Grab for power

At a seminar held at the University of the West Indies (U.W.I.) to discuss the implications of the Mustill Report, Professor Selwyn Ryan accused the local judiciary of making a grab for power. He also said, “sometimes I feel ashamed of our judges behaving as they do… sometimes I think that our Judiciary is becoming to Americanised.”

Ryan singled out Judicial Review as being something “which provides a formula to challenge the Executive for authority.” As an attorney who specialises in this field I feel it is my duty to respond to this unfounded statement.

Judicial Review is based on the simple premise that the court is exercising its inherent supervisory jurisdiction over public officials to ensure that they act fairly, rationally and within the intended framework of the law. It is important that powers given to public officials be carefully monitored. The Judiciary has for centuries performed this function.

Judicial Review aims to review the decision making process to ensure that the discretion vested in public officials and public authorities is not exercised in a perverse manner with ulterior and improper motives. Essentially, it is there to prevent abuse of power.

There is no grab for power by our judiciary because the courts never usurp or perform the function of the public official. The matter is usually referred back to the offending body or person with an order that they reconsider their decision in accordance with the findings of the court. This is so no matter how strongly the court feels about the abuse of power.

I have never seen a local Judicial Review case where the unfairness and abuse of power did not merit judicial intervention. I have personally mentioned this fact to professor Ryan in the hope that he would try and substantiate his allegation of judicial transgression by reference to examples of decided cases where he felt this ‘grab for power’ manifested itself. Such empirical evidence should be readily available given the serious nature of this accusation. Empirical data is, after all, the tool of researchers.

The Constitution is the supreme law of the land and it is important that the courts strengthen their supervisory muscle over the abuse of executive power because the tendency towards abuse is greater where there is no one to account to and no possibility of review. Contrary to Ryan’s thinking, my view is that our Judiciary is by far too conservative. Some judges are far more likely to nit pick on technical and procedural issues at the expense of the overall justice which the case demands.

There is a deep-seated respect for the Executive and judges seldom step out of their crease to fault public officials. This for example, explains why the courts invented what is known as the ‘presumption of regularity’. This essentially means that the actions of public officials must be presumed to be valid and proper. Aggrieved citizens therefore shouldered the onerous burden of having to dislodge this powerful presumption.

It was only recently in the case of Mohanlal Bhagwandeen that the Privy Council neutralised the harsh effects of this principle when it confirmed that our courts have misunderstood and misapplied the presumption of regularity for several decades.

Evidence of the conservative approach of our courts could also be seen in the Maha Sabha Radio License case where the Court of Appeal having found that the Maha Sabha was a victim of discrimination gingerly ordered cabinet to reconsider the application for a radio license instead of ordering the government to grant it outright. This relief was eventually granted by the Privy Council but even so, on the basis that the Government had misled the Courts. It was therefore an exceptional and extreme case.

The courts must ensure that the state acts fairly. It must be an agent of change and strengthen the rights of citizens. The illuminating and erudite dissenting judgment of Kangaloo JA in the case of Alphie Subiah illustrates this. Justice Kangaloo disagreed with our new Chief Justice who adopted a rather conservative approach towards the quantification of monetary compensation for victims of police brutality. He preferred a larger award because the court should manifest the public outrage at the scandalous abuse of power by the police against law abiding innocent citizens. This matter is now on appeal to the Privy Council.

There is great need for a robust, strong and vibrant Judiciary that would not be easily intimidated by the executive. This is the only protection citizens have against abuse of power.

Ryan stated that he did not think it was now possible anymore for politics to be kept out of the judiciary. One can only hope that the new Chief Justice does all within his power to prove him wrong lest our fundamental rights be desecrated with impunity.

By Anand Ramlogan 2008-02-02