THE EDITOR: Madam:I SEE that Mr. Douglas Leys, the Deputy Solicitor-General, has joined Justice Downer in criticising the decision in Neville Lewis v The Attorney General for not addressing the provisions of Section 32(4) of The Constitution which reads:
"Where the Governor-General is directed to exercise any function in accordance with the recommendation or advice of; or with the concurrence of, or after consultation with, or on the representation of, any person or authority, question whether he has so exercised that function should not be enquired into in any Court."
I am glad to see that Mr. Leys has sought to put to rest any suggestion that the decision of the Privy Council was arrived at without being aware of this provision of The Constitution. Regrettably he has sought to join forces with those who have suggested that the Privy Council did not deal with this point. He encourages a public debate on that basis.
Maybe the public debate will be better informed if the public is aware that this second assertion by Mr. Leys is itself as flawed as the falsity of the first assertion which he correctly exposed.
Section 32(4) of The Constitution, although worded in cumbersome legal language, is attempting to express what is a simple principle namely that, if the Governor-General is required to carry out a function in the circumstances set out, no court may enquire into whether he has exercised that function in keeping with the provisions of the constitution or legislation.
These very matters were addressed from the time the appeal was before the Jamaican Court of Appeal. This can be clearly seen from the following passage taken from the judgment of the President of the Court of Appeal, Mr. Justice Forte, which reads as follows.
"Although decisions of the Governor-General in the exercise of the Prerogative of Mercy are not justifiable, nevertheless the Courts can in accordance with the procedural fairness guaranteed by the Constitution, require the Governor-General to consider matters that by virtue of the law and the Constitution, he is mandated to consider in coming to his decision."
That particular passage is cited not once but twice by the Privy Council in giving its decision in the Neville Lewis case. In any event the provisions of Section 32(4) of The Constitution are really limited to prohibiting any enquiry as to whether the Governor-General has exercised the function in keeping with the recommendation, advice or in concurrence with or after consultation with the particular persons or bodies referred to. At no time were any of the arguments in the Neville Lewis case directed at questioning whether the Governor-General had acted in keeping with those persons' advice.
The real issue was whether the procedure leading up to the exercise of the prerogative was lawful or not.
Here is a passage from the decision of the Privy Council. It seems to have escaped the attention of those who have suggested that the Privy Council was not made aware of the issue here involved.
"Is the fact that an exercise of the prerogative is involved per se a conclusive reason for excluding judicial review? Plainly not. Although in some areas the exercise of the prerogative may be beyond review, such as treaty-making and declaring war, there are many areas in which the exercise of the prerogative is subject to judicial review. Some are a long way from the present case, but Reg. v Secretary of State for the Home Department, Ex Parte Bentley (1994) Q.B. 346, though it does not raise the same issue as in the present case, is an example of the questioning of the exercise of the prerogative in an area which is not so far distant. As the Divisional Court said at page 363:-
"If for example, it was clear that the Home Secretary had refused to pardon someone solely on the grounds of their sex, race or religion, the courts would be expected to interfere and, in our judgment, would be entitled to do so."
See also Attorney-General of Trinidad and Tobago v Phillip (1995) 1 A.C. 396 and the discussion in Burt v. Governor-General (1992) 3 N.Z.L.R. 672 per Cooke P. at pages 678-681; Lauriano v. Attorney-General of Belize (unreported), 20th September 1995 (Supreme Court and Court of Appeal of Belize and the Court of Appeal of Guyana.
I am, etc.,
RICHARD SMALL
E-mail: rsmall@cwjamaica.com
Kingston 10
