IpsofactoJ.com: International Cases [2007] Part 9 Case 3 [PC]


THE PRIVY COUNCIL

(from the Court of Appeal, Trinidad & Tobago)

Coram

Bobb

- vs -

Manning

LORD BINGHAM OF CORNHILL

LORD HOPE OF CRAIGHEAD

LORD CARSWELL

LORD BROWN OF EATON-UNDER-HEYWOOD

LORD MANCE

25 APRIL 2006


Judgment

Lord Bingham of Cornhill

(delivered the judgment of the Board)

  1. In 2001-2002 the Republic of Trinidad and Tobago experienced a constitutional crisis. The appellants, both of them electors in one of the state’s electoral districts, applied for leave to apply for judicial review, seeking remedies to resolve the crisis. Their complaint was that the respondent, who at all material times acted as the Prime Minister, had retained (or declared an intention to retain) power in a manner that was unconstitutional and unlawful. Leave to apply was refused at first instance and on appeal, and the appellants now challenge that refusal on appeal to the Board, while acknowledging that the situation has changed, factually and legally, since they first applied.

  2. Acting on the advice of the then Prime Minister (Mr. Basdeo Panday) in accordance with section 68(1) of the Constitution, the President dissolved Parliament in early October 2001. A writ was duly issued, as required by section 33 of the Representation of the People Act (c 2:01) as amended by section 17 of the Representation of the People (Amendment) Act 2000, for a general election to be held on 10 December 2001. At this election the major parties in contention were the People’s National Movement (the PNM) led by the respondent and the United National Congress (the UNC) led by Mr. Panday. At that time there were 36 constituencies, as provided by sections 46(2) and 70(1) of the Constitution, each entitled to return one member to the House of Representatives. The upshot of the general election was that the PNM and the UNC each won 18 seats, giving neither party a majority in the House.

  3. It was the President’s duty to appoint a Prime Minister. In the ordinary course the President must, by section 76(1) of the Constitution, reflecting the practice in other constitutions based on the Westminster model, appoint as Prime Minister “(a) a member of the House of Representatives who is the Leader in that House of the party which commands the support of the majority of members of that House”, provided he is willing to accept office. The equality of seats between the two parties, however, meant that neither party leader could claim to command the support of a majority of members. This was a contingency which the framers of the Constitution had presciently foreseen, by providing an alternative in section 76(1):

    (a)

    .... or

    (b)

    where it appears to him [the President] that that party does not have an undisputed leader in that House or that no party commands the support of such a majority, the member of the House of Representatives who, in his judgment, is most likely to command the support of the majority of members of that House ....

    again assuming the willingness of that person to accept office. Acting under section 76(1)(b), the President appointed the respondent as Prime Minister on 24 December 2001. The appellants have made no criticism of that action. Sections 38 and 80(3)(a) of the Constitution would appear to preclude any challenge to the President’s decision in any event. But it is not suggested that the President acted other than properly in the difficult, and no doubt unwelcome, situation in which he found himself. The President duly appointed members of the Senate in accordance with section 40 of the Constitution and the respondent appointed members of his Cabinet in accordance with section 75.

  4. Section 67(1) of the Constitution provides that each session of Parliament shall be held at such place and shall commence at such time as the President may by proclamation appoint, but the frequency of Parliamentary sessions is regulated by section 67(2) which requires that there shall be a session of each House once at least in every year, so that a period of six months shall not intervene between the last sitting of Parliament in one session and the first sitting thereof in the next session. A “session” is defined in section 3 to mean the sitting of a House commencing when it first meets after a dissolution, and a sitting means a period during which a House is sitting continuously without adjournment. Acting under section 67(1), the President on 27 March 2002 issued a proclamation appointing the Red House, Port of Spain, as the place and 1.30 pm on Friday 5 April 2002 as the time at which the first session of the new Parliament should commence.

