Jomo Sanga Thomas is a lawyer, journalist, social commentator and Speaker of the House of Assembly in St. Vincent and the Grenadines.(iWN file photo)

By *Jomo Sanga Thomas 

(Plain Talk, Sept. 20, 2019)

“The conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lies at the heart of Westminster democracy. Ministers are accountable to Parliament through such mechanisms as their duty to answer Parliamentary questions and to appear before Parliamentary committees, and through Parliamentary scrutiny of the delegated legislation which ministers make. By these means, the policies of the executive are subjected to consideration by the representatives of the electorate, the executive is required to report, explain and defend its actions, and citizens are protected from the arbitrary exercise of executive power.” — British Supreme Court.

The recent decision of the British Supreme Court on the powers of the executive and the 2018 decision of the Caribbean Court of Justice on the no confidence vote in Guyana, offer very important lessons for our democracy, especially the speedy way the cases worked their way through the courts. These lessons are critically important considering the election petition cases that have been going on for almost four years – 80%of the term of the current government.

Below are import excerpts from the English case:

“Although the United Kingdom does not have a single document entitled ‘The Constitution’, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development. Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context. 

“The legal principles of the constitution are not confined to statutory rules, but include constitutional principles developed by the common law. We have already given two examples of such principles, namely that the law of the land cannot be altered except by or in accordance with an Act of Parliament, and that the Government cannot search private premises without lawful authority. Many more examples could be given. Such principles are not confined to the protection of individual rights, but include principles concerning the conduct of public bodies and the relationships between them. For example, they include the principle that justice must be administered in public and the principle of the separation of powers between the executive, Parliament and the courts. In their application to the exercise of governmental powers, constitutional principles do not apply only to powers conferred by statute, but also extend to prerogative powers. For example, they include the principle that the executive cannot exercise prerogative powers to deprive people of their property without the payment of compensation.

“Two fundamental principles of our constitutional law are relevant to the present case. The first is the principle of Parliamentary sovereignty: that laws enacted by the Crown in Parliament are the supreme form of law in our legal system, with which everyone, including the Government, must comply. However, the effect which the courts have given to Parliamentary sovereignty is not confined to recognising the status of the legislation enacted by the Crown in Parliament as our highest form of law. Time and again, in a series of cases since the 17th century, the courts have protected Parliamentary sovereignty from threats posed to it using prerogative powers, and in doing so have demonstrated that prerogative powers are limited by the principle of Parliamentary sovereignty. To give only a few examples, in the Case of Proclamations the court protected Parliamentary sovereignty directly, by holding that prerogative powers could not be used to alter the law of the land. Three centuries later, the court prevented the Government of the day from seeking by indirect means to bypass Parliament, in circumventing a statute through the use of the prerogative. More recently, the court again prevented the Government from rendering a statute nugatory through recourse to the prerogative and was not deflected by the fact that the Government had failed to bring the statute into effect. As Lord Browne-Wilkinson observed in that case, ‘the constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body’. 

“The sovereignty of Parliament would, however, be undermined as the foundational principle of our constitution if the executive could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased. That, however, would be the position if there was no legal limit upon the power to prorogue Parliament. An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty. 

“The same question arises in relation to a second constitutional principle, that of Parliamentary accountability, described by Lord Carnwath as no less fundamental to our constitution than Parliamentary sovereignty. As Lord Bingham said, ‘the conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lies at the heart of Westminster democracy’. Ministers are accountable to Parliament through such mechanisms as their duty to answer Parliamentary questions and to appear before Parliamentary committees, and through Parliamentary scrutiny of the delegated legislation which ministers make. By these means, the policies of the executive are subjected to consideration by the representatives of the electorate, the executive is required to report, explain and defend its actions, and citizens are protected from the arbitrary exercise of executive power.”

This decision as well as that of the CCJ did not only pronounce on major points of law. They speedily brought finality to thorny issues that divided the society and threatened to bring constitutional and societal order in question. After almost four years, our courts are still grappling with issues that arose out of the 2015 elections. 

This does not bode well for our democracy and court system must urgently address this problem.

*Jomo Sanga Thomas is a lawyer, journalist, social commentator and Speaker of the House of Assembly in St. Vincent and the Grenadines. 

The views expressed herein are those of the writer and do not necessarily represent the opinions or editorial position of iWitness News. Opinion pieces can be submitted to news.iwitness@gmail.com.

3 replies on “Speed, substance and law”

  1. As a lawyer JOMO, you are no doubt well acquainted with the legal maxim attributed to William Penn that says that, to delay justice is indeed a form of injustice, and as is usually expressed as “Justice delayed is justice denied”!

