The Attorney General et Al v Joseph and Boyce

JurisdictionCaribbean States
CourtCaribbean Court of Justice
JudgeBernard, J.A.
Judgment Date08 Nov 2006
Docket NumberCCJ Appeal No CV 2 of 2005; BB Civil appeal No 29 of 2004

Caribbean Court of Justice

Saunders, P.; Nelson, J.A.; Pollard, J.A.; Bernard, J.A.; Wit, J.A.

CCJ Appeal No CV 2 of 2005; BB Civil appeal No 29 of 2004

The Attorney General et al
and
Joseph and Boyce
Appearances:

Mr. Roger Forde QC and Mr. Brian L St Clair Barrow for the appellants.

Mr. Maurice Adrian King and Ms. Wendy Maraj for the first respondent.

Mr. Alair Shepherd QC, Mr. Douglas Mendes SC, Mrs. Peta Gay Lee-Brace and Mr. Philip McWatt for the second respondent.

Judicial Review - Prerogative of mercy — Whether the exercise of prerogative of mercy was reviewable having regard to the ouster clause — contained in section 78 of the Constitution — Finding that the ouster clause is inapplicable where the entity acts without regard to the rules of natural justice.

Bernard, J.A.

I have had the benefit of reading the joint judgment of the learned President and Saunders, J., and agree with the conclusions reflected in it. My judgment relates only to the first issue concerning the justiciability of the exercise of the powers of the Governor General conferred under section 78 of the Constitution of Barbados.

1

section 76 of the Constitution provides for a Privy Council which shall consist of such persons as the Governor General may appoint after consultation with the Prime Minister, and it shall have such powers and duties as may be conferred upon it by the Constitution. The Governor General by virtue of section 77(1) presides over all meetings of the Privy Council, and the powers exercisable by him acting in accordance with the advice of the Privy Council are conferred under section 78(1).

THE OUSTER CLAUSE
2

The issue of justiciability of the exercise of the powers of the Governor General under section 78 is inextricably linked to section 77(4) which is an ouster clause to the effect that the question whether the Privy Council has validly performed any function vested in it by the Constitution shall not be inquired into in any court.

3

Ouster clauses fall within a category of protective and preclusive clauses which Governments insert in statutes and constitutions to inhibit challenges by courts to executive or administrative powers. Courts, however, over the years have not been deterred by such pre-emptive strikes against their authority, and frequently find the executive and administrative actions which the clauses seek to protect to be justiciable, for example, on the grounds of excess of jurisdiction or breach of natural justice.

4

The approach by courts to these clauses has undergone progressive change since the case of Smith v. East Elloe Rural District Council [1956] A.C. 736 where such a clause in an Act was held not to give any opportunity to a person aggrieved to question the validity of a compulsory purchase order made under the Act on the ground that it was made or confirmed in bad faith. A trend towards change was observed in the landmark decision of Anisminic Ltd. v. Foreign Compensation Commission and Another [1969] 2 A.C. 147, where the ouster clause was couched in almost similar language to the one in section 77(4) and which are referred to as “not to be questioned” clauses. In summary the House of Lords held, inter alia, that the ouster clause did not protect a determination which was outside of jurisdiction, and that accordingly the court was not precluded from inquiring whether or not an order of the Commission was a nullity. The effect of this decision is that a “not to be questioned” clause prevents judicial review only for such errors as can be said to be within jurisdiction. It is, however, recognised that a tribunal may act within jurisdiction but yet act wrongfully thereby rendering its actions a nullity. Lord Reid in his judgment in Anisminic (supra) at page 171 expressed it this way:–

“….there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice”.

5

All of the cases decided in the English courts (except those of the Judicial Committee of the Privy Council) concerned the reviewability of ouster clauses in Acts of Parliament and other legislation. Professor Albert Fiadjoe in his book “Commonwealth Caribbean Public Law”, 2nd Edn., pointed out that in the Caribbean the courts have been compelled to consider the effect of ouster clauses in constitutions which provide for unreviewability of acts of a Head of State or Service Commissions. Mention was made of the case of Kemrajh Harrikissoon v. Attorney General of Trinidad & Tobago (1979) 3 W.I.R. 348 which concerned a “not to be questioned” clause in the Constitution of Trinidad & Tobago, but which the Board of the Privy Council found per curiam to be wide enough to deprive all courts of jurisdiction to entertain a challenge to its validity. Lord Diplock expressed the view that their Lordships did not find that that case provided an appropriate occasion for considering whether the section in the Constitution, despite its unqualified language, is nevertheless subject to the same limited kind of implicit exception as was held by the House of Lords in Anisminic (supra). He thought it was best left to be decided in some future case if one should arise.

