Continued from Wednesday
Indeed, there are certain revolutionary aspects in the JRA, and it is precisely because it is so revolutionary and extreme in certain aspects, (eg Section 9, 10, 12, 22) that it seems to me that a compelling case exists for its reconsideration, as the learned AG has posited in the GC article. The responsibility of this Government for legislation-making in the public interest requires, and imports, that it be (by both principle and authority alike) the sole judge of what legislation (within its partisan legislation-making capacity) is for the public good and should be enacted, or commenced, as the case may be. So, it is entitled to take the view that provisions in the JRA, 2010 such as section 9 (”Exhaustion of alternative remedies”) whereby the High Court Judge for judicial review is vested with a concurrent jurisdiction (not even limited to exceptional circumstances) which supplants the jurisdiction of the appellate courts (presumably both the CoA and CCJ), is not for the public good, or in the public interest. If this is the thinking of the Government as appears from the AGs generalizations in the GC article, these are unassailable points in justification for this Government’s omission to bring the JRA into operation.

Be all that as it may, turning now briefly to the crucial question: whether it was competent for the High Court to grant the order of mandamus compelling the Minister ( a very different remedy from a declaration) to bring into force the JRA, 2010. In my respectful view, the State Liability And Proceedings Act, Cap 6:05 does not permit it. (see the analogous case of Collector of land Revenue South West District Penang (1986) 1 WLR 412, PC). But since the gravamen and crux of this matter, as I apprehend, is the constitutional freedom of a new government to reject, and depart from, even legislative policies/agenda of the predecessor government, there is a very poignant statement of principle by Viscount Haldane in a Privy Council case which merits reference.

This was a case where the new government, being dissatisfied with certain contractual arrangements entered into by the predecessor government, declined to take the necessary legal steps to give those arrangements legal force. Relevantly, Viscount Haldane said viz “there is no doubt that the agreement in controversy was executed with all the solemnities… and the question is whether it is binding… with the policy of the new administration in Newfoundland in repudiating it their Lordships have no concern. The administration may have acted harshly, or they may have been simply doing a public duty. Such a question is not one for a court of law, but is a domestic issue for the Government of Newfoundland and those to whom they are responsible” (Commercial cable company V. Government of Newfoundland (1916) 2 AC, at pages 614-615). Transposing that statement to our JRA coming into operation issue, I ask: was the PPP/C government JRA, 2010 enacted with all solemnities? Yes. Is there a change of government? Yes. Is it legally binding on the APNU+AFC Government to bring it into operation whereupon it becomes legally binding, until repealed (even as I must acknowledge that, technically, the JRA 2010 is not law, unless and until it is brought into force)? If one anticipates a reversal of the CJ (ag) ruling on appeal, the answer is – no. And, just as how that new administration was within its prerogative as a matter of governmental policy to decline to take the necessary legal measures (take it to the Assembly for ratification) to give legal force to those agreements, so should the APNU+AFC Government be constitutionally entitled to decline to make a commencement order to bring into force the JRA, thereby preventing it from being binding, with all its imperfections and extremes, on this Government.

Yet, what are the Attorney General’s prospect of success at the Caribbean Court of Justice (I say nothing of the local Court of Appeal). In my respectful view the signs are ominous and warrants cautious optimism. The CCJs decision in the Barbadian case of Edwards and Haynes V. The Queen (2017) CCJ 10 (AJ) gives us Caribbeaners much cause for unease as it patently illustrates a dispensation to arrogate unto itself its own perspective on matters of government policy and to, judicially, give effect to its perspective. This is clearly discernible from the very tenor of the judgments in the Edwards And Haynes case, quashing convictions for murder and reversing a unanimous decision of the Barbados Court of Appeal. There is by its very tenor and narrative, a nuanced tell-tale extract from the judgement of Justice Saunders: (for brevity because of space constraints the learned reader is referred to paragraphs “43”-“45” (inclusive) of the Honourable Justice’s Judgement. Suffice to quote a few sentences viz: “A new Evidence Act… was passed in Barbados in 1994. Its purpose was to reform the law… a decision was made to suspend the critical sections of the Act… The ostensible reason was that Barbados lacked the material resources to equip its police stations with the necessary recording devices. Over 20 years later these sections of the Act remain suspended… The suspension of these provisions severely distorts the effective operation of the Evidence Act and impedes fulfilment of many of its noble goals…”

I must point out the convictions were quashed essentially because the alleged oral confessions were ruled inadmissible by the CCJ because of the failure of the Government to install recording devices. Rightly, the AG is concerned that the learned CJ (ag) has by her Order contravened the doctrine of separation of powers, which, sensibly, places matters of governmental policy of the type involved in our JRA commencement matter, outside the Judiciary’s territorial boundaries, and places them, sensibly, within the territorial boundaries of the Executive (ie the President and his Cabinet). The learned CJ (ag) has encroached into Executive territory. And Viscount Haldane’s statement, in substance, embodies the separation of powers doctrine.

I end with this: it would be reckless and imprudent for the APNU+AFC Minister of Legal Affairs to bring the JRA, 2010 into operation in its present state. To judicially order the Minister so to do is to foist an imperfect PPP/C legislation on an unwilling, differently dispensated new APNU+AFC Government. That frustrates and impedes, rather than promotes the people’s will. It is a matter of much intrigue and anxiety whether the CCJ (and the local Court of Appeal) would demonstrate judicial restraint and uphold the minister’s prerogative (and by extension President Granger’s Cabinet) to decide for himself if, and when, the JRA, 2010 would come into operation.

Regards
Maxwell E. Edwards