REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

H.C.A. No. 477 of 2004

IN THE MATTER OF THE JUDICIAL REVIEW ACT, 2000

AND

IN THE MATTER OF ORDER 53 OF THE RULES
OF THE SUPREME COURT, 1975

AND

IN THE MATTER OF AN APPLICATION BY

THE TRINIDAD AND TOBAGO CIVIL RIGHTS 
ASSOCIATION

FOR LEAVE TO APPLY FOR JUDICIAL REVIEW OF

1.	THE DECISION AND/OR ACTION OR THE CABINET TO CAUSE THE HONOURABLE MR. JUSTICE ZAINOOL HOSEIN ("THE CHAIRMAN") NOT TO BE RE-APPOINTED AS THE CHAIRMAN OF THE ENVIRONMENTAL COMMISSION ESTABLISHED BY THE ENVIRONMENTAL MANAGEMENT ACT, NO. 3 OF 2000 ("THE COMMISSION") AND/OR THE DECISION AND/OR ACTION OF THE CABINET TO FRUSTRATE THE LEGITIMATE EXPECTATION OF THE CHAIRIMAN THAT HE WOULD BE RE-APPOINTED AS THE CHAIRMAN OF THE COMMISSION.

2.	THE DECISION AND/OR ACTION OF THE CABINET TO SELECT FOR APPOINTMENT AND TO CAUSE TO BE APPOINTED MS. SANDRA PAUL AS THE CHAIRMAN OF THE COMMISSION AND MRS. INDIRA MAHARAJ-RAMREKERSINGH AS THE DEPUTY CHAIRMAN OF THE COMMISSION.

BETWEEN

THE TRINIDAD AND TOBAGO CIVIL RIGHTS
ASSOCIATION
									Applicant
AND

PATRICK AUGUSTUS MERVYN MANNING
Prime Minister and Head of Cabinet
(for and on behalf of himself and all other
members of Cabinet)
								Putative Respondent

Before the Honourable Madam Justice Dean-Armorer
Appearances:
Mr. Ramesh Lawrence Maharaj S.C. for the Applicant
Mr. Christopher-Hamel-Smith S.C. for the Putative Respondent

JUDGMENT
Introduction
	This is an application for judicial review in which the Applicant, a public spirited organisation obtained leave under s. 5 (6) of the Judicial Review Act, to seek relief on behalf of the residents of Tortuga.
	The residents of Tortuga claim that they are distressed by the dumping of garbage at the Forres Park Dump near to their homes.  It is their desire to approach the Environmental Management Authority and possibly the Environmental Commission, (“the Commission”).  Having heard, however that the first Chairman, Justice Hosein had not been re-appointed, they fear that the Commission, in the manner in which it is constituted at present, will not be able to give them a fair and impartial hearing.
	This application canvasses issues of the doctrine of the separation of powers and the power of Parliament to alter the method by which a judicial officer could be appointed and removed.  The Applicant claims as well that the residents of Tortuga are aggrieved by the alleged breach of natural justice, irrationality and bad faith, meted out to the rejected former Chairman.
	This case also canvasses issues of locus standi in the context of the Judicial Review Act.
	The facts relating to this application for Judicial Review occur in three (3) strata.  At the most superficial, one encounters the Applicant, whose role is to file the application under s. 5(6) on behalf of the residents of Tortuga. At the second level are the persons who are truly aggrieved by the existence of a garbage dump near to their homes, but whose grievance, for the purpose of this application, is that they fear that they will be denied a fair and impartial hearing by the Commission.
	At the deepest level, are the facts concerning Justice Hosein who although he is the alleged victim of alleged breaches of natural justice and maladministration, has made no complaint.

Brief History of Proceedings : 

1.	The Applicant filed its Statement under O. 53 r.3(2) (a), RSC on 20th February,2004.
2.	On the 11th March,2004, the Applicant sought the Court’s leave to amend the Statement and sought leave in terms of the Amended Statement. The complete text of the Amended Statement is set out at the Appendix of this judgment.
3.	The Applicant filed its Notice of Motion seeking judicial review pursuant to leave granted by the Honourable Justice Rajnauth-Lee.
4.	In July 2004, directions were given for the filing of Skeleton Arguments and this matter was heard on the 8th, 9th, 10th, 18th and 19th November, 2004.

