Re Crane; Crane v Rees et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Blackman, J. |
| Judgment Date | 21 March 1991 |
| Neutral Citation | TT 1991 HC 82 |
| Docket Number | 3788 of 1990 and 3961 of 1990 |
| Court | High Court (Trinidad and Tobago) |
| Date | 21 March 1991 |
High Court
Blackman, J.
3788 of 1990 and 3961 of 1990
Mr. Alexander S.C., Mr. Solomon S.C., Mr. Allum, Mr. Amour and Mr. Mendes for the applicant
Mr. Procope S.C., Mr. Thorne S.C., Mr. Maharaj and Mr. Martineau for the respondents.
Mr. Alexander S.C., Mr. Solomon S.C., Mr. AllureMr. Amour and Mr. Mendes for the applicant.
Mr. R.B. Procope S.C., Mr. E. Thorne S.C., Mr. S. Maharaj and Mr. Martineau for the 4th–8th respondents.
Mr. De La Bastide S.C. and Mr. N. Bisnath for the 1st–3rd respondents.
Mr. M. Daly S.C. and Mr. Lamont for the 9th respondent.
Judicial review - Application inter alia for (1) order of certiorari to quash decision of Chief Justice that applicant should cease to preside in court (2) order of mandamus to compel Chief Justice to do such administrative acts as necessary to permit applicant to perform his functions as a judge of High Court of Trinidad and Tobago (3) Order of prohibition restraining Judicial and Legal Services Commission (JLSC) from representing to the President under s. 137 of the Constitution that the question ought to be investigated — whether principles of natural justice/or fairness violated — Whether decision of Chief Justice and JLSC ultra vires and biased — Whether Commission should have notified applicant of the charges against him and given him a fair opportunity of responding — No express provision in section 137 of the Constitution for a judge to be heard — No requirement for person to be heard where an act or proposal is only the first step in a sequence of measures which may culminate in a decision detrimental to his interest — JLSC performing more of an administrative than judicial or quasi-judicial function — Orders sought by applicant denied.
Before me are two applications. One is an application for judicial review; the other is an application under section 14 of the Constitution. By consent of the parties, both applications were taken together. I must say at the outset that I on indeed deeply saddened to have to adjudicate on these matters because of the parties involved. The applicant is a Senior Judge of the Supreme Court of Trinidad and Tobago (High Court Division). The respondents are the Chief Justice of Trinidad and Tobago, the Judicial and Legal Service Commission the body which in effect is responsible for the appointment and promotion of Judges of the Supreme Court — and members of a tribunal appointed by the President under section 137 of the Constitution of Trinidad and Tobago, one of whom is a judge and the others retired judges.
Unpleasant though my task may he, I cannot however shirk my responsibility in this matter.
In the judicial review application, the applicant has sworn to two affidavits but the main one was sworn on 16th November, 1990. In reply, there is an affidavit by Mr. Nigel Pierre, who was Secretary to the Judicial and Legal Service Commission at the material time. Mr. Pierre was also cross-examined by attorney for the applicant, with leave of the court.
There are also two affidavits sworn by the applicant in support of the motion under the Constitution; aria one by Nigel Pierre, the Secretary to the Judicial and Legal Service Commission.
The Judicial one Legal Service Commission will hereinafter be referred to either the J.L.S.C. or “the Commission”; 3) and the members of the tribunal appointed under section 137 of the Constitution as the tribunal.”
Leave to apply for judicial review was grantee to the applicant on 23rd November, 1990; on 22nd November, 1990, His Excellency, the President of the Republic of Trinidad and Tobago, had appointed the tribunal comprising Evan Arnold Rees Esquire, retired Justice of Appeal, Garvin Montagu Scott Esquire, retired Justice of Appeal, and Lennox Dunbar Deyalsingh Esquire, Judge of the High Court.
On 23rd November, 1990, the applicant was suspended from performing the functions of his office under section 137 of the Constitution.
In the case of the judicial review proceedings, the reliefs sought are:
“(a) An Order of certiorari to remove in this Honourable Court and quash the decision of the Chief Justice of Trinidad and Tobago that the applicant should cease to preside in court, which decision was referred to in the decision of the Judicial and Legal Service Commission of the 19th July, 1990 and communicated by the acting Director of Personnel Administration to the applicant by letter of 16th October, 1990.