    Therefore, for the NDP and thus therefore the Vincentian people, to be waiting this length of time for a full outcome in the Courts, pertaining the last election that was held here, is truly shameful. Yet the same is in no way surprising, considering the background of those who staff the judiciary, and other political rulers here and in the Caribbean generally.

    But are they any different in make up from their counterparts elsewhere? The Liberal-left of which you are no doubt counted amongst, have been in the ascendancy for a good many years now. An example of which is this, our Prime Minister, in office for over nineteen years appears to be accountable only to himself and not to our Parliament.

    Moreover before entering into office he copied much of the mantra of Tony Blair then in the UK, Fidel Castro in Cuba and others who were either Communist, Socialist or just downright unaccountable dictators. Similar situations of unaccountability to the electorate undoubtedly continue to exist not only in Venezuela, Cuba, and Nicaragua but also in Zimbabwe despite the recent death of Robert Mugabe.

    This unholy mix of out of control Politicians enjoined by senior Judges, appears to be very much one of a problem of power struggle between the Liberal-left and civil society. Between the governed and those who wish to govern with accountability only to themselves and the Liberal-left ideology that they adhere to. SEE Below.

    “Gloating liberals may soon regret the power now being wielded by Supreme Court judges.”
    https://www.dailymail.co.uk/debate/article-7516449/Liberals-soon-regret-power-wielded-Supreme-Court-judges-writes-PETER-HITCHENS.html

    “A super-cunning barrister pulled the wool over the eyes of 11 judges – and polluted our public life for years to come.”
    https://www.dailymail.co.uk/news/article-7516507/DAVID-STARKEY-historic-Supreme-Court-judgement.html

    Perhaps when the peoples of this small nation of ours are better educated, we may then be better governed, and at the same time, be thus able to rely on “the rule of Law” and then hold our political rulers accountable.

  2. Thank you Jomo Thomas, you see you can do something right when you put your mind to it and study the matter in hand.

    In other words the Gonsalves dynastical government have damaged our democracy by bringing all the legal challenge’s before our courts and using them as delaying tactics to frustrate the 2015 election matters.

    Of course we must also blame the departed GG Sir Freddy, for swearing in DREGS when there was a major dispute at hand, it was all done in rapid time.

    Jomo you may find yourself in for some criticism from the regime that you serve, the comrade will not be pleased, unless of course you are bidding his calling on this matter. We never know how DREGS devious mind is working so we must always stay suspicious of everything in which he is involved.

  3. Rawlston Pompey says:

    SCANDALOUS COURT DELAYS – JOMO TALKING IT PLAIN

    PREROGATIVE POWER v PARLIAMENTARY SOVEREIGNTY

    Now, given the British ruling, there may have been something fundamentally wrong when;

    (i) …former Guyanese President Bharrat Jagdeo; and

    (ii) …former Grenadian Prime Minister Tillman Thomas [August 30, 2012];

    suspended their Parliaments.

    They had reportedly done so to avoid ‘…Motions of No Confidence.’

    No legal challenges were mounted by the Opposition. They, perhaps, thought that ‘…Prerogative Power’ had superseded the ‘…Parliamentary Sovereignty.’

    That which the learned Counsel has highlighted in the historic ruling by the ‘…Supreme Court of the United Kingdom,’ not only speaks to a systemic judicial problem across the region, but also one that has been institutionalized by ‘…weak, timid or bias Judges.’

    This was first boldly spoken to by Grenadian Prime Minister, Dr. Keith Mitchell. He was quoted as saying;

    ‘…We make policies and run government for 5 years and Judges take 5 years to deliver one judgment’ [….].

    The most telling criticism against the three Appeals Court Judges may have been seen in the London Judicial Committee of the Privy Council (JCPC) Judgment in the case involving a Government Statutory Corporation, ‘…Antigua Public Utilities Authority (APUA)’ and a private entity ‘…Antigua Power Company Limited (APCL).’

    Learned Counsel/author Jomo Thomas may wish to visit;

    ‘…Paragraphs 51 & 52 and 61: UKPC 23: 2013: No. 0063 of 2012].

    He would see how brutal the Law Lords had been over the ‘…inordinate delay by the Eastern Caribbean Supreme Court (ECSC).’

    Even as it is sometimes perceived as frustrating the cause of justice, this is the very Court some had said was the ‘…Bastion of Hope.’ Let it be so seen.

    Those that administrate justice may still learn about judicial expedition of cases from;

    (i) …the UK Supreme Court (most recent);
    (ii) …the JCPC;
    (iii) …the APCL and APUA Case; and of course,
    (iv) …Dr. Keith Mitchell’s statement.’

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