Locus standi in commonwealth environmental law: caribbean perspectives

• Author: Winston Anderson
• Position: LL.B. (U.W.I.). Ph.D. (Cantab); Lecturer in Law, University of the West Indies; Attorney-at-law (Barbados Bar); Barrister-at-law (English Bar)
• Pages: 379-411

LOCUS

STANDI

IN COMMONWEALTH

ENVIRONMENTAL LAW: CARIBBEAN PERSPECTIVES

WINSTON ANDERSON"

1.

Introduction

Formally, the notion of

locus standi

expresses the relationship which

must exist between the plaintiff and the cause of action in order to

enable the plaintiff to move the court. Substantively, the problem of

standing is inextricably bound up with the concept of the role of the

judicial process in government. Perception of the judicial function as

intended primarily for the protection of individual rights, what Dr.

Thio terms de

droit

subjectify,1

limits the concern with regularity of

law

and administration to the extent individual rights are infringed.

Concomitantly only those individuals with a direct right or interest to

vindicate have properly a place at the seat of judgment. Another

viewpoint suggests that the judicial process is aimed primarily at

preserving legal order by confining the legislative and executive organs

of Government within their powers in the interest of the public, what

is referred to as jurisdiction de

droit

objectif.2

This view confirms the

court as final arbiter of what is legal and illegal and argues that since

the dominant objective is to ensure observance of the law, any person

should be permitted to put the judicial machinery in motion. A third

perspective regards the judicial function as furthering democratization

of decision-making.3 In this view, requirements of standing, rather than

being prohibitive, in fact facilitate public participation in decision-

making in relation to matters having a profound effect upon everyday

life and which often endure beyond the time frame fixed for electoral

recall.

LL.B.

(U.W.I.). Ph.D. (Cantab); Lecturer in Law, University of the West

Indies; Attorney-at-law (Barbados Bar); Barrister-at-law (English Bar).

1 Thio, S.M. Locus Standi and Judicial Review (Singapore University Press,

1971) at p. 2,3.

2 Ibid.

3 See generally, Findley, R.W, & Farber, D.A., Cases and Materials on

Environmental Law (Third edn., West Publishing Co. 1991) at pp. 41-79;

Findley, R.W. Farber, D.A. Environmental Law in d Nutshell (West

Publishing Co., 1992) at pp.1-23, J.L. Sax, "The Public Trust Doctrine in

Natural Resource Law: Effective Judicial Intervention" (1970) 68 Mich.

L.R. 473 esp. at pp.491-492.

Commonwealth Caribbean judicial pronouncements upon

the

standing

requirement in public law are yet to characterize the role of the

judiciary in ideological terms but their substantive purport suggests an

affinity to limiting the role of the courts to the protection of private

rights of

individuals.

So, the constitutional provision that "any person"

may seek redress from the courts in respect of violations of

fundamental human rights and freedoms has been construed to permit

challenges to the lawfulness of government action by natural persons

as well as persons created by the law However, the additional

requirement that the violation must have been "in relation to" that

person has not always received so enlightened an interpretation. A

statute authorising public officers to enter the business premises of any

employer, trade union, or other organization, and requiring the

production of literature relevant to a trade dispute, could not be

challenged as contravening the right to privacy and respect for private

property by persons who, while being members of a trade union and

its general council, did not constitute a trade union as such, nor an

employer or other organization5. Non human-rights litigation has not

fared markedly better. Membership of Parliament has been held to be

insufficient to confer standing to challenge the constitutionality of Acts

of Parliament, whether the challenger had been nominated6 or elected.7

The one aberrant decision was the landmark case of Payne v.

Att.-Gen.8 Consequent upon the secession of Anguilla from St.

Christopher, Nevis and Anguilla, the United Kingdom Parliament

enacted the Anguilla Act, 1980,9 which provided that as from

December 19, 1980 Anguilla "shall cease to form part of the territory

of the associated state of St. Christopher, Nevis and Anguilla."

Thereafter the unicameral legislature of

the

House of Assembly in St.

Kitts passed a number of

bills

which recited that they had been enacted

by the House of Assembly of "St. Christopher and Nevis." The

4 Camacho

& Sons

Ltd.

v. Customs

Collector

(1971) 18 W.I.R. 159; A.G.

v.

Antigua Tunes Ltd. [1976] A.C. 16, affirming on this point (1973) 20

W.I.R. 573, Peterkin Ag. J.A. dissenting; L.J- Williams Ltd. v. Smith

(1980)

6 C.L.B. 810.

5

Colfymore

v. A.G. (1967) 12 W.I.R. 5, a decision of the T&T Ct of

Appeal

which was reversed by the Privy Council [1970] A.C. 538. See

also

R. v. Mbanefo, Ex. p. Pierre

(1966)

10

W.I.R. 368, affirmed on other

grounds

at (1967) 19:2 T&T L.R. 29:7.

6

Gordon v. Minister

of Finance

(1968) 12 W.I.R. 416.

7

Re Belize January 31, 1972 (Gda. H.C. No. 19 of

1972).

8

July 9, 1981 (St. Kitts H.C. No. 7); reversed on points not affecting

locus

standi in (1982) 30 W.I.R. 88.

9

C.67

[UK.].

applicant in

Payne

argued that

this

recital contravened provisions

in the

Associated State Constitution

of

"St.

Christopher, Nevis

and

Anguilla"

which, inter alia, established

a

"Legislature

in and for

Saint

Christopher, Nevis

and

Anguilla", defined "Legislature"

as

meaning

"the Legislature

of

Saint Christopher, Nevis

and

Anguilla"

and

then

conferred upon

mat

body

the power

to

make laws

for the

"peace, order and good government

of

Saint Christopher, Nevis

and

Anguilla."10 In allowing the applicant,

an

elected member

of the

House

of

Assembly,

to

challenge

the

constitutionality

of the

bills

and by

extension

the

United Kingdom

legislation acceding

to the

secession, Mitchell

J.

avoided

the

rather

excessive formalism

of

his predecessors

and

broke

new

ground.

The

judge

was of

the view that,

"as

a

member

of the

Legislature

of

Saint Christopher, Nevis

and Anguilla

... Mr.

St. John Payne has the constitutional right

and responsibility

to see and

ensure that

the

laws made

by the

said legislature

...

are in themselves lawfully made and are

not

invalid

...

an elected member of the House

of

Assembly would

be lacking

in his

duty, derogating from

his

right

and

abandoning

his

responsibilities

if he was not

interested

and

vigilant

to see

that

the

laws passed

by the

House

of

Assembly

conformed with

the law of the

land

and

were properly

passed."11

But

the

heart

of

the judgment

lay in

Mitchell

J.'s

perception

of the

nature

of the

interest required

by the

constitution

to

give standing.

In

the classical words

of

the learned judge,

the

relevant interest required

by

the

constitution

may be

"... moral, religious

or

otherwise once

it is

ascertainable

and

...

not too

remote.

The

interest

may be a

social interest

as

embracing

the

efficient working

of the

legal order

in the

society, national security,

the

economic prosperity

of

society,

the protection of religious, moral, humanitarian and intellectual

values

or it may be a

private interest which

is a

personal

interest,

or a

family interest

or an

economic interest

or a

political interest,

and

that list

is not

complete."12

10

St.

Christopher, Nevis

and

Anguilla Constitution Order

1967, S.l. 1967

No.

228,

Sched.

2

[U.K].

11

Ibid. at pp. 14, 17. Cf. pp. 15, 16, 19.

12 Ibid. at pp.

22-23.