  5. When the House of Representatives met on the appointed day, its first task was to elect a Speaker, which was a necessary condition of conducting any other business. So much is clear from section 50(1) of the Constitution:

    (1)

    When the House of Representatives first meets after any general election and before it proceeds to the despatch of any other business, it shall elect a person to be the Speaker of the House ....

  6. The person elected as Speaker need not be an elected member of the House (sections 46(3), 50(2)) but must be elected by the House, on a majority of votes and with no provision for a casting vote. On 5 April 2002 the House failed to elect a Speaker. It tried again on the following day, and failed again. It is understandable that neither the PNM nor the UNC wished to nominate one of its members to be Speaker, thereby putting itself in a minority; and there was no agreement on a non-member candidate. Thus the House could conduct no business and Parliament (consisting of the President, the Senate and the House: section 39) could not function. On 6 April 2002, in accordance with the advice of the respondent, the President prorogued Parliament under section 68(1) of the Constitution.

  7. There was an impasse. Section 77(1) of the Constitution provides for the resignation of a Prime Minister or the dissolution of Parliament if the House passes a resolution supported by the votes of a majority of all the members of the House declaring that it has no confidence in the Prime Minister. But no such resolution was passed: the House could not pass such a resolution until it had elected a Speaker, and there would have been no majority in favour of such a resolution. This impasse naturally provoked much political controversy and media debate, as is clear from published materials laid before the Board.

  8. In an address to the 23rd Meeting of the Conference of the Heads of Government of the Caribbean Community in Georgetown, Guyana, on 3 July 2002 the respondent said:

    In the case of Trinidad and Tobago, the last General Election resulted in a hung parliament, with both sides each obtaining 18 seats. This political result is unprecedented for us and I am told equally unique in the Caribbean. Our people have responded to this development with tremendous maturity, undoubtedly an indication of their confidence that a resolution will be found within the framework of our democratic institutions.

    If we are unable to elect a Speaker and/or pass a budget by October 31st, the end of this current budget period, General Elections will be held in Trinidad and Tobago.

  9. This observation calls for a little explanation. The Republic’s financial year had been prescribed to mean a period of 12 months ending on 30 September. Money bills may only be introduced in the House (section 63(1) of the Constitution), and certain important financial provisions require the recommendation or consent of the Cabinet (section 63(2)). As would be expected, the Constitution regulates the receipt of public monies into a Consolidated Fund and the disbursement of public monies from it. This is the effect of sections 112-114:

    112.

    (1)

    All revenues or other moneys raised or received by Trinidad and Tobago, not being revenues or other moneys payable under this Constitution or any other law into some other public fund established for a specific purpose shall, unless Parliament otherwise provides, be paid into and form one Consolidated Fund.

    (2)

    No moneys shall be withdrawn from the Consolidated Fund except to meet expenditure that is charged upon the Fund by this Constitution or any Act or where the issue of those moneys has been authorised by an Appropriation Act or an Act passed in pursuance of section 114 or in accordance with any other law.

    (3)

    No moneys shall be withdrawn from any public fund other than the Consolidated Fund unless the issue of those moneys has been authorised by an Act.

    (4)

    No moneys shall be withdrawn from the Consolidated Fund or any other public fund except in the manner prescribed.

    113.

    (1)

    The Minister responsible for finance shall cause to be prepared and laid before the House of Representatives before or not later than thirty days after the commencement of each financial year estimates of the revenues and expenditure of Trinidad and Tobago for that year.

    (2)

    The heads of expenditure contained in the estimates, other than expenditure charged upon the Consolidated Fund by this Constitution or any Act, shall be included in a Bill, to be known as an Appropriation Bill, providing for the issue from the Consolidated Fund of the sums necessary to meet that expenditure and the appropriation of those sums for the purposes specified therein.

    (3)

    If in respect of any financial year it is found—

    (a)

    that the amount appropriated by the Appropriation Act for any purpose is insufficient or that a need has arisen for expenditure for a purpose for which no amount has been appropriated by the Act; or

    (b)

    that any moneys have been expended for any purpose in excess of the amount appropriated for the purpose by the Appropriation Act or for a purpose for which no amount has been appropriated by the Act,

    a supplementary estimate showing the sums required or spent shall be laid before the House of Representatives and the heads of any such expenditure shall be included in a Supplementary Appropriation Bill.