(b) An Order of certiorari to remove into this Honourable Court and quash the decision of the Judicial one Legal Service Commission taken on the 19th July, 1990 which was first referred to by the acting Director of Personnel Administration in a letter to the applicant dated the 23rd August, 1990 and subsequently referred to by the said Acting Director by way of purported correction in a further letter to the applicant dated the 16th October, 1990, whether the recision was to interdict the applicant from presiding in court until further notice as was originally stated or to concur with the decision of the Chief Justice to this same effect as was stated subsequently.
(c) An Order of Mandamus directed to the Chief Justice of Trinidad and Tobago requiring him to do such administrative acts falling within his competence and/or authority as may be necessary to permit the applicant fully to perform his functions as a judge of the High Court of Trinidad and Tobago.
(d) An Order of Certiorari to remove into this Honourable Court and quash the decision of the Commission to represent to the President under section 137 of the Constitution that the question of removing the applicant as a judge ought to be investigated.
(e) An Order of prohibition directed to the Commission constituted at present restraining the Commission from representing to the President under section 137 of the Constitution that the said question ought to be investigated.
AND IN ADDITION:
(f) A declaration that the said decisions of the Chief Justice and/or the Judicial and Legal Service Commission referred to in paragraph 2(a) and (b) hereof are ultra vires, null and void and of no effect.
(g) A declaration that the said decision by the Commission to represent to the President that the said question ought to be investigated is ultra vires, null and void and of no effect.
(h) A declaration that any and all proceedings subsequent to and in purported pursuance of the said decision to represent referred to in paragraph 2(d) hereof, including the appointment of a tribunal, are ultra vires, null and void and of no effect.
(i) An interim order directing the Chief Justice to do such administrative acts falling within his competence or authority as may be necessary to enable the applicant fully to perform his functions as a judge of the High Court until the determination of the application for judicial review, or further order.
(j) An order abridging the time for the hearing of the ex parte application herein for leave to apply for judicial review.
(k) That all other necessary and consequential directions be given.
(l) Damages.
(m) Costs.
The grounds upon which the reliefs are sought are as follows:
(a) The applicant is a duly appointed Judge of the High Court of Trinidad and Tobago.
(b) The Chief Justice failed and/or omitted and/or refused to assign the applicant to a court for the period October 1990 to January 1991.
By letter dated the 23rd August, 1990, which came to the applicant's attention on 8th October, 1990, the Acting Director of Personnel Administration informed the applicant that the Judicial and Legal Service Commission, having considered complaints about his performance in court and doubts about his state of health, had decided that the applicant should cease to preside in court.
By letter dated 16th October, 1990, the Acting Director of Personnel Administration informed the applicant that the decision of the Judicial and Legal Service Commission taken on the 19th July, 1990 had been incorrectly recorded in the letter dated 23rd August, 1990 and that it should now read that the Commission, after having, considered complaints about the applicant's performance in court one doubts about his state of health, agreed with the decision of the Chief Justice that the applicant should cease to preside in court.
The Judicial and Legal Service Commission took a decision to represent to the President pursuant to section 137 of the Constitution that the question whether the applicant should be removed as judge ought to be investigated, and on or about the 2nd day of November, 1990, did so represent. By section 137 of the Constitution, a judge can be removed only for inability to perform the functions of his office, whether arising from infirmity of mind or body or any other cause, or for misbehaviour.
(f) The Chief Justice and/or the Judicial and Legal Service Commission by their decisions aforesaid, intended to and did effectively suspend and/or interdict the applicant from performing his duties as a judge allegedly for considerations relating to his performance in court and his state of health and thereby acted unconstitutionally, illegally and without competence, authority or jurisdiction in that:
(i) The respondents have no authority or jurisdiction under the Constitution or any other law to suspend and/or interdict the applicant from presiding in court and/or to exercise disciplinary control over a judge of the High Court, as they purported to do.
(ii) The respondents violated and/or purported to violate the provisions of:–
a) Section 106 of the Constitution which deals with the tenure of office of a judge:
b) Section 136(6) of the Constitution which deals with the security of tenure of the office of a judge;
c) Section 137 of the Constitution which provides the only lawful means by which a judge...
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