On May 8, the Privy Council delivered its judgment in the case of Attorney General v Dumas, in which it affirmed a citizen’s right to approach the court for an interpretation of the Constitution.
In 2014 Reginald Dumas, a former head of the Public Service, brought constitutional proceedings challenging the President’s nomination and appointment of two people—James Armstrong and Roamar Achat-Saney—to the Police Service Commission on the basis that they lacked the qualifications and experience specified in section 122 (3) of the Constitution.
Dumas sought the court’s determination of the meaning of the phrase “qualified and experienced” in that section. He claimed no personal interest in the matter but asserted his right as a citizen to seek the assistance of the courts in upholding the Constitution.
The High Court first dismissed Dumas’ claim on a preliminary point that the court had no jurisdiction to hear the claim. It held that under the rules of court (Civil Proceeding Rules) the court could interpret the Constitution only where a claimant alleges a breach of his or her fundamental rights—that is by seeking redress under section 14 of the Constitution.
The Court of Appeal overruled this and held that, in the exercise of its supervisory jurisdiction and as guardian of the Constitution, the court could entertain public interest litigation for review of alleged unlawful constitutional action outside of section 14; provided that the citizen has an arguable case with sufficient merit, grounded in a legitimate public interest. It was held that Dumas had shown this and could competently litigate the matters effectively.
In agreeing with the Court of Appeal, the Privy Council noted that the Court is the ultimate interpreter of the Constitution. Support for the court’s jurisdiction to entertain such challenges outside of section 14 was found in the Constitution itself.
Section 108, for instance, includes among the constitutional questions that can be appealed as of right to the Court of Appeal “any order or decision in any civil or criminal proceedings on questions as to the interpretation of this Constitution.”
It was noted that both the old procedural rules of court as well as Part 56 of the CPR have provided for such challenges. There were also precedents of citizens approaching the court to seek rulings on the proper construction and enforcement of provisions of the Constitution.
Further, the Judicial Review Act 2000 allowed the court to entertain applications for judicial review that are justifiable in the public interest. Their Privy Council considered that the right to seek a declaration on the interpretation of the Constitution exists alongside the right to apply for judicial review.
Ouster clause
Regarding section 38 (1) of the Constitution, which provides that the President shall not be answerable to any court for any act done by him in the performance of his functions, the Privy Council noted that the protection which this gives to the President does not prevent the courts from examining the validity of his acts. The ouster clause will therefore not protect a decision from a legal challenge that it is ultra vires (unauthorised) and therefore invalid.
This column is not legal advice. If you have a legal problem, you should consult a legal adviser.