    114.

    Parliament may make provision under which, if the appropriation Act in respect of any financial year has not come into operation by the beginning of that financial year, the Minister responsible for finance may authorise the withdrawal of moneys from the Consolidated Fund for the purpose of meeting expenditure necessary to carry on the services of the Government until the expiration of thirty days from the beginning of that financial year or the coming into operation of the Act, whichever is the earlier.

  10. Thus the respondent’s reference to 31 October appears to have been based on the date, 30 days after expiration of the financial year, when no further money could lawfully be paid out of the Consolidated Fund.

  11. The appellants issued these proceedings on 16 August 2002. They sought wide-ranging relief, including orders directing the respondent to cause elections to be held on or before certain dates, and declarations that the office of Prime Minister should in certain events be declared vacant. The first two heads of relief were:

    (a)

    A declaration that the continuing decisions of [the respondent] to retain the office of Prime Minister after 03 July 2002 without causing a date for General Elections to be fixed is illegal.

    (b)

    A declaration that the decision of [the respondent] contained in his address on 03 July 2002 to the 23rd Conference of Heads of Caricom Government in which he has stated that he has up to 31 October 2002 to decide to hold General Elections is unreasonable and illegal.

  12. The appellants’ application for leave was heard by Mohammed J with exemplary promptness, and on 27 August 2002 he dismissed it, giving his reasons in a carefully-considered judgment. He concluded that the naming of a date for a general election pre-eminently involves political policy, political strategy and other political considerations which were at that stage non-justiciable. The appellants could not show that the respondent had exceeded his constitutional authority. The financial provisions in sections 112-114 of the Constitution were powerful safeguards against possible abuse of power, “perhaps some of the most powerful and institutionally pragmatic that could have been devised”. The checks and balances in the Constitution, coupled with the provisions for removing a Prime Minister, meant that the court had no jurisdiction in public law at that stage to direct a Prime Minister to announce a date for a general election by a certain period. That was not to say that judicial review could never be sought to review administrative acts and decisions which were arguably illegal and unreasonable. But the appellants could not identify any illegal, improper or irrational administrative act or decision. Therefore the court had no jurisdiction to entertain the application. But in any event the issues raised were academic, hypothetical and premature. The appellants gave notice of appeal against this decision on the following day, 28 August.

  13. Also on 28 August, Parliament met again. The parties remained deadlocked and the House was again unable to elect a Speaker. On 30 August 2002, acting on the advice of the respondent, the President dissolved Parliament under section 68(1) of the Constitution. A general election was held on 7 October 2002. At this election, the PNM won 20 seats in the House, and the UNC 16. The respondent was reappointed as Prime Minister and a Speaker was duly elected. Thus the constitutional crisis was resolved. To avert or reduce the risks of repetition, the House in due course adopted a recommendation of the Elections and Boundaries Commission under section 72 of the Constitution that the number of constituencies be increased from 36 to 41, an uneven number: See the Elections and Boundaries Commission Order 2005, which came into force on 16 July 2005.

  14. The appellants’ appeal was dismissed by the Court of Appeal on 11 February 2004. Fully reasoned judgments were given by Sharma CJ and Nelson JA, with both of whom Kangaloo JA agreed. Since the immediate crisis had by this time been resolved, the case had a somewhat different aspect, but in essentials the court agreed with the conclusions of the judge. Like him, but fortified by knowledge of what had transpired, the court regarded the issues as academic or hypothetical. The case raised questions of political judgment which were unsuited to judicial resolution, and infringed (per Nelson JA) the separation of powers. The court did not regard the existence of political considerations as necessarily precluding review by the court, but like the judge found no act or decision of the respondent to be reviewable on any of the conventional grounds. There was no unlawfulness in the respondent’s statement to the Caricom leaders. Nelson JA made reference with approval to the judge’s reliance on the financial provisions of the Constitution as a safeguard against abuse but found, on the facts, no abuse of power.

