Dear Editor,
APNU’s view, articulated by the Deputy Speaker and Ms Volda Lawrence, MP, that the Director of Public Prosecutions should appeal Chief Justice Chang’s decision in the Henry Greene matter (Stabroek News edition of April 3 refers) is commendable, if I may say so with respect. The matter has become a national issue and has spawned questions of considerable constitutional significance. For obviously good reasons the public needs to know. The Court of Appeal must enlighten and guide us.
However, with respect to the institution of an appeal a caveat of considerable importance needs to be entered. It is doubtful whether an appeal can be instituted in this matter because of the decision of the Court of Appeal in Zaman Ali (1991) 45 WIR 196 that an appeal cannot be brought against a decision respecting an order made in any criminal cause or matter – section 6(5) (a) of the Court of Appeal Act refers. If, however, the decision in this matter is considered to be appealable then it ought to be appealed so that answers could be provided for the vast and various legal problems it has engendered.
With respect to the process chosen for relief we need to remember that counsel for Commissioner Greene did not seek private law remedies but rather sought the issue of the prerogative writs of certiorari and prohibition which are remedies in public law, obtainable by the process of judicial review which is considered to be a fundamental mechanism for keeping public authorities within their due bounds. It is in that intellectual and juristic mould of public law that the matter was cast and argued, and determined by the issue of certiorari quashing the DPP’s decision to advise the police to institute charges against Greene.
In my opinion, the first question for determination is whether the DPP’s discretion to advise as she did is subject to judicial review. If the court considers that in the exercise of her discretion she is beyond the reach of the court’s supervisory (not appellate) jurisdiction then her decision cannot be impugned in public law and the question of quashing her decision cannot properly arise. Cadit quaestio. The determination of this basic, all important issue requires extensive legal arguments and can attract opinions from courts in other Commonwealth jurisdictions as well.
If the court considers that the exercise of the DPP’s discretion can be called in question in court for review, the question that arises is whether she has observed the principles and pathologies that the common law has prescribed as necessary for the proper exercise of her discretion. Since her discretion, if reviewable, is like discretion generally, not unfettered, she should, inter alia, not act unreasonably. Lord Diplock prefers the adverb “irrationally” (see his speech in the Civil Service case (1985) AC 374 (408)) and this has crept into use, but it is debatable whether the employment of the expression “irrationality” has provided any connotative addition beyond Lord Greene’s “unreasonableness” as propounded in Wednesbury (1948) 1 KB 223, often criticised but widely accepted throughout the common law world.
To act irrationally would be to act unlawfully (not wrongly) and the question of certiorari can arise. These are major considerations for the court where all evidentiary circumstances, both for and against, from beginning to end, require to be scrupulously considered. By his training and experience a judge at any level should be well equipped to deal with these matters. Obviously, there are other kindred considerations as well.
If the decision of the Chief Justice is appealed it would seem to me that a Bench of five judges should sit as befits a matter of such urgent and fundamental importance. Senior respected members of the Bar should be asked to sit, as has happened before. The public needs to know what are the precise powers of the DPP who is charged with the exercise of extremely important functions which bear on the rule of law. The last time that a Bench of five judges sat was in 1976 when the late great Chancellor JOF Haynes constituted such a Bench to determine the limits of voluntariness regarding a confessional statement which on its face was seemingly equivocal. (See the State v Oswald Gobin (1976) 23 WIR. 256. The Chancellor’s opinion in that matter was noted by the Privy Council in the Trinidadian case of Aiodha v The State (1981) 2 All ER 193.)
As one who teaches Public Law at the University of Guyana I look forward anxiously to the arguments and judgments that will emanate from the Court of Appeal for assistance to me in an area that many persons wrongly call arcane. But that is if an appeal can be instituted at law.
(For what it is worth I should mention that an expansive Judicial Review Act was enacted by our Parliament in 2010 but it has not yet been brought into operation. It covers a number of important matters, for example, cross-examination and additional remedies for which our present common law process does not provide.)
Yours faithfully
Keith Massiah, SC
