Judicial review of the governor’s actions

The PPM proposes to include a provision in a revised Cayman Islands Constitution that would give our courts power to review a governor’s actions in all cases.

The review jurisdiction of the court is enshrined in the essence of the supervisory jurisdiction in the role of the courts ensuring that statutory powers are not usurped, exceeded or abused; and, that procedural and substantive duties owed to the public are performed.

The courts review jurisdiction was first founded on the company doctrine of ultra vires that one only has so much power as that the statute creating the power confers. The courts review jurisdiction also comes from the principle of the enforcement of the rule of law that persons or entities given statutory powers must be subject to challenge before the courts if they misuse them or purport to exercise them different or greater.

In our jurisdiction the Grand Court rules sets out the court’s jurisdiction and procedure for seeking judicial review. The Grand Court rules set out the grounds on which the exercise of power may be challenged. One may challenge on jurisdictional grounds; procedural irregularity; ultra vires; etc.

The questions for the reviewing court will simply be whether there was no compliance or whether the particular requirement has or has not the effect of rendering null and void what has been done.

Judicial review was successfully applied in the re Raglan Ropers case against the Governor in Council. Judicial review was applied in the Vaneixis Rivero Almaguer case against the Governor in Council and the chief secretary. Judicial review has been applied in various other cases involving the police, immigration board, school board and the liquor licensing board. No judicial review has been brought against a governor’s action in his sole capacity as governor. The PPM proposal for review of a governor’s actions as governor in all cases is novel and bold. One wonders how the mechanisms would be set up for such a review and how the administering power would allow our courts to review every action of a colonial governor.

Often in our legislation the legislature will include a clause to the effect that certain decisions by decision makers are final and no court of law can interfere therewith.

Some courts have declared that such enactments cannot ouster their inherent jurisdiction to review the action of decision makers. Such challenge to the court’s inherent jurisdiction was the issue in the leading case of Anisminic vs Foreign Compensation Commission. This important House of Lords decision was given in 1969. The plaintiff Anisminic mining properties located in the Sinai Peninsula was seized by the Egyptian Government in 1956 during the Suez War. The appellant sold the properties to an Egyptian-Government-owned company in 1957. In 1959 legislation passed under the Foreign Compensation Act 1950, an Order in Council to distribute compensation paid by Egypt to the UK Government for British nationalized properties. The appellants claimed entitlement to compensation from the Compensation Tribunal set up under the 1950 act. The Compensation Tribunal denied compensation because the plaintiff’s successors in title were not of British nationality.

There was a provision in the Foreign Compensation Act, the Order in Council that declared that the tribunal’s decision was final and no court could interfere with it.

Both the Court of Appeal and the House of Lords held that those clauses in colonial constitutions and laws that purport to ouster the courts jurisdiction are null and void. The court said that such clauses that state ‘…… shall not be called into question in any court of law’ are invalid ‘and cannot ouster’ the court’s jurisdiction to scrutinise the decision for an error of law and quashing it when such an error occurs.

Under our present constitution, the 1972 Order in Council, a governor has wide legislative powers together with extensive executive powers. In the cases referred to judicial review clearly does lie to correct decisions of statutory bodies or tribunal, especially those performing quasi judicial functions.

There have been no cases in the Cayman Islands where judicial review was ever brought to challenge a discretionary decision of a governor.

Professor Kate Malleson says in her article Rethiinking the Merit Principle in Judicial Selection (2006) appearing in the Journal of Law and Society that ‘ the emergence of the judiciary as the third branch of government, checking and scrutinising the executive, has removed the gap between the functions of the senior judiciary and elected politicians. Judges are not politicians in wigs but they are increasingly required to reach decisions in relation to politically controversial issues that cannot be resolved without reference to policy questions.’

The PPM’s proposal to include in a revised constitution, a provision which would give the courts power to review a governor’s actions in all cases, may be seen to be a challenge to future governor’s powers but the proposal is not out of line. The United Kingdom’s highest courts seem to agree that a governor’s action is not infallible.

I adopt the words of Commissioner Major AH Donald on the coming into effect of the first written Cayman Constitution on 4 July, 1959. He said, ‘This is a big step forward into the mainstream of modern constitutional practice….a more effective machine working more formally…a constitution that is a flexible instrument that will allow much development within its own framework.’

It will be interesting to see who would use the PPM’s proposal against a future governor if he would invoke the emergency powers law or the commission of inquiry law if the proposal receives the foreign and Commonwealth Office blessing in a revised Cayman Islands Constitution.

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