  15. In challenging the Court of Appeal’s refusal of relief to the appellants, Mr. Maharaj SC laid stress on the fundamental nature of Trinidad and Tobago as a fully democratic state governed by its Constitution. That Constitution, he argued, provided for the conduct of the executive government by a Prime Minister and Cabinet appointed by the President but collectively responsible and accountable to Parliament. Thus the Constitution precludes (section 67(2)) excessive intervals between sessions of Parliament. Parliament must appoint (section 66A) Select Committees to scrutinise the exercise of governmental and public power. The House may in effect force (section 77(1)) the resignation or dismissal of a Prime Minister or the dissolution of Parliament. Standing Orders of the House provide for the presentation of petitions and the questioning of ministers. Through such means the people are enabled, through representation in Parliament, to play their part in the institutions of the national life, as the preamble to the Constitution envisages they should. So long as Parliament is unable to function, the democratic process is emasculated and replaced by its antithesis, unaccountable government.

  16. Secondly, Mr. Maharaj urged that the courts should not abdicate their important function of constitutional adjudication. He relied in particular on the brave and memorable observations of Bhagwati J in the Supreme Court of India in State of Rajasthan v Union of India AIR [1977] SC 1361 at 1413-1414, para 143:

    This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law. To quote the words of Mr. Justice Brennan in Baker v Carr [369 US 186, 211 (1962)]

    Deciding whether a matter has in any measure been committed by the Constitution to another branch of Government or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation and is a responsibility of this Court as ultimate interpreter of the Constitution.

    Where there is manifestly unauthorised exercise of power under the Constitution, it is the duty of the Court to intervene. Let it not be forgotten, that to this Court as much as to other branches of Government, is committed the conservation and furtherance of democratic values. The Court’s task is to identify those values in the constitutional plan and to work them into life in the cases that reach the Court.

    Tact and wise restraint ought to temper any power but courage and the acceptance of responsibility have their place too.

    The Court cannot and should not shirk this responsibility, because it has sworn the oath of allegiance to the Constitution and is also accountable to the people of this Country. There are indeed numerous decisions of this Court where constitutional issues have been adjudicated upon though enmeshed in questions of religious tenets, social practices, economic doctrines or educational policies. The Court has in these cases adjudicated not upon the social, religious, economic or other issues, but solely on the constitutional questions brought before it and in doing so, the Court has not been deterred by the fact that these constitutional questions may have such other overtones or facets. We cannot, therefore, decline to examine whether there is any constitutional violation involved in the President doing that he threatens to do, merely on the facile ground that the question is political in tone, colour or complexion.

  17. Mr. Maharaj submitted, in reliance on these submissions, that relief should have been granted to the appellants.

  18. There is little, if anything, in the first of these submissions at which the Board would wish to cavil. The conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lies at the heart of Westminster democracy. The Board would similarly accept, with little or no reservation, the role assigned to the Trinidad courts and this Board as the ultimate guardians of constitutional compliance, recognising the Constitution (section 2) as the supreme law of Trinidad and Tobago. The Board cannot, however, accept that these propositions lead to the destination sought by the appellants.

  19. The rule of law requires that those exercising public power should do so lawfully. They must act in accordance with the Constitution and any other relevant law. In some contingencies these instruments may make quite clear what an office-holder must do. For instance, if a resolution of no confidence in the Prime Minister is passed by the House by the required majority, he must within seven days resign or advise the President to dissolve Parliament, and if he fails to do so the President must revoke his appointment. There is no grey area here. But some contingencies are not the subject of express constitutional provisions, and the respondent’s situation on 6 April 2002 was one of them. His duty was then to act as the Constitution required or (put negatively) to avoid acting inconsistently with it.