Facts

1.	The facts of this matter are not in dispute.  Several affidavits have been filed on behalf of the Applicant . They are : 
•	Affidavit of  Ms Dora Young Hoo filed on the 20th February, 2004. The purpose of this affidavit was to verify the contents of the statement;
•	The supplemental affidavit sworn by Dora Young Hoo on 27th February, 2004 and filed herein on the 8th March, 2004.  The purpose of this affidavit was to correct a minor typographical error in the main affidavit; 
•	The further supplemental affidavit sworn by Dora Young Hoo on 10th March, 2004.  The sole purpose of this affidavit was to correct another typographical error, which appeared in the supplemental affidavit.
•	An Affidavit was sworn by retired Justice Hosein and filed in these proceedings on the 11th March, 2004.  The purpose of his Affidavit was to verify the facts alleged in the Amended Statement, which had been filed under 0.53 r. 3 (r.) (2)(a).
2.	One affidavit was filed on behalf of the Respondent :
•	This affidavit was sworn by Rennie Dumas, who at that time held the portfolio, of Minister of Public Utilities and the Environment.
3.	The only allegation ,which emerges from the affidavits about which there had been a query was the date of birth of retired Justice Hosein.  This was subsequently agreed by Senior Counsel for the Applicant and for the Respondent. The date of birth of Justice Hosein has been placed in 1932. 
4.	The Trinidad And Tobago Civil Rights Association, the Applicant herein, was incorporated in March, 2003 as a non-profit organization. Prior to and since its incorporation, the Applicant was involved in "…...social humanitarian work to promote the economic and social rights of the citizens of Trinidad and Tobago………." 
5.	It has not been disputed that the Applicant had taken up the causes of "casual workers, the landless, the homeless, flood victims, vendors, farmers and the handicapped ."
6.	By a letter dated 19th February, 2004, thirty (30) villagers who reside near to Forres Park Garbage Dump wrote to the Applicant, indicating their desire to approach the Environmental Management Authority, in respect of the garbage dump. 
7.	They indicate in their letter that they became aware that the Chairman of the Commission had not been re-appointed and express their fear that the present Commission "………may have been unlawfully appointed.”  They attested to their "social and economic disadvantage……."
8.	It is on behalf of the thirty (30) villagers that the Applicant seeks judicial review pursuant to s. 5(6) of the Judicial Review Act.
9.	It is accepted in this application that former Justice of Appeal Zainool Hosein had been appointed chairman of the Environmental Commission "the Commission" for a term of three (3) years commencing 30th October, 2000 and that those appointments had been made by His Excellency the President on the advice of Cabinet, which had accepted the recommendations of an independent Cabinet appointed Committee. 
10.	A new Central Government assumed office in 2001.  The new Central Government was and continues to be led by the Respondent, herein, the Honourable Patrick Manning, Prime Minister .
11.	Shortly after the Prime Minister’s accession to office,  Justice Hosein, in his capacity as Chairman of the Commission wrote to the Prime Minister in order to highlight the anomalous situation created by placing the Environmental Commission under the aegis of the Ministry of National Security.
12.	Justice Hosein made a second observation concerning the independence of the Commission to Minister Dumas during an official visit by the Minister to the Commission in November, 2002. Justice Hosein on this occasion pointed out the importance of observing and respecting the independence of the Judiciary and judicial tribunals.
13.	Justice Hosein, who was at that time the Chairman of the Commission, had prepared a list of items to be discussed during the Minister’s official visit.  The issues of Judicial Independence and the Independence of the Commission in particular were raised at paragraph 10 :
"It is of importance that the independence of the Judiciary be supported in every way, financial and otherwise.  The Constitution provides for the independence of judicial tribunals and this must, always be respected and observed particularly with respect to Courts with an appellate as well as inherent jurisdiction such as the Environmental Commission……." 
14.	By letter dated the 16th October, 2003, Justice Hosein, as the Chairman wrote on behalf of the other members of the Commission and on his own behalf to the Minister of Public Utilities and the Environment in order to alert the Minister of the imminent completion of their respective terms of office, their eligibility for re-appointment and their willingness and their desire to serve for another term.
15.	The Permanent Secretary, Ministry of Public Utilities and the Environment acknowledged receipt of the Chairman's letter.
16.	The Applicant alleges, without contradiction, that the posts were not advertised, no independent tribunal was commissioned by Cabinet, Justice Hosein was also given no opportunity by the Cabinet to make representations as to why he should not be re-appointed.  Justice Hosein also received no notification that any other person was being considered for appointment to the post of Chairman.
17.	The terms of appointment of the Chairman and other members of the Commission expired at midnight on the 29th October, 2003, without the appointment of any Commission.
18.	By letter dated the 17th November, 2003 the Minister of Public Utilities thanked Justice Hosein for his service as Chairman.
19.	In or around January, 2004 His Excellency, the President appointed Ms. Sandra Paul to the Chairmanship of the Commission.  Justice Hosein was not re-appointed.
20.	Mr. Dumas confirmed the accuracy of appointments alleged in the Amended Statement.  He deposed further that all appointments, with the exception of the appointment of the Deputy Chairman, were made pursuant a Cabinet decision on the recommendation which he had given as Minister of Public Utilities.
21.	At paragraph 24 of his Affidavit, Mr. Dumas supplied his reasons for recommending Ms. Sandra Paul for the post of Chairman, over and above Justice Hosein.  It is useful to set out the exact words of Mr. Dumas:
"Insofar as the appointment of the Chairman was concerned, my recommendation to Cabinet was that Ms. Paul be appointed to that position.  I recommended Ms. Paul for appointment as the Chairman as I was satisfied that she had the necessary qualifications and experience to serve at this level.  In particular, I gave consideration to the fact that she had several years' experience as a Magistrate and as a Judge of the Industrial Court: that she had several years' experience serving at the level of Deputy Chairman of the Environmental Commission; that she had capably acted as Chairman of the Environmental Commission when the Chairman was out of the Jurisdiction; that she had pursued (and was continuing to pursue) further training and qualifications in environmental law; and that she also had training and experience in alternative dispute resolution.  In these circumstances, I made my recommendation that Ms. Paul be appointed as Chairman for a further term.  In doing so, I took into account that although the former Chairman had greater judicial experience, he was 71 years old at that time.  Particularly since environmental law and regulation is an emerging area, and the Environmental Commission a relatively new institution, I considered that it would be advantageous to appoint a Chairman who would more likely be available to guide the development of the Commission and its jurisprudence over the longer term.”
Submissions

