In the interest of good governance...


Tuesday, August 21, 2018

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The recent revelation of the manner in which the former Minister of National Security the Honourable Robert Montaque sought to reinstate a firearm holder's licence after there was a revocation by the Review Board of the Firearm Lincensing Authority (FLA) has reignited debate on the issue of governance in Jamaica.

There are those who will argue that the minister acted within the scope of his authority by giving such directions to the Review Board as he thought fit as per Section 37(a)(3) of the Firearms Act. Indeed, the extent to which he went to establish a committee to assist in his decision may be seen by some as an innovative move on his part to seek the broadest levels of consultation and unanimity on the matter before ultimately exercising his prerogative which, in law, he has a right so to do.

On the contrary, there are others who are of the view that the minister, by his conduct, acted beyond the scope of his authority as the law simply does not allow for any such committee to be established by him in the exercise of his prerogative.

Questions will naturally arise as to the criteria by which membership to such a committee was arrived at and whether the membership had the necessary security clearance to deal with the issues at hand.

The competing arguments as to whether the minister acted beyond the scope of his authority have not surprisingly taken on a political flavour where the facts have been distorted. For example, to express alarm that the minister reinstated 29 firearm licences after they were revoked by the Review Board is to ignore the simple fact that, in law the minister has such a prerogative.

The real debate in this matter should not be overtaken by cheap political points which ultimately do not add any value to the discussion. What should take centre stage is whether the FLA can challenge the manner in which the minister went about exercising his prerogative which, in my humble view, was erroneous.

It is the FLA that would be the immediate body that is aggrieved by the minister's decision. However, the FLA being a board appointed by the minister himself, would not be the proper body to mount such a challenge in the way of any judicial review. In this regard, the question must be asked whether any ordinary citizen of this land could initiate judicial review in respect of the manner in which the minister exercised his authority to reinstate the licence in question.

Whereas, Part 56(2) of our Civil Procedure Rules - 2002 allows for judicial review in such situations, it is confined to only such persons either “adversely affected” or those having a “sufficient interest in the subject matter” of the review.

In essence, for an ordinary citizen of this land to be qualified to challenge a minister's decision-making process on the basis of it being flawed, such a citizen would have to establish that he or she has locus standi in the subject matter. The law, as it stands, appears not to allow such a citizen without proof of he/she being directly and adversely affected by a decision of a minister to bring a case for judicial review.

Within this context, it may well suit us to examine whether we would wish to adopt the Barbadian legislative model which allows for any person to apply for judicial review once the court is satisfied that such a person's application for such a review is “justifiable in the public interest in the circumstances of the case”.

This is embodied in the Barbados Administrative Justice Act. This Act came into effect in 1983 and the purpose for it was to provide for the improvement of administrative justice in Barbados and for related matters. It makes direct reference to the provisions for judicial review where ministers, public officials, tribunals, board, committees or other authorities of Government commit acts or omissions in the exercise of their authority to be challenged where it is being alleged that there is a failing to abide by the law or proper procedures.

By only having as its criterion the need of any person to show that a judicial review is justifiable in the public's interest, this Act is far less restrictive than what obtains in our jurisdiction.

In the interest of good governance therefore, it may be a worthy exercise to adopt the Administrative Justice Act in Jamaica which could readily be utilised by any ordinary citizen in Kingston wishing to have judicial review of the decision of a public agency affecting coastal erosion in Negril for instance.

Such a citizen would not have to be part of any environmental body or be directly affected by that which is complained of. There would be no need to establish locus standi.

Quite apart from an adoption of the Administrative Justice Act for our jurisdiction, an equally attractive idea may be the complete abandonment of the concept of ministers of Government having the authority to override the decisions of specific tribunals whose members are of a high reputable standard and are supported by competent technical experts.

It can be argued that the power being reserved to a minister to override decisions of such tribunals represents a colonial hangover where the locals could not be trusted to make the right decisions on important matters. It may well now be a case in the reverse, that is, the minister not being worthy of trust. Consequently, final decisions in respect of appeals or review processes should be the propagative of the relevant tribunals themselves or the Courts.

Two examples of this readily come to mind: the Road Traffic Act and the Spirits License Act. With the former, by virtue of Section 72(2) the decision of the Traffic Appeal Tribunal is regarded as final. With respect to the latter, there is a direct appeal to the Parish Court by virtue of Section 71. It is not inconceivable to have a framework within which a minister's input cannot be entertained as it is not being advocated that ministers, having been elected by the people, should be without any power to act. Certainly as it relates to the courts in the way of appeal, a minister, either by himself or through his agents, could apply to be heard in the process.

In all the circumstances, it would appear that the time has come for our Independence not just to be recognised as a sovereign state beyond our shores but also within our own internal governmental structure. For things to remain as they are, is to court yet another ministerial blunder as there remain numerous legislation in which the ultimate decision of the appeal process rest with ministers.

Peter Champagnie is an attorney-at-law

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