Attorney General of Grenada Appellant v The Grenada Bar Association Respondent [ECSC]

• Jurisdiction: Grenada
• Judge: BYRON, C.J.,DENNIS BYRON,Chief Justice,SATROHAN SINGH,Justice of Appeal,ALBERT REDHEAD
• Judgment Date: 21 February 2000
• Judgment citation (vLex): [2000] ECSC J0221-1
• Court: Court of Appeal (Grenada)
• Docket Number: CIVIL APPEAL NO. 8 OF 1999
• Date: 21 February 2000

[2000] ECSC J0221-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Justice C. M. Dennis Byron Chief Justice

The Hon. Mr. Justice Satrohan Singh Justice of Appeal

The Hon. Mr. Justice Albert Redhead Justice of Appeal

CIVIL APPEAL NO. 8 OF 1999

Between:

Attorney General Of Grenada

Appellant

and

The Grenada Bar Association

Respondent

Appearances :

Mr. Allan Alexander S.C.; Mr. Keith Friday and Mr. Rohan Phillip for the Appellant

Mr. James Bristol; Mr. Reynold Benjamin and Mr. Alban John for the Respondent

Mrs. Celia Edwards for Mr. Malcolm Holdip (out of courtesy to the Court)

BYRON, C.J.

1 This is an appeal against a judgment of Alleyne J. dated 9^th February, 1999 in which he declared that:

• [a] the Office of Director of Public Prosecutions is not subject to termination by effluxion of time;

• [b] the contractual clause appointing Mr. Malcolm Holdip to the office of Director of Public Prosecutions for two years is null, void and of no effect, and;

• [c] Mr. Holdip holds office subject to termination in accordance with the provisions of the Constitution and not otherwise.

The Factual Background

2 By an instrument dated 29^th November, 1996, His Excellency the Governor-General appointed Mr. Malcolm Holdip to the office of Director of Public Prosecutions for a period of two years with effect from 2^nd January 1997, giving effect to a contract into which Mr. Holdip had entered. At the end of the two years the Government refused to renew his contract. These proceedings were instituted by the Grenada Bar Association. Mr. Holdip remained in the post pending the outcome of the case, with the consent of all parties. At the commencement of the appeal, Mrs. Edwards informed the court that Mr. Holdip had voluntarily demitted office after judgment had been given in the court below and had left Grenada presumably for greener pastures.

The Appeal

3 The learned trial Judge had made a comprehensive review of the constitutional and legal principles applicable. Counsel for the appellant generalized the grounds on which he determined to challenge the decision under the broad questions:

• [a] Whether the office of the Director of Public Prosecutions was endowed with tenure by the Constitution.

• [b] Did the agreement of the Director of Public Prosecutions to a term operate as a waiver or estoppel?

• [c] Did the appointment to an unconstitutional term make the entire appointment invalid, or could it be severed?

The Constitutional Provisions

4 The relevant provisions of the Constitution of Grenada are to be found in section 86. They are sub-sections (1), (5), ( 6) and (7).

"86(1) The Director of Public Prosecutions shall be appointed by the Governor-General acting in accordance with the advice of the Judicial and Legal Services Commission.

(5) Subject to the provisions of subsection (7) of this section, the Director of Public Prosecutions shall vacate his office when he attains the prescribed age.

(6) A person holding the office of Director of Public Prosecutions may be removed from office only for inability to exercise the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with the provisions of this section.

(7) The Director of Public Prosecutions may be removed from office by the Governor-General if the question of his removal from office has been referred to a tribunal appointed under subsection (8) of this section and the tribunal has recommended to the Governor-General that he ought to be removed for inability as aforesaid or for misbehaviour".

5 The question raised by this section of the Constitution is in reality one of interpretation: Does the exercise of the power of appointment under section 86(1) of the Constitution create an appointment until the prescribed age or does it allow the Governor-General to appoint for a shorter term by agreement or otherwise? The appellant contends that "appointment" does not stipulate a period of time, and "vacate office" refers simply to the time beyond which the office could not be held. The respondent contends that the combined import of the section is that the appointee holds office until he reaches the prescribed age of 55 years subject only to removal for inability and misbehaviour.