1.	Senior Counsel for both parties to the Application filed skeletal submissions, which were supplemented by oral submissions.
2.	In their skeletal submissions, Attorneys for the Applicant drew the Court's attention to the section pursuant to which the Application was instituted.
3.	Having brought this application, as a public-spirited body, the applicant invoked s. 5(6) of the Judicial Review Act on behalf of persons who, on account of their poverty or socially or economically disadvantaged position, are unable to file the Application.  Such persons, clearly indicated in the Statement and Affidavits, are the villagers of Tortuga Village, who being adversely affected by the Forres Park Garbage Dump, are potential litigants before the Commission.
4.	Learned Attorneys for the Applicant have identified as the main issue in this case the question of whether the exercise of power by Cabinet in not re-appointing the Chairman of the Commission is lawful.
5.	They contend that the manner of the exercise of Cabinet's power in failing to re-appoint Justice Hosein was unlawful and in breach of the doctrine of separation of powers.
6.	Learned Attorneys contend that both the line Minister as well as Cabinet were required to exercise their power so as to cause the appointed tribunal to be considered by the public as fair, impartial and independent of the executive.
7.	In their skeletal submissions learned Attorneys for the applicant re-iterate that the Commission is a Superior Court of Record with an inherent jurisdiction and with power to make binding orders and to punish for contempt.
8.	By virtue thereof, the Commission has all the characteristics of a High Court and must be regarded as "high" in the spectrum of judicial bodies in relation to the Supreme Court of Judicature and should be endowed with the fullest protection from political interference. 
9.	Learned Counsel cited the case of Findlay v U.K., (1997) 24 E.H. RR 221 a decision of the European Court of Human Rights and in particular referred to the test, adumbrated therein as to whether a tribunal could be as regarded as independent.
10.	The factors identified in the Findlay test are:
(i)	manner of appointment of its members;
(ii)	their terms of office;
(iii)	guarantees against outside pressure
(iv)	the appearance of independence …
11.	Learned Counsel contends that in the absence of a specific statutory procedure, Cabinet had a duty to follow previously established procedure or to establish procedure, which would insulate members of the tribunal from political interference.
12.	Mr. Maharaj, learned Senior Counsel for the Applicant developed the arguments which had been made in the skeletal submissions.
13.	Learned Senior Counsel cited the epic decision of Lord Diplock in Hinds v R [1977] A.C. 195 in support of his submissions on the separation of powers.
14.	Learned Counsel described as a “complete misconception” of his case any suggestion that the executive has no input whatsoever in selecting members of the Commission, but submitted that the following principles were applicable :
(i)	the Court should consider whether the tribunal has the appearance of impartiality or independence.
(ii)	the Court should consider whether there is risk that the well-informed observer would form the perception that the tribunal would not be independent of the Executive.
(iii)	the Court should consider whether appointees would  be influenced by their "hopes and fears."
Learned Senior Counsel emphasized that what was important was the public perception by a reasonable person.
15.	The test, which learned Senior Counsel commended to the Court for determining whether the tribunal would be biased was the Gough test.  See R v Gough [1993] A.C. 646
16.	Learned Senior Counsel adumbrated two principles for the guidance of the Court:
•	The Court should consider whether that which is presented has the appearance of a tribunal which is impartial or independent.
•	The Court should consider whether the informed observer would have the perception that the tribunal is not independent of the Executive.
17.	Learned Senior Counsel, by reference to the case of Findlay, emphasized that the Court should consider the manner of appointment of the tribunal.
18.	Learned Senior Counsel alluded to the machinery, which had been put in place for the appointment of the first Commission and observed that no explanation had been given by Cabinet for its failure to follow the previously used machinery.
19.	Learned Senior Counsel cited Hinds v R, [1977] A.C. 195 and submitted that, regardless of the nomenclature, the work of the Commission continued to be the exercise of judicial power.
20.	Learned Senior Counsel admitted that the Commission was not part of the Supreme Court of Judicature but submitted the Commission must be regarded as a Court in the higher spectrum of tribunals.
21.	Citing the case of D.P.P. v Mollison P.C. #88 of 2001, Learned Senior Counsel submitted that the doctrine of the separation of powers cannot be altered.
22.	Learned Senior Counsel for the Applicant, in answer to the Respondent's argument that the Act had been passed by a special majority, observed that the Environmental Management Act, did not alter rights enshrined by s. 5(2)(e) of the Constitution and submitted that the exercise of power would be illegal if it collided with the rights guaranteed by s. 5(2) (e) of the Constitution.
23.	Learned Senior Counsel emphasized that the exercise of public power should not collide with either the Constitution or with the principles of public law.
24.	Learned Senior Counsel addressed the Court on the significance Privy Council decision of Roodal v A.G. P.C. #18 of 2003 and argued that the effect of Roodal is not to preclude the Court from declaring an existing law unconstitutional if it was in conflict with a basic feature of the Constitution.
25.	Applying his submission to the instant case, Learned Senior Counsel urged that all the facts and circumstances of this case gave the appearance that the Commission lacked independence and that an objective assessment would lead to the real danger that a tribunal was not independent, impartial or fair.
26.	On the question of locus standi, learned Senior Counsel for the Applicant submitted that there were three (3) ways under the Judicial Review Act to approach the Court:
•	where the applicant under s.5(2)(a) was aggrieved personally.
•	where the Applicant under s.5(6) filed on behalf of persons who cannot file.
•	The section 7 (7) type application, which by the submission of learned Senior Counsel was irrelevant to this matter.
27.	Learned Senior Counsel for the Applicant cited and relied on the English case of R v Secretary of State for Foreign and Commonwealth Affairs Ex p. World Movement Ltd. [1995] 1 W.R.L. 386 and submitted that the Applicant company, if it has sincere concerns can apply for Judicial Review.  Learned Senior Counsel for the Applicant referred to p. 394 of the report of R v Secretary of State for Foreign and Commonwealth Affairs Ex p. World Movement Ltd. and submitted that as long as the residents on whose behalf the Application is sought can establish sufficient interest, the Court can investigate the complaint.
28.	Learned Senior Counsel for the Applicant argued that the whole structure of the Judicial Review Act was designed to provide the widest possible access to the Court. Learned Senior Counsel submitted further that the Applicant was entitled to bring the Application and the Court had the jurisdiction to determine the issue.
29.	Learned Senior Counsel for the Applicant conceded that his case on the doctrine of legitimate expectation was not strong but argued that there had been a breach of the legitimate expectation of Justice Hosein that he would be re-appointed.
Learned Senior Counsel cited the usual well-known authorities.
30.	In support of the ground of a breach of natural justice Learned Senior Counsel referred to the case of Barl Naraynsingh v C.O.P. and argued that Minister Dumas did not afford Justice Hosein an opportunity to comment on the reason for appointing a different Chairman.
31.	Learned Senior Counsel for the Applicant submitted that the implication of Cabinet's replacing the Chairman is an implication of misconduct.
32.	Learned Senior Counsel argued that it was unfair for the Minister to make an assessment based on his personal knowledge and that it was open to the executive to get advice either from an individual or a committee which had experience in judicial work and judicial assessment.
33.	Learned Senior Counsel referred extensively to the treatise on judicial review by de Smith, Woolf  and Jowell from pages 404.
34.	Learned Senior Counsel contended that the executive arm of government has failed to treat the residents of Tortuga fairly in failing to observe the rules of natural justice.
35.	Learned Senior Counsel contended that this was a case of abuse of power not conducive to public good.
36.	In addressing on the ground of irrationality, Learned Senior counsel referred to the text by Fordham in support of his submission that an irrational decision is one which does not "add up."