6

One did arise two years later in Endell Thomas v. Attorney General of Trinidad & Tobago (1981) 32 W.I.R. 375 concerning the same clause in the same Constitution. Lord Diplock again had the opportunity to expatiate definitively on the issue, but because the Board did not find it necessary to analyse Anisminic since there was no breach of fundamental justice, he confined his comments to stating only that “it is plainly for the court and not for the commission to determine what, on the true construction of the Constitution, are the limits to the function of the commission”. He went on to say:

“If the Police Service Commission had done something that lay outside its functions, such as making appointments to the teaching service or purporting to create a criminal offence, section 102 (4) of the Constitution would not oust the jurisdiction of the High Court to declare that what it had purported to do was null and void.”

7

What can be gleaned from the dicta in Thomas (supra) is that administrative acts of State tribunals or commissions committed clearly in excess of statutory powers or in contravention of the principles of fundamental justice are reviewable by the courts despite the constitutional and legislative protection from scrutiny which ouster clauses seek to provide. Lord Diplock in Attorney General v. Thomas d'Arcy Ryan [1980] A.C. 718, 730 expressed it this way:–

“It has long been settled law that a decision affecting legal rights of an individual which is arrived at by a procedure which offends against the principles of natural justice is outside the jurisdiction of the decision making authority.”

The whole concept of fairness was reiterated later by Lord Woolf, M.R. in Regina v. Secretary of State for the Home Department ex parte Al-Fayed [1998] 1 W.L.R. 763. I am now of the view that it matters not whether such clauses are statutory or constitutional; the same principles are applicable with perhaps varying results depending on the power which the clause seeks to protect.

8

In light of the above my conclusion is that despite the ouster clause contained in section 77(4) of the Constitution of Barbados the functions of the Barbados Privy Council exercised by the Governor General under section 78(1) are reviewable by the courts if in the exercise of these functions it acts in breach of the principles of fundamental justice thereby acting outside its jurisdiction.

THE PREROGATIVE OF MERCY
9

The powers conferred on the Governor General acting in accordance with the advice of the Privy Council involve the exercise of the prerogative of mercy as indicated by the side note to section 78(1) which reads as follows:

  • “(a) grant to any person convicted of any offence against the law of Barbados a pardon, either free or subject to lawful conditions;

  • (b) grant to any person a respite, either indefinite or for a specified period, from the execution of any punishment imposed on that person for such an offence;

  • (c) substitute a less severe form of punishment for that imposed on any person for such an offence; or

  • (d) remit the whole or part of any punishment imposed on any person for such an offence or any penalty or forfeiture otherwise due to the Crown on account of such an offence.”

10

The word “prerogative” suggests privilege exclusive to an individual, and historically prerogative powers resided solely in the Crown: See Blackstone 1825, Book 1. Dicey, however, expanded the prerogative to include much more than the powers exclusive to the monarch. He posited that the prerogative appears to be both historically and as a matter of actual fact nothing else than the residue of discretionary or arbitrary authority, which is at any given time legally left in the hands of the Crown.” (Dicey 1959, p. 424–5).

11

Whichever theory one prefers the prerogative of mercy was one which the courts have held to be unsuitable for judicial review as it confers no rights on a condemned person, mercy being according to Portia in Shakespeare's “The Merchant of Venice” “enthroned in the hearts of kings”. In the case of de Freitas v. Benny (1975) 27 W.I.R. 318; [1978] A.C. 239, Lord Diplock issued his oft-cited dicta that “mercy is not the subject of legal rights”, and “it begins where legal rights end.” He elaborated on this by stating that a convicted person has no legal right even to have his case considered in connection with the exercise of the prerogative of mercy.

12

Over the years the inviolability...

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