia, that the Chief Justice of Trinidad and Tobagopurported to 'appoint members of the RJLSC in accordance with Article V of the CCJ

agreement.' There is absolutely no evidence that the Chief Justice sought to appoint

any members of the RJLSC (the Commission). In fact, the evidence is that the Chief

Justice acting 'on behalf of the Conference of Heads of Judiciary of the Member States

of the Caribbean Community' issued an invitation 'to witness the installation of the

Members of the Regional Judicial and Legal Service Commission.' The press release

from the CARICOM Secretariat dated 13th August, 2003, which avers to this occasion,

corroborates that the Chief Justice did not purport to appoint any members of the

Commission (see exhibits 'CS-2' and 'CS-3' to the supplemental affidavit of the

applicant). In any event, nothing that was done on the occasion of the installation ofthe members of the Commission by the Chief Justice, could have been done pursuant

to Article V of the CCJ agreement. In fact, these members of the Commission could

only have been appointed under Article VI of the CO agreement.

ii. Ground 14 alleges that the Executive instructed the Chief Justice of Trinidad and

Tobago to perform duties pursuant to the CCJ agreement. There is absolutely no (end

of page 7) factual evidence of this. The only evidence (cited at (i) above) suggests

that the Chief Justice made a decision and acted pursuant to a request from the

Heads of Judiciary of member States of CARICOM, when he participated in the

installation and swearing in ceremony of members of the Commission. The evidence

also suggests that the administrative institution that was responsible for this occasion

was the CARICOM Secretariat. Indeed, there is no evidence to suggest that the

Executive of Trinidad and Tobago was in any way actively involved in this occasion.

iii. Ground 15 alleges that the Chief Justice of Trinidad and Tobago assumed and/or

exercised powers derived from and/or performed duties imposed by the CCJ

agreement. No doubt, this allegation is, in these proceedings, also referable to the

occasion of the installation of the members of the Commission by the Chief Justice.

There is however no conceivable argument that the Chief Justice of Trinidad and

Tobago did or could have assumed any powers or duties imposed by the CCJ

agreement, as that agreement did not create or confer any such powers in or duties

on the Chief Justice as alleged.

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Article V, clause 5, of the CCJ agreement provides that members of the Commission

shall be appointed by letter under the hand of the President of the CCJ. And, Article

XXXI provides that the Commission shall make regulations to give effect to the CCJ

agreement. Thus, the 'Regulations of the RJLSC' exhibited as 'CS-4' and dated the15th July, 1998, could not be valid as they could not have been made pursuant to

Article XXXI of the CCJ agreement. And, it is only in these 'draft' regulations that any

reference is made to 'swearing in' of Commissioners. In any event, Article VI of the

CCJ agreement is the Article which governs the first appointment of members of the

Commission. And, by clause 2(b) members of the Commission 'shall be appointed by

letter under the hand of the heads of the judiciary of the Contracting Parties.' (end of

page 8)

Thus, in my opinion, there was and is no treaty requirement or regulation subsistingin international law that required any 'swearing in' of the first members of the

Commission to make their appointment valid or effective. Further, there was and is no

power, responsibility or duty in or on the Chief Justice of Trinidad and Tobago imposed

by the CCJ agreement, to swear in these members of the Commission.

These observations at (i), (ii) and (iii) above, which are all fatal to the cited grounds,

implicate the relevant relief claimed.

This implication is true also for ground 30, which presupposes that the Executive of

Trinidad and Tobago appointed members of the Commission. Presumably, by so doing

the Executive may have in some way participated in the 'creation' of the Commission,

in so far as the appointment of its members may be considered a part of the creative

process [see relief 2(d)]. However, there is absolutely no evidence that the Executive

has acted to appoint any member of the Commission 'sworn in' on the 21st August,

2003 or could have so acted (see Article VI of the CCJ Agreement and the

observations above with respect to Ground 15).

As with the grounds, so also with relief claimed, if there is no factual evidence to

substantiate or support them, they cannot be considered fit for further consideration

or arguable.

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Thus, in relation to relief 2(e), (f) and (g) there is absolutely no factual evidence that

shows that the State incurred public expenditure on the occasion of the installation of

the members of the Commission by the Chief Justice of Trinidad and Tobago on the

21st August, 2003. In fact, the only reasonable assumption to make, if one is called

upon to do so on the evidence offered, is that, that expense was met either by the

CARICOM Secretariat or the Heads of Judiciary. This because, for example, as exhibitCS-2 indicates, the press release regarding the swearing in of members of the

Commission was issued by the CARICOM Secretariat and the Express Newspaper

report of the 15th August, refers to a CCJ 'project coordinating unit.' Also, the

invitation issued by the (end of page 9) Chief Justice of Trinidad and Tobago (exhibit

CS-3) was issued on behalf of the Heads of Judiciary.

SEPARATION OF POWERS

A major contention of the applicant in his effort to demonstrate that there was an

arguable case, rested on an alleged contravention of the doctrine of the separation of

powers.

That argument was, that "the actions of the Chief Justice of Trinidad and Tobago in

swearing in the members of the Commission ... contravened the separation of

powers," because it was a decision taken or action performed in furtherance of an

Executive function in relation to the CCJ agreement (see page 5 of the applicant's

skeleton submission). In my opinion this contention is also neither arguable nor fit forfurther consideration, for the following reasons.

First, none of the relief claimed actually address this issue. Relief 2(e) challenges the

power, responsibility or duty of the Chief Justice of Trinidad and Tobago to participate

in the occasion of the installation of the members of the Commission. But, the Chief

Justice could not have acted or purported to act pursuant to any power, responsibility

or duty where none existed - as is the case on the evidence before this Court. The

Chief Justice's decision and/or action to install and/or swear in the members of the

Commission on the 21st August, 2003, could therefore only have been purely andentirely ceremonial.

Also, the relief claimed at 2(f) does not challenge the actions of the Chief Justice, but

the vires or legality of the swearing in and/or appointment of the members of the

Commission. In my opinion, neither of the challenges at relief 2(f) is sustainable.

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There can be no illegality of a swearing in that is purely ceremonial. And, there can be

no challenge to the appointment of persons by reason of such a swearing in, where

such a swearing was not required for the validity of the appointments.

In any event, on the factual evidence, the Chief Justice of Trinidad and Tobago acted

in furtherance of a request by his fellow Heads of Judiciary and not pursuant to any

request (end of page 10) from or imperative by the Executive of Trinidad and Tobago.

Also, on the factual evidence, the occasion of the installation of the members of the

Commission was organised and managed by the CARICOM Secretariat and there is no

evidence to suggest that the Government or Executive of Trinidad and Tobago was

actively involved.

Thus, any power exercised or action undertaken by the Chief Justice of Trinidad and

Tobago could not reasonably have been considered by a fair and objective observer

to be in furtherance or supportive of Executive action. In fact, any such notion could

not have been reasonably maintained after the 24th August, 2003, when Sir David

Simmons, the Chief Justice of Barbados, speaking in his capacity as interim Chairman

of the Commission, said locally in a well publicized interview:

If the Heads of the Judiciary say we have functions to perform and we wish the Chief

Justice of Trinidad and Tobago to act on our behalf and the says yes; and we say it

would be a good thing if we could take an oath to show the solemnity of the occasion,

and we decided that, that is a matter we have to decide among ourselves.

In my opinion, there could be no arguable case that the Chief Justice of Trinidad and

Tobago acted in any manner that could have either undermined the perception of the

independence of the Judiciary, or offended the doctrine of the Separation of Powers as

it ought to exist between the Executive and Judiciary in Trinidad and Tobago. In

performing this non-judicial function, the Chief Justice did not act subject to any

executive control or direction or engage in something that was more usual or

appropriate to the executive branch of government or exercise a discretion on

grounds of policy that could implicate the citizens of Trinidad and Tobago. In fact,because none of the relevant treaty provisions have been incorporated into the

domestic law of Trinidad and Tobago, what occurred on the 21st August, 2003, has no

legal effect within the jurisdiction of Trinidad and Tobago.

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The doctrine of the Separation of Powers is one that is best articulated in terms of

separation of functions. At its heart is a proposition about the functions of

Government (end of page 11) and the desirability of a measure of separation of those

different functions in order to preserve and guarantee western models of democracy.

Thus, if one traces the origins of the doctrine, beginning with Aristotle (in 'Politics')

through to Baron Montesquieu (in 'De L'Esprit des Lois'-1748), one sees forms of

government classified in terms of function. Thus, Montesquieu describes the three

functions of government as being: "that of making laws, that of executing public

affairs, and that of adjudicating on crimes or individual cases."

It is reasonably safe to say, that, it is from these origins that the trinity of

governmental functions, described by the use of the terms 'legislative,' 'executive'

and 'judicial,' and referred to in modern times as the separation of powers, arises.

