‘Guardians of the Constitution’: the Privy Council supports the growth of Public Interest litigation as a method to enforce the Rule of Law

In an important judgment dated 8 May 2017, in the case of Attorney General v Dumas [2017] UKPC 12 (on appeal from Trinidad & Tobago), the Privy Council has confirmed the role of the Courts as ‘Guardians’ of written Constitutions of the sort that are found in jurisdictions such as Trinidad & Tobago (as well as jurisdictions such as Bermuda).

In doing so, the Privy Council has recognized the standing of any citizen with an interest in good governance to bring ‘public interest’ legal proceedings with a view to seeking a binding legal declaration on the true interpretation of a written Constitution (even if that citizen has not suffered a personal breach of his fundamental rights and freedoms so as to give rise to a personal claim for Constitutional relief).

Most importantly, the Privy Council (per Lord Hodge) has endorsed the following statement of the Trinidadian Court of Appeal:

In our opinion, barring any specific legislative prohibition, the court, in the exercise of its supervisory jurisdiction and as guardian of the Constitution, is entitled to entertain public interest litigation for constitutional review of alleged non-Bill of Rights unlawful constitutional action; provided

  • the litigation is bona fide,
  • arguable with sufficient merit to have a real and not fanciful prospect of success,
  • grounded in a legitimate and concrete public interest,
  • capable of being reasonably and effectively disposed of, and
  • provided further that such actions are not frivolous, vexatious or otherwise an abuse of the court’s process“.

From a Bermuda law perspective, the Privy Council’s analysis appears to be entirely consistent with the views expressed by Chief Justice Kawaley in his judgment on the Referendum challenge that was brought by the Centre for Justice in 2016.

This genuinely feels like the Dawn of an Era, in terms of public interest, human rights, constitutional, and environmental litigation, both in the Caribbean and in other offshore jurisdictions and territories.

The challenge for the Courts, and for lawyers, and for Governmental agencies, is to ensure that genuine and meritorious claims are investigated and pursued and addressed (as they should be), and that they are pursued as efficiently as possible, for all concerned.

Does the threat of an adverse costs order for unreasonable behavior strike the right balance in this respect (in terms of weeding out the frivolous, vexatious or unarguable cases)? And to what extent should Protective Costs Orders and Costs Capping Orders be made available in ‘public interest’ and constitutional cases such as this?

Only time will tell…

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2 thoughts on “‘Guardians of the Constitution’: the Privy Council supports the growth of Public Interest litigation as a method to enforce the Rule of Law

  1. Your excerpt refers to “non-bill of rights” litigation – things like appointment of judges, composition of the legislature, etc. It is clearly right that any person could have standing for those, as they affect the whole constitutional system.

    I do think that the Chief Justice’s referendum decision on standing was an attempt to circumvent s.15 of the Constitution. The risk is that a similar public interest challenge could be brought in future and have some success at first instance but then be stymied at an appellate level by lack of standing, delaying resolution of an important bill of rights issue.

    Safest course is always try and find an injured party to bring the case. They can rely on Barbosa for costs protection, can be anonymised if there are safety or stigma concerns, and the public interest group can join as an interested party to ensure all relevant submissions are placed before the court.

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  2. Thank you for commenting (and for reading)!

    You are quite right to draw attention to the ‘non-Bill of Rights’ point, although I am not sure that this was intended (either by the Trinidad Court of Appeal or by the Privy Council) to limit the Court’s approach to standing so that there could not be a public interest challenge on Constitutional fundamental rights/freedoms grounds, if the relevant law or administrative action affected a group (or the entire population) rather than an individual.

    For completeness, the Court of Appeal’s judgment is available here:
    http://webopac.ttlawcourts.org/LibraryJud/Judgments/coa/2014/jamadar/CvA_14_P218DD22dec2014.pdf

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