The Principles of Interpretation

6 The principles that govern the interpretation of Constitutions have been considered from time to time. As a suitable starting point I would like to adapt the elegant description of the basic principle of statutory interpretation set out by Sir Vincent Floissac C.J. inSavarin v Williams Dominica Civil Appeal No.3 of 1995 at p.3. The basic principle is that the interpretation of every word or phrase of a constitutional provision is derived from the intention of the framers of the Constitution in regard to the meaning that word or phrase should bear. That intention is an inference drawn from the primary meaning of the word and phrase with such modifications as may be necessary to make it concordant with the context of the Constitution. In this regard the context of the Constitution comprises every other word and phrase used in the Constitution as a whole, all the implications there from and all relevant surrounding circumstances which may properly be used as indications of the intention of the framers of the Constitution. The relevant surrounding circumstances include the antecedents from which underlying principles are drawn. In the well known case of Minister of Home Affairs v Fisher (1973) AER 21 Lord Wilberforce reminds that these antecedents include the European Convention for the protection of Human Rights and Fundamental Freedoms and the United Nations Universal Declaration of Human Rights 1948 which encourage a generous interpretation avoiding 'the austerity of tabulated legalism' to ensure that the full benefit of the constitutional provisions are enjoyed. In Dow v Attorney General [1992] LRC (Const) 623 Aguda J.A. painted his summation at 668:

"In my view the overriding principle must be an adherence to the general picture presented by the Constitution into which each individual provision must fit in order to maintain in essential details the picture of which the framers could have painted had they been faced with the circumstances of today."

7 The nature of a Constitution requires that a broad, generous and purposive approach be adopted to ensure that its interpretation reflects the deeper inspiration and aspiration of the basic concepts on which the Constitution is founded. Respect must be paid to the language that is used and its context, by considering all relevant provisions bearing on the subject for interpretation as a whole, and to the traditions and usages which have given meaning to that language, in order to effect the objective of the Constitution. In order to do this the court must have a sober and objective appraisal of the general canvas upon which the details of the constitutional picture are painted.

The Nature of the Constitution

8 In our jurisdiction there have been several cases which have been decided on the premise that the Constitutions of the Commonwealth Caribbean have adopted the structure of dividing the agencies of government into the three branches or arms of Executive, Legislature and Judiciary. This is based on the doctrine of the separation of powers in which the functions of these branches are entrusted solely to the appropriate branch of government. Thus the Constitutions have been held to have institutionalized a political theory intended to establish a system that provides mutual checks and balances, thereby limiting arbitrariness and abuse of power in Government and promoting the liberty of the individual. Chapter 1 of the Grenada Constitution contains provisions for the protection of fundamental rights and freedoms including the right to the protection of the law. Section 8 of the Constitution mandates that every person charged with a criminal offence "shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law". This provision intrinsically links criminal justice with the concept of anindependent and impartial judiciary. This provision makes it clear that the independence and impartiality of the judiciary is a right granted to and for the benefit of the citizen as an incident of the constitutional guarantee of his right to have a fair trial.

9 Security of tenure is a cornerstone of the constitutional provisions for judicial independence. These provisions prescribe that the appointment of the judicial officer is an appointment until he reaches retirement age subject to a condition permitting his removal for inability or for misbehaviour. This is intended to insulate him from the temptation to cater to the wishes of the political directorate to preserve or prolong his continuation in office.

The Context of the Constitution as a Whole

10 The late distinguished Sir Allen Lewis C.J., in "The Separation of Powers — its relevance for Parliamentary Government in the Caribbean" an essay published in the West Indian Law Journal October 1978 page 4, said:

"Further provision is made for restricting the exercise of arbitrary power by institutionalizing the distinction between the office of the Attorney General, with responsibility for administration of legal affairs of the State, including the preparation of legislation consistent with legal interpretation of the Constitution, and that the Director of Public Prosecutions, a legal officer with the secured tenure and independent status of a judge, with responsibility for the conduct of criminal proceedings."

11 Counsel for the respondent prepared a table, to demonstrate that the theory referred to by Sir Allen, found expression in the Constitution of Grenada. Section 71(6) prescribes that in the exercise of the functions vested in him by the...