Submissions for the Respondent

1.	The Respondent filed skeletal submissions on the 4th November, 2004.
2.	The Respondent’s first and main submission questions the locus standi, of the Applicant.  Learned Senior Counsel for the Respondent contends that the proper Applicant in this application is either Justice Hosein himself or a party who is granted leave under s. 5(6) of the Judicial Review Act on the basis that Justice Hosein is unable to apply for Judicial Review on account of “….poverty; disability or socially or economically disadvantaged position.”
3.	Alternatively, Learned Senior Counsel contended that his application could have been brought under s.7 of the Judicial Review Act, with the Court’s leave.
4.	Learned Senior Counsel argued in the alternative that even if the Applicant was clothed with the requisite locus standi, the Applicant’s case revealed no ground for Judicial Review.
5.	The Respondent accepts that the Applicant has locus standi in respect of the ground that Cabinet’s decision is contrary to the doctrine of the separation of powers.
6.	In respect of this latter ground however the contention of the Respondent is that the Environmental Management Act was passed with the requisite two-thirds (2/3rds) majority and is therefore valid, notwithstanding any inconsistency with the Constitution.  In support of his submission on the breach of the doctrine of separation of powers, learned Senior Counsel referred extensively to the Constitution and the statutory provisions which provide for the appointment of Judges of the Supreme Court and appointments to the Environmental Commission respectively.
7.	Learned Senior Counsel for the Respondent referred to the words of Lord Diplock in the Privy Council decision in A.G. v Mc Leod in support of his submission that the Constitution, though Supreme, was not immutable:
“Although Supreme the Constitution is not immutable…….”
“……constitutions of the Westminister model, of which the Constitution of the Republic of Trinidad and Tobago is an example, provide for their future alteration by the people acting through their representatives in the parliament of the state…….”
8.	Learned Senior Counsel cited time honoured decision of the Privy Council in the Bribery Commissioner v Ranasingh [1965] AC 172 and drew the Court’s attention to the aspects of the Environmental Management Act which indicate the intention of Parliament to alter the Constitution in passing the Environmental Management Act. Accordingly, Learned Senior Counsel contended that it was the duty of the Court to give effect to the provisions of the Environmental Act, as passed by Parliament.
9.	Learned Senior Counsel amplified his skeletal submissions by oral arguments. He reiterated his written clarification of the categories of Applicants who enjoy standing under the Judicial Review Act, the first being the Applicant with a personal interest.  The second category, learned Senior Counsel referred to as the “Good Samaritan” category, where the application for Judicial Review was brought on behalf of someone, who suffered an economic disadvantage.
10.	The third category, Learned Senior Counsel referred to as the “public interest” category.
11.	Learned Senior Counsel cited the case of Durayappah v Fernando [1967] 2 AC and argued that a legitimate expectation is personal to the holder of the expectation.
12.	Learned Senior Counsel argued that his submissions in respect of legitimate expectation were also applicable to the grounds of inequality of treatment, bad faith, bias and the ground that Cabinet had been guided in the decision-making process by irrelevant considerations.
13.	In respect of the ground that Cabinet had breached the doctrine of separation of powers, learned Senior Counsel for the Respondent summarized his arguments by saying that the Applicant could not attack the manner of the exercise of decision-making power, where the manner of the exercise of the power was in accordance with statute.
14.	Learned Senior Counsel argued further that the contention of the Applicant is dangerous and does not even meet its own standards for a constitutional solution.
15.	Learned Senior Counsel alluded to the suggested solution of placing the duty of selection into the hands of a Cabinet-appointed committee and argued that this solution did not solve the practical complaint, in that ultimately Cabinet was still left to decide on the appointment of the Committee.  Learned Senior Counsel argued further that the proposed solution was effectively “…an invitation to read into a statute something which was not there……”
16.	As his 4th argument against this ground, Learned Senior Counsel cited the Privy Council decision in Charles Matthew v A.G. P.C. #12 of 2004 and submitted that there was no “supra-constitutional principle” of separation of powers. Learned Senior Counsel cited as well the case of Boyce and Joseph v A.G. of Barbados and Mollison v A.G. of Jamaica, P.C. 18 of 2003.
17.	Referring to Hinds v R, learned Senior Counsel argued that Lord Diplock acknowledged the possibility of altering the Constitution, while acknowledging that it was not possible to “hive off” the jurisdiction of the High Court to some other Court, because it conflicts with the Constitution.
18.	In their skeletal submission, learned Senior Counsel quoted the Judicial Review Act extensively and cited the case of R. v Home Secretary Exp. Ruddock [1987] 1 WLR 1482 in support of his submission that the ground of legitimate expectation could be pleaded only by Justice Hosein himself.
19.	In the alternative, Learned Senior Counsel cited (1) Halsbury Laws of England (4th ed.) para 81 to reiterate the formula of Lord Fraser in CCSU v Minister for the Civil Service [1984] 3 ALL E.R. 935 a legitimate expectation is conceived by the existence of a regular practice or an express promise to the holder of the legitimate expectation.  Learned Senior Counsel noted the absence in this case of even an allegation that a promise had been made to Justice Hosein that he would be re-appointed.  Learned Senior Counsel contended further that no promise could be implied from any regular practice.
20.	In response to the ground of a breach of natural justice, Learned Senior Counsel for the Respondent has raised the locus standi argument and argued that the Applicant is not entitled to seek redress, where Justice Hosein himself has made no complaint.  Once again Learned Senior Counsel cited and relied on Durayappah v Fernando [1967] 2 A.C.337 at 352.
21.	Alternatively, learned Senior Counsel for the Respondent argues that Justice Hosein was entitled to be treated "in a fair manner;" as prescribed by s. 20 of the Judicial Review Act rather than "……in accordance with the principles of natural justice….”  In making this submission Learned Senior Counsel relies on the words of Lord Diplock in CCSU v Minister for Civil Service (supra):
"…..what procedure will satisfy the public law requirement of procedural propriety depends on the subject matter of the decision, the executive functions of the decision maker……and the particular circumstance is which the decision came to be made."
22.	Learned Senior Counsel, in his oral arguments, alluded to the case of Mc Innis vs Onslow-Fane [1978] 3 ALL E.R. 211 and submitted that the instant case fell between the “application” and the “expectation” categories.
23.	Learned Senior Counsel for the Respondent asserted that there could be no expectation having regard to the structure of the Act. Learned Senior Counsel for the Respondent submitted that the duty on Cabinet was one of fairness and that meant acting without bias.
24.	In answer to the Applicant’s allegations of bad faith, Learned Senior Counsel for the Respondent repeated these arguments on the Applicant's lack of locus standi.
25.	In the alternative, and contending that the Applicant has failed to show bad faith Learned Senior Counsel cited Rees v Crane [1994] 2 A.C. 173 and P.S.C. v Hayde C.A. #12/99. Learned Senior Counsel submitted that bad faith will not be lightly inferred, particularly where the decision is being made by a committee.
26.	Learned Senior Counsel repeated earlier submissions on locus standi.  He referred as well to the Creednz Principle formulated from Cook J in Creednz v Governor General [1981] N.Z.L.R. 172 and submitted that in the absence of statutory specifications it is for the decision-maker and not the Court to decide which considerations are relevant.
27.	Learned Senior Counsel for the Respondent also cited and relied on the words of Justice Laws in R v Secretary of State, Exp. Richmond on Thames L.B.C. [1994] 1 W.L.R. 74.
28.	Learned Senior Counsel submitted further that by abandoning some of his grounds at ((f) (g) (h) (i) (j) (k)) of the Amended statement. Learned Senior Counsel, Mr. Maharaj had impliedly abandoned other related relief that is to say: (b) (c) (d) and (e).

LAW :

Statutory Provisions :

The Constitution 
•	Section 4 (b) enshrines the right of the individual to equality before the law and to the protection of the law 
•	Section5(2) (e), read with s.4 (a) and (b), enshrines the right of the individual to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations 
•	Section 54 (2) empowers Parliament to alter specified sections of the Constitution, including sections 101 to 108, by an Act the Bill for which had been passed with not less than a 2/3rd majority. 
•	Sections 104 to 107 of the Constitution provide for the appointment of Judges by the President acting in accordance with the advice of the Judicial and Legal Service Commission .
•	Section 136 provides for the tenure of special office holders including Judges  and Section 137 prescribes the procedure for the removal of Judges. 
•	By s. 136(1) a Judge is required to vacate his office at the age of 65 .
•	By s. 137 (1), a Judge  may  be removed from office only for inability to perform his functions or for misbehavior.  Removal is only permitted by a special procedure which involves referral to the President by the Judicial and Legal Service Commission to have the Judge investigated , investigation by a Tribunal and referral to the Judicial Committee.
Environmental Management Act, 2000 

•	In the preamble to this Act, Parliament has stated its intention to alter the Constitution : And whereas it is intended by this Act to alter the Constitution…”
•	Section 1(2):  “This Act shall be construed as altering ss. 104 to 107 ,136 and 137 of the Constitution.”
•	The end of the Act bears the certificate of both the Clerk of the House of Representatives and of the Clerk of the Senate to the effect that the Act had been passed with the requisite two-thirds majority. 
•	Section 81: The provisions of ss. 81 to 83 (1) are set out hereunder:
Establishment and Jurisdiction of the Environmental Commission
(1)	A tribunal to be known as the Environmental Commission is hereby established for the purpose of exercising the jurisdiction conferred upon it by this act or by any other written law.
(2)	The Commission shall consist of a Chairman and such other members, including a Deputy Chairman, as may be appointed under or in pursuance of section 82.
(3)	The Commission shall be a superior court of record and have an official seal which shall be judicially noticed, and shall have in addition to the jurisdiction and powers conferred on it by this Act, all powers inherent in such a court.
(4)	The Commission shall have the power to enforce its own orders and judgments, and the same power to punish contempt as the High Court of Justice.