It is in this context that one must properly interpret and apply the doctrine of the

separation of powers. Indeed, Lord Scarman, in his speech in Duport Steels v. Sirs

[1980] 1 All E.R. 529 (at 551g) remarked in relation to the doctrine:

The Constitution's separation of powers, or more accurately functions, must be

observed if judicial independence is not to be put at risk.

That the doctrine of the separation of powers has been embodied in many West

Indian written constitutions, including Trinidad and Tobago's, is not in dispute. See for

example, Hinds v. R [1976] 1 All E.R. 353 at 359 f, per Lord Diplock - who also pointed

out: "It is taken for granted that the basic principle of separation of powers will apply

to the exercise of their respective functions by these three organs of government" - at

359j; and see also, Astaphan & Co (1970) Ltd. v. Comptroller of Customs and another

[1992] L.R.C. 569, Green Browne v. R (1999) 54 W.I.R. 213, DPP v. Mollinson (No.2)

P.C. Appeal No. 88 of 2001 and Roodal v. The State Cv. A. No. 64 of 1999.

Thus, the real question that this aspect of the applicant's challenge raises, may be

framed as follows: was the Chief Justice acting as a functionary of the Executive, that

is, did he either assume functions properly within the province of the Executive or

were any such functions delegated to him? Or, did the Chief Justice encroach on a

function that was (end of page 12) properly to be discharged by the Executive? Or,

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did the Chief Justice engage in action that was property to be undertaken and

executed by the Executive?

In my opinion, all of the questions posed above must be answered in the negative.

Thus, there is no arguable case that the Chief Justice made a decision or acted such

as could amount to a reviewable breach of the separation of powers as it exists and

ought to exist between the Executive and the Judiciary in Trinidad and Tobago, or

such as could he perceived reasonably as undermining the independence of the

Judiciary in Trinidad and Tobago. The unequivocal facts are, that it was the function of

the Heads of Judiciary to appoint these first members of the Commission and that the

Chief Justice in performing the challenged action, did so on the behest of the Heads of

Judiciary.

In summary, in my opinion, it is not arguable that the decision and/or action of the

Chief Justice of Trinidad and Tobago, to mark the appointment of the members of the

Commission by a purely ceremonial installation accompanied by swearing in, taken

on behalf of the Heads of Judiciary and occurring as it did on the evidence in this

case, can be reviewable as being ultra vires the powers of the Chief Justice or

unconstitutional by reason of offending the doctrine of the Separation of Powers or

capable of undermining the independence of the Judiciary.

COSTS

On the question of costs, this Court did not consider it fair to penalise the applicant

with the costs of the Attorney General, who attended on the invitation of the Court.

The Chief Justice though served played no part in these proceedings. Thus, it was

directed that there be no order as to costs.

Dated this 20th day of October, 2003.

P. Jamadar

Judge (end of page 13)

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APPENDIX

The reliefs sought are as follows:-

a. An order that this application for leave and/or this action be deemed fit for urgent

hearing during the long Court vacation;

b. A declaration that the appointment of the Regional Judicial and Legal Services

Commission referred to in the Agreement establishing the Caribbean Court of Justice

is illegal, null and void and of no legal effect;

c. A declaration that the members of the said Commission hold no public office under

the law of Trinidad and Tobago;

d. A declaration that the Executive of Trinidad and Tobago has no power or authority

to create or participate in the creation of the Commission or the Court;

e. A declaration that the Chief Justice of Trinidad and Tobago has no power

responsibility or duty in his capacity as Chief Justice to participate in the work or

functions or in any matter incidental to the establishment or function of the

Commission or the Court;

f. A declaration that the swearing in and/or appointment of members of the RJLSC by

the Chief Justice on the 21st day of August, 2003 is illegal and/or ultra vires, null and

void and of no legal effect;

g. A declaration that all public expenditure by the State of Trinidad and Tobago in

connection with the establishment of or participation in the work of the Commission

or the Court is unconstitutional and illegal;

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h. A declaration that all acts and things done by the State towards the establishment

of the Commission and the Court are subversive of Chapter VII of the Constitution of

Trinidad and Tobago and are unconstitutional and illegal;

i. A declaration that the "Agreement to establish the Caribbean Court of Justice"

signed on the 14th day of February, 2001 and/or the Protocol on the Privileges and

immunities of the Caribbean Court of Justice ("CCJ") and the RJLSC is not part of the

Laws of Trinidad and Tobago;

j. Costs;

k. Such further or other reliefs as the Court might deem just and appropriate. (end ofpage 14)

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