  20. The appellants did not contend in the lower courts that the respondent, unable to procure the election of a Speaker and so to enable Parliament to function, should have advised the President to dissolve Parliament following the impasse on 6 April, although Mr. Maharaj did rather gingerly embrace this argument before the Board. First thoughts were best. The respondent could, constitutionally, have advised a dissolution at that stage, but there were a number of wholly proper reasons for not doing so. It could reasonably be hoped that further negotiation, perhaps stimulated by public criticism of the partisan stalemate, might lead to a compromise, such as agreement on an independent non-member Speaker. It might be hoped that a member of the other party might defect. It could well have been feared that a second election held so soon after the last might yield the same result. The respondent could reasonably have seen potential public disadvantages in another election so soon: Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, [2002] NI 390, paras 11-14, 28-30. The respondent was entitled to exercise his informed political judgment on whether, at that stage, the public interest required another dissolution, and there is nothing to suggest that he exercised his judgment inconsistently with the Constitution. Elections are a very important, but not the only, expression of democracy.

  21. As was correctly held by the courts below, the appellants cannot point to any unlawful act of the respondent between 6 April 2002 and the dissolution of Parliament following the further failure by the House to elect a Speaker on 28 August. No unlawful act was done, no unauthorised expenditure made. The appellants made the general complaint that the respondent had unlawfully retained power, but could point to no constitutional breach. This general complaint crystallised as a more specific complaint based on the respondent’s speech of 3 July and his assertion that a general election would be held if it proved impossible to elect a Speaker and pass a budget by 31 October. Since, under section 33 of the Representation of the People Act, as amended, a general election cannot be held in less than 35 days from the date of the writ of election issued by the President, and since there would inevitably be some delay after a general election before the new Parliament could be convened, a Speaker of the House elected and a budget passed, sections 112-114 of the Constitution would plainly require a dissolution of Parliament well before 31 October. But it is unnecessary to resort to precise arithmetic, since the Board agrees with the courts below that the respondent’s speech of 3 July cannot be treated as a formulated policy statement or decision susceptible to challenge by judicial review. As it was, the respondent advised a dissolution well before 31 October and a stage was never reached when unauthorised expenditure was made or government bills were left unpaid.

  22. The Board agrees with the appellants that irresponsible, unaccountable government is the antithesis of the democratic model on which the state of Trinidad and Tobago is founded. But periods of such government are sometimes unavoidable, as during general election periods, and an extended period of such government was not reasonably avoidable here. It was not, however, an open-ended period, since (as held by the courts below) sections 112-114 of the Constitution did impose a limit which, if longer than desirable, was not indefinite. And the respondent’s government was not immune from media scrutiny, public debate and (if it acted unlawfully) legal challenge.

  23. It was submitted by the respondent that the Board should not rule on the substantial issue raised by the appellants, since it had been overtaken by the outcome of the October 2002 election and the alteration in the number of constituencies rendered a repetition of the crisis unlikely. Some other Caribbean countries, it was pointed out, have even numbers of constituencies, and a decision in this case could affect them. It was said that a decision should not be made on the point argued until, if ever, it had to be made to resolve a live dispute. The Board is mindful of the undesirability in many cases of deciding points in the abstract. But it is also mindful that the courts below, while refusing leave, gave full judgments on the merits. Since the Board agrees with those judgments it is unsatisfactory to leave possible doubt about their correctness by ruling that no decision is called for. The Board also considers that the respondent, whose conduct has been publicly stigmatised as unconstitutional, is entitled to be publicly vindicated.

  24. For all these reasons the Board dismisses the appeal with costs.


Cases

State of Rajasthan v Union of India AIR [1977] SC 1361

Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, [2002] NI 390

Legislations

Representation of the People Act (c 2:01): s.33

Representation of the People (Amendment) Act 2000: s.17

Constitution: s.2, s.38, s.46, s.50, s.63, s.66A, s.67, s.68, s.70, s.75, s.76, s.77, s.80, s.112, s.113, s.114

Representations

Mr. Maharaj SC for the appellant.


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