•	s. 82 Appointment of the Chairman .
(1)	The Commission shall be comprised of a full-time Chairman, and five other members including a Deputy Chairman and each of whom may be appointed to serve in a full-time, part-time or periodic capacity as may be required to fulfil the objects of this Act.
•	The Chairman and Deputy Chairman of the Commission shall each be an attorney-at-law of not less than ten years standing, and shall be appointed by the President.
•	………………………………………………….
(2)	All members of the Commission shall hold office under such requirements and conditions of service and for such term, not less that three years, as may be determined by the President and set forth in the terms of reference at the time of their appointment and shall be eligible for reappointment.
(3)	Any member of the Commission may, at any time by notice in writing to the President, resign his office.
(4)	The President may remove from office any member of the Commission for inability, misbehaviour or on the ground of any employment or interest  which is incompatible with the functions the Commission.
s.  83.(1)	There shall be paid to each member of the Commission, ………such salary or remuneration and such allowances as may be prescribed by Order of the President and such salary or remuneration and allowances shall be a charge on the Consolidated Fund
	…………………………………………………………
(2)	The salary, remuneration, allowances and the other conditions of service of the Chairman, Deputy Chairman and of any other member of the Commission shall not be altered to his disadvantage after being appointed to the Commission or during his tenure of office.

Judicial Review Act #60 of 2000
The provisions of s. 5 (1), (2) and (3) and 6 (1), (2) and (7) are set out hereunder

General Provisions (my classification) 
5.	(1)	An application for judicial review of a decision of an inferior court, tribunal, public body, public authority or a person acting in the exercise of a public duty or function in accordance with any law shall be made to the Court in accordance with this Act and in such manner as may be prescribed by rules of court.
(2)	The Court may, on an application for judicial review, grant relief in accordance with this Act - 
(a)	to a person whose interests are adversely affected by a decision; or
(b)	to a person or a group of persons if the Court is satisfied that the application is justifiable in the public interest in the circumstances of the case.
(3)	The grounds upon which the Court may grant relief to a person who filed an application for judicial review include the following:
(a)	that the decision was in any way authorized or contrary to law;
(b)	excess of jurisdiction;
(c)	failure to satisfy or observe conditions or procedures required by law;
(d)	breach of the principles of natural justice;
(e)	unreasonable, irregular or improper exercise of discretion;
(f)	abuse of power;
(g)	fraud, bad faith, improper purpose or irrelevant consideration;
(h)	acting on instructions from authorized person;
(i)	conflict with the policy of an Act;
(j)	error of law, whether or not apparent on the face of the record;
(k)	absence of evidence on which a finding or assumption of fact could reasonably be based;
(l)	breach of or omission to perform a duty;
(m)	deprivation of a legitimate expectation;
(n)	a defect in form or a technical irregularity resulting in a substantial wrong or miscarriage or justice; or
(o)	an exercise of a power in a manner that is so unreasonable that no reasonable person could have so exercised the power.

Sections on Locus Standi
 5 (6)	Where a person or group of persons aggrieved or injured by reason of any ground referred to in paragraph (a) to (o) of subsection (3), is unable to file an application for judicial review under this Act on account of poverty, disability, or socially or economically disadvantaged position, any other person or group of persons acting bona fide can move the Court under this section for relief under this Act.
6.	(1)	No application for judicial review shall be made unless leave of the Court has been obtained in accordance with rules of court.
(2)	The Court shall not grant such leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.
7.	(1)	Notwithstanding section 6, where the Court is satisfied that an application for judicial review is justifiable in the public interest, it may, in accordance with this section, grant leave to apply for judicial review of a decision to an applicant whether or not he has a sufficient interest in the matter to which the decision relates.

Case Law :

Cases on doctrine of separation of Powers.

1.	Hinds v R [1977] A. C. 
In Hinds v R, the authority which may properly be regarded as the locus classicus on the doctrine of the separation of powers in the context of Westminster model Constitutions, the Privy Council considered the constitutionality of the Jamaican Gun Court Act 1974. 
By this Act, the Parliament of Jamaica had established a gun Court to try firearm offences. The Act created inter alia a Full Court Division, which comprised three resident magistrates, was invested with jurisdiction to which had, before the Act, been exercisable only by a Supreme Court Judge.     
The majority of their Lordships held :
"The principle of separation of powers was implicit in the Constitution and Parliament had no power to transfer from  the Judiciary to the Review Board, the majority of whose members were not qualified to exercise Judicial powers, a discretion  to determine the severity of punishment……."

See p. 197, [1977] A.C. 
In the course of his judgment, Lord Diplock considered the historical development of the written Westminster type Constitutions and is reported at p. 212 to have said:
"All of them were negotiated as well as drafted by persons nurtured in the tradition of that branch of the common law of England that is concerned with public law and familiar with the basic concept of  separation of legislative, executive and judicial power as it had been developed in the unwritten constitution of the United Kingdom.  As to their subject matter, the peoples for whom new constitutions were being provided were already living under a system of public law in which the local institutions through which government was carried on, the legislature, the executive and the courts, reflected the same basic concept.
The new constitutions, particularly in the case of unitary states, were evolutionary not revolutionary.  They provided for continuity of government through successor institutions, legislative, executive and judicial, of which the members were to be selected in a different way, but each institution was to exercise powers which although enlarged, remained of a similar character to those that had been exercised by the corresponding institution that it had replaced.
Lord Diplock continued his analysis at p.212 D, by describing the doctrine of the separation of powers as “a basic principle” and by demonstrating how the doctrine, though not expressly stated in the Constitution, was nonetheless incorporated therein:  
“Because of this a great deal can be, and in drafting practice often is, left to necessary implication from the adoption in the new constitution of a governmental structure which makes provision for a legislature, an executive and judicature.  It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government.  Thus the constitution does not normally contain any express prohibition upon the exercise of legislative powers by the executive or of judicial powers by either the executive or the legislature.
The presence of this basic constitutional principle was discernible in all the new written Constitutions :
In the result there can be discerned in all those constitutions which have their origin in an Act of the Imperial Parliament at Westminister  or in an Order in Council, a common pattern and style of drafts-manship which may conveniently be described as "the Westminister model."
p. 213 Hinds v The Queen (Supra)
"What, however, is implicit in the very structure of a Constitution on the Westminister model is that judicial power however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the Chapter dealing with the judicature, even though this is not expressly stated in the Constitution: Liyanage v The Queen [1967] 1 A.C. 259, 287-288.
The more recent constitutions on the Westminister model, unlike their earlier prototypes, include a Chapter dealing with fundamental rights and freedoms.  The provisions of this Chapter form part of the substantive law of the state and until amended by whatever special procedure is laid down in the Constitution for this purpose, impose a fetter upon the exercise by the legislature, the executive and the judiciary of the plenitude of their respective powers."
	Lord Diplock, at p. 218 of the Report referred extensively to the provisions of the Constitution which guaranteed security of tenure to Judges and then accepted that a specialist Court could properly be created.
p. 219 Hinds v The Queen (P.C.) A.C. (1977)
"Their Lordships accept that there is nothing in the Constitution to prohibit Parliament from establishing by an ordinary law a court under a new name, such as the "Revenue Court," to exercise part of the jurisdiction that was being exercised by members of the higher judiciary or by members of the lower judiciary at the time when the Constitution came into force.  To do so is merely to change the label to be attached to the capacity in which the persons appointed to be members of the new court exercise a jurisdiction previously exercised by the holders of one or other of the judicial offices named in Chapter VII of the Constitution.  In their Lordships' view, however, it is the manifest intention of the Constitution that any person appointed to be a member of such a court should be appointed in the same manner and entitled to the same security of tenure as the holder of the judicial office named in Chapter VII of the Constitution which entitled him to exercise the corresponding jurisdiction at the time when the Constitution which entitled him to exercise the corresponding jurisdiction at the time when the Constitution came into force.  Their Lordships understand the Attorney-General to concede that salaried judges of any new court that Parliament may establish by an ordinary law must be appointed in the manner and entitled to the security of tenure provided for members of the lower judiciary by section 112 of the Constitution."

At p. 221, Lord Diplock resolves the need for an independent Judiciary into the right of the individual  to access to the Court:
See p. 221 Hinds v The Queen (P.C.) A.C. [1977]
"But more important, for this is the substance of the matter, the individual citizen could be deprived of the safeguard, which the makers of the Constitution regarded as necessary, of having important questions affecting his civil or criminal responsibilities determined by a court, however named, composed of judges whose independence from all local pressure by Parliament or by the executive was guaranteed by a security of tenure more absolute than that provided by the Constitution for judges of inferior courts.”
2.	Browne v R (2000) 1 A.C. 45.
Some three (3) decades later,  the Eastern Caribbean case of Browne v R provided an opportunity for their Lordships to revisit the principle of the separation of powers.
The Appellant, at the time a minor, was convicted of murder and was sentenced to prison "during the Governor General's pleasure…."
The Privy Council held that a sentence of imprisonment during the "Governor General's pleasure" was unlawful in that the discretionary power to determine the length of imprisonment was invested in the executive rather than the Court.

3.	D.P.P. v Kurt Mollison P.C.#88 of 2001 

D.P.P. v Kurt Mollison followed swiftly after Browne. In Mollison, a minor had been convicted of murder and had been sentenced, pursuant to s. 29, of the Juveniles Act 1951, to imprisonment during the Governor-General’s pleasure.  Their Lordships at the Privy Council considered the constitutional validity of the detention during the pleasure of the Governor General.
The Lord Bingham of Cornhill, in delivering the majority decision of their Lordships identified as one of the two issues for consideration whether the section which conferred on the Governor General the power to determine the measure of punishment was compatible with the Constitution.
At paragraph 11 of the Judgment, Lord Bingham of Cornhill identified the reason why s. 29 of the Juveniles Act 1951 (JA) was incompatible with the Jamaican Constitution.
"A person detained during the Governor-General's pleasure is deprived of his personal liberty not in execution of the sentence or order of the Court but at the discretion of the executive such a person is not afforded a fair hearing by an impartial Court……."
At paragraph 12 of the judgment, His Lordship quoted the following words of Lord Diplock in Hinds:
"What, however, is implicit in the very structure of a Constitution on the Westminster model is that judicial power however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the Chapter dealing with the judicature, even though this is not expressly stated in the Constitution: Liyanage v The Oueen
	His Lordship quoted from the judgment of Lord Diplock:
"What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body …a discretion to determine the severity of the punishment to be inflicted on an individual member of a class of offenders ……" (see supra)
	In observing the reliance place by the Court of Appeal on Hinds, Lord Bingham said at paragraph 13 :
"It does indeed appear that the sentencing provisions under challenge in Hinds were held to be unconstitutional not because of their repugnancy to any rights guaranteed by sections in Chapter III of the Constitution but because of their incompatibility with a principle on which the Constitution itself was held to be founded."
Again at paragraph 13 His Lordship said:
"Whatever overlap there may be under Constitutions on the Westminster model between the exercise of executive and legislative powers, the separation between the exercise of judicial powers on the one hand and legislative and executive powers on the other is total or effectively so."

	At paragraph 13 Lord Bingham set out the opinion of the Board on the question of the separation of powers  and reconfirmed that the principle of the separation of powers was operative in the Constitution.
"In the opinion of the Board, Mr. Fitzgerald has made good his challenge to s. 29 based on its incompatibility with the Constitutional principle that judicial functions must be exercised by the Judiciary and not by the executive."

4.	Chuck Attin v A.G. H.C.A. #2175/2003
Issues similar to those which arose in Mollison and Browne were canvassed in Chuck Attin v A.G. In his judgment, the  Honourable Justice Mendonca, (as he then was,) considered the constitutionality of s.79 of the Children Act, which prohibits the sentence of death on persons below the age of 18 years and prescribes in its place detention at the State's pleasure.
In the course of the matter, Counsel for the Applicant, Chuck Attin raised arguments on the doctrine of the separation of powers.   At p. 5 of 19 of the judgment, the learned Justice Mendonca (as he then was) set out the contentions of Counsel for the Applicant :
"The Applicant contends that ss. 79 and 81 violate the constitution for 2 reasons.
(1)	that it offends the separation of powers doctrine in that it transfers from the Judiciary to the executive the discretion to determine the severity of sentence……
(2)	It offends against the rights to a fair trial ……"

The Learned Justice Mendonca, citing Hinds and Mollison held that the sentence prescribed by s, 79 of the Children Act was contrary to the Constitution "in that it offends against the fundamental principle of the separation of powers between the Judiciary and the executive……” See page 8 of 19 of the judgment of Justice Mendonca.  
5.	Findlay v U.K. (1997) E.C.H.R. 22107/93
In the case of Findlay, the European Court of Human Rights considered the fairness of a hearing by Court martial.  The Applicant was a member of the British army who, in the throes of depression, held members of his unit at pistol point threatening to kill them and to commit suicide.
The convening officer of the court martial was responsible for appointing members of the court martial.
Those appointed were subordinate in rank to the convening officer and fell into his chain of command.  The applicant was sentenced to two (2) years imprisonment, a reduction in rank and dismissal from the army.
It was held:
"In order to establish whether a tribunal could be considered as independent regard was to be had……to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presented an appearance of independence.” (my emphasis).
The Court expressed the view that the applicant's doubts about the objectivity of the tribunal's independence could be justified and  held that there had been a violation of Article 6(1) of the European Convention on Human Rights.
6.	Balkissoon Roodal v The State

	In the case of Roodal v The State P.C. #18 of 2003 their Lordships re-examined the constitutionality of the death penalty in Trinidad and Tobago.
	Of the issues adjudicated upon by the Privy Council, only one is relevant, that is to say:
"(c) in the further alternative whether the imposition of a mandatory death sentence violates the constitutional principle of separation of powers……"
At paragraph 33, of their judgment, their Lordships  said that they expressed no view on the issue of separation of powers. From the pronouncement of their Lordships on the issue of separation of powers, one may assume that the decision of the Court of Appeal in Roodal  on the issue of the separation of powers has remained undisturbed. 
In Balkissoon Roodal v. The State ,  at p. 22 of the unreported Judgment, the learned Chief Justice said : 
“We turn now to the argument based on the doctrine of separation of powers…[The] appellant’s argument here rested on two planks.  The first was that the mandatory death penalty for murder involved the assumption by the legislature of a power of sentencing which properly belonged to the judiciary.  The second was that the conjoint effect of the mandatory death penalty and the role played by the Executive in determining whether a death sentence should be commuted in accordance with the relevant provisions in the Constitution, effectively vests the power of determining the sentence in the Executive  (emphasis mine) and involves the assumption of a judicial function by another branch of Government, in this case the Executive."

The Learned Chief Justice observed that it had been the decision of the Privy Council on more than one occasion that:
“…..the sort of exercise undertaken by the Minster and the Mercy Committee in death penalty cases…does not form part of the sentencing process…”

The learned Chief Justice referred to the case of Jones v. Attorney-General of Bahamas [1995]1W.L.R.891 and to the words of Lord Lane the Judicial function ends when the Judge passes sentence.  The learned Chief Justice quoted Lord Bingham in the case of Reyes v.R [2002] 2 W.L.R.1034, as describing the Mercy Committee as performing an extremely important function.  “But it is not,” rules Lord Bingham “a sentencing function.”  At p. 25, the learned Chief Justice concluded :
“If what was done by the Minister and Mercy Committee under ss. 88 and 89 of the Constitution is not part of the sentencing process for the purpose of curing deficiencies in a mandatory death penalty, then it cannot be considered to be part of that process for the purpose of constituting a breach of the doctrine of separation of powers…."

On the authority of the Privy Council’s decisions in Jones and Reyes, the Chief Justice said :
“Those cases effectively preclude us from treating the functions carried out by the President and the Mercy Committee under ss. 87, 88 and 89 …as a participation by them in the sentencing process….”
	The Court of Appeal in Roodal held that the doctrine of the separation of powers had not been breached because the deliberations and eventual decisions of the Mercy Committee were not part of the sentencing process and did not thereby constitute an encroachment of the Mercy Committee, as part of the executive, on the territory properly occupied by the judiciary.
	It is necessary to observe, at this stage, that the issue, which arises before me is quite different.  I am here concerned with the question of whether an appointment of a Judge by Cabinet in the manner in which the incumbent Chairman had been appointed contravenes  the doctrine of the separation of powers.  For the purpose of the Application herein Balkissoon Roodal v The State is unhelpful. 
7.	Millar v Dickson [2002] 3  All E.R. 1041 
	The Privy Council heard this appeal from the High Court of Scotland. Of the four Appellants, some had either pleaded guilty to criminal charges, while others had been convicted of criminal charges in proceedings before temporary sheriffs. All the Appellants had been sentenced by the temporary sheriffs.  Subsequently, the High Court of Scotland held that temporary sheriffs were not an independent impartial tribunal within the meaning of s. 6(1) European Convention.
	The High Court of Scotland held that the Applicants through their Attorney had waived their right to object to a hearing by temporary sheriffs.
	Lord Bingham of Cornhill, in the majority decision of their Lordships, expressed the view that a temporary sheriff was not an independent impartial tribunal and said:
" I also accept that is this case there is a link between perceptions of independence  and perception of impartiality of the kind which has been categorized in Canada as institutional impartiality.  I consider that there is a real risk that a well informed observer would think that a temporary sheriff might be influenced by his hopes and fears as to his (prospective) advancement (emphasis mine)……."
At paragraph 9, one finds Lord Bingham’s  exposition on the importance of the quality of independence.
"As regards the actual words "independent" and" impartial" the latter appears to me to be the essence of the judicial process.  I would regard the concept of a partial Judge as a contradiction in terms.  But I am inclined to see independence…… as an additional substantive requirement ……  Independence will guarantee not only that the judge is disinterested in relation to the parties and the cause but also that in fulfilling his judicial function ……he is and can be seen to be free of links with others ……which might or might be thought to affect his assessment of the matters entrusted to him……"

	Later in paragraph 9, Lord Bingham said:
"……if a Judge is not independent then however great his integrity it may be very difficult for him to know whether his want of independence affects the way in which he carries out his judicial duties."
	Lord Bingham quoted from the judgment of Lord Reed.  For the purpose of the matter in question, I have found the following to be useful:
"Judicial Independence can be threatened not only by interference by the Executive but also by a Judge's being influenced consciously or unconsciously by his hopes and fears as to his possible treatment by the Executive ……."

The Privy Council held eventually that hearing before a temporary Sheriff was not a hearing before an independent and impartial tribunal.

8.	Mc Gonnell v U.K. (2000) EC HR 61.
	This was a decision of European Court of Human Rights brought by the Applicant, Mc Gonnell against the U.K.
	The question which was considered by the Court was whether there was a violation of Article 6.1 of the European Convention of an Human Rights.  The Applicant's contention was summarized at paragraph 46 of the Reports:
"The Applicant pointed to the non-judicial function of the Bailiff as a Judicial Officer and the legislative and executive functions of government that the Bailiff no longer had the independence and impartiality required by Article 6."
	The Tribunal quoted from Findlay v U.K. and considered the concepts of independence and impartiality which, following Findlay, they described as "closely linked."
	At paragraph 50, the Court observed that there was no suggestion  that the Bailiff was subjectively prejudiced or biased when he heard the Applicant's planning appeal in June, 1995.
	At paragraph 52, the Court noted: 
"that the Bailiff's functions are not limited to judicial matters but that he is also actively involved in non-judicial functions on the island."

	The Court found that the Applicant had legitimate ground for fearing that the Bailiff may have been influenced by his prior participations in the Applicant's earlier planning enquiry.
	The unanimous decision of the Court was that there had been a violation of Article 6 No. 1.

Cases cited by Learned Senior for the Respondent.

9.	Bribery Commissioner v Ranasingh (1965) A.C. 172, where Lord Pearce re-emphasized the potential for Westminister model Constitutions to be altered at p. 197-198
“Such a constitution can indeed be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with……”

10.	In Matthew v State Privy Council 12 of 2004, the Judicial Committee of the Privy Council revisited the issue, which had been considered in Roodal v. the State, that is to say the constitutionality of the mandatory death penalty in Trinidad and Tobago.  By reference to ss. 4, 5 (2)(b) and s. 6 (1), their Lordships held:
“The language and purpose of s.6(1) are so clear that whatever may be their Lordships views about the morality and efficiency of the death penalty they are bound as a Court of Law to give effects to it.”
In giving their opinion, their Lordships overruled their earlier decision in Roodal v the State of Trinidad and Tobago.
At paragraph 27 of his judgment Lord Hoffman, referred to the third argument for the Appellant, that is to say that “the mandatory death penalty was contrary to the principles of the separation of powers.”
	At paragraph 28, their Lordships ruled:
“……the principle of the separation of powers is not an overriding supra-constitutional principle but a description of how the powers under a real constitution are divided. (emphasis mine).  Most constitutions have some overlap between legislative, executive and judicial functions.  The only question for their Lordships is whether the mandatory death penalty is in accordance with the actual constitution of Trinidad and Tobago.  As the constitution itself makes express provision of communication by the President ……their lordships do not think there is some other principle by which these laws will be invalidated…”
11.	Boyce and Anor v R (2004) U.K. P.C. is the Barbadian equivalent to Charles Matthew v The State (supra).  At p. 68 of the written decision, their Lordships considered the issue of the separation of powers.  At paragraph 69, their Lordships observed that “[B]oth mandatory sentence and executive clemency are in accordance with the constitution.”
	The thinking of their Lordships is to be found at paragraph 70 of the Judgment-:
“It follows that neither can be rejected the principle of the separation of powers.  Although Blake, Q.C. submitted that it was a principle which overrode even the terms of the Constitution itself, their Lordships regard this as an extravagant proposition to say that a constitution is based upon the principle of the separation of powers is pithy description of how the Constitution works.  But different Constitutions apply this principle in their own ways and a Court can concern itself only with the actual Constitution and not with what it thinks might have been ideal one.”

12.	A.G. of Trinidad and Tobago v Wayne Whiteman (39 W.I,R. ) is the watershed decision whereby the Privy Council ruled that an arrested person
has a right to be informed of his right to consult an Attorney at Law of his choice.
This decision further developed Constitutional jurisprudence in its construction of s. 5(2)(h) of the Constitution, which prohibits Parliament from depriving a person of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid right and freedom.
By the time of the Privy Council’s decision in Whiteman, it had been long established in the case of Thornhill v A.G. (1979) 31 WIR 498 that the provisions of s.5(2) “spell out in greater detail…” what is included in the phrase “due process of laws”   at s. 4 (a) and of the “protection of the law”at s.4(b), and that the provisions of s.5 (2) (e) were thereby impliedly incorporated into the fundamental rights provisions at s.4..
In Whiteman, their Lordships held that at the time when the Constitution came into effect, there had been in existence a settled practice of informing the arrested person of his right to consult Counsel in accordance with the 1965 Judges Rules.
Their Lordships also considered that the practice of informing the arrested person of his rights was both procedural and necessary for the protection of the right enshrined at s. 5(2)(c) (ii) of the right to Counsel.

Cases on locus Standi:

13.	In Durayappah v Fernando [1967] 2 A.C.337, an appeal to the Privy Council from Ceylon, the Minister exercising powers conferred by the Municipal Council Ordinance made an order stating that it appeared to him that the Jaffra Municipal Council was not competent to perform duties imposed on it and that the Council should be dissolved and superseded.
The Appellant who had been the Mayor of the Council sought orders of certiorari and quo warranto in respect of the Minister's decision.
Their Lordships held that the Council was entitled to an opportunity to be heard before the Minister exercised his power to dissolve the Council.
Their Lordships held further that the Minister's order was not a nullity but was voidable only at the election of the Council and:
"……although the Council should have been given the opportunity of being heard in it defence it chose not to complain and took no step to protest against its dissolution that accordingly the Appellant as Mayor did not have the right to interfere independently of the Council…(my emhasis)…"
	See paragraph (5) of the Head note at p. 339 of the Report and p. 352 per Lord Upjohn.
	At p. 355, of the Report, Lord Upjohn is reported as having analysed the problem in this way:
"While in this case their Lordships have no doubt that in an action by the Council the Court should have held that the Order was void ab initio and never had any effect that is quite a different matter from saying that the order was a nullity of which advantage could be taken by any other person having a legitimate interest in the matter.
Their  Lordships are clearly of opinion that the order of the Minister was voidable and not a nullity……"
Learned Senior Council for the Applicant in considering the learning in Durayappah v Fernando argued that the dismissal of a Chief Police Constable was distinguishable from the dismissal or failure to re-appoint a Judicial Officer.  A breach of natural justice in respect of the latter, was a decision in which the ordinary litigants had a sufficient interest.

Natural Justice and Legitimate Expectation

14.	The doctrine of legitimate expectation has been described as being inextricably bound up with the rules of Natural Justice and it is therefore convenient to treat both together.
See A.G. v K.C. Confectionary 34 W.I.R. 387 Per Persaud, JA at 409 b
15.	Learned Senior Counsel for the Applicant cited and relied on the Privy Council judgment in Barl Naraynsingh v Commissioner of Police # 42 of 2003.  I have attempted to make careful and extensive reference to this case, not only because of its  obvious high authority but also because of the heavy reliance which learned Senior Counsel, Mr. Maharaj, placed on it. 
The Applicant/Appellant, Barl Naraysingh had been the holder of a firearm users licence, until its revocation by the Commissioner of Police in 1998.  The Commissioner of Police exercised the power of revocation invested in him by the Firearms Act 1970, at s.21(d), which gave him a general power to revoke "…in any other case if he thinks fit…." 
The basis for the revocation by the Commissioner of Police was that an unlicenced firearm had been found in the Appellant's home  during the execution of a civil debt. The Appellant and his Wife were charged with possession of an unlicenced firearm.  Ten days later the police required that the Appellant hand over the licence.
The Appellant denied that the unlicenced firearm was his or that it could have been found at his home.  Following the dismissal of the charges some nineteen months later, the Appellant made a written request for the return of his licenced firearm.  The Commissioner of Police gave the Appellant an opportunity to advance reasons against the revocation of his licence.  The Appellant's Solicitor replied on his behalf indicating that there was a possibility that the unlicenced firearm had been planted on his premises.  Notwithstanding the Appellant's reply the Commissioner of Police nevertheless revoked the Appellant's licence.
In his Affidavit, the Commissioner of Police indicated, for the first time, that following the receipt of the Appellant's original request, he had requested a report from Senior Superintendent Christopher.  The report has been set out in full in their Lordships Judgment.
Their Lordships considered whether the Commissioner of Police had acted unfairly.  Their Lordships quoted Lord Mustill in R v Secretary for State Exp. Doody (1994) A.C. 531, 560:

"What does fairness require in the present case?  My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment.  They are far too well known.  From them, I  derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.  (2) The standards of fairness are not immutable.  They may change with the passage of time, both in the general and in their application to decisions of a particular type.  (3)  The principles of fairness are not to be applied by rote identically in every situation.  What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4)  An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which a decision is taken. (5)  Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken, with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."
At paragraph 19, their Lordships held that the Commissioner of Police was not required to convene an oral hearing before exercising this power, but could adopt an exclusively written procedure.
Lord Browne on behalf of their Lordships hastened to add at paragraph 21 :
“That is not to say…that the procedure adopted in the present case and in particular the perfunctory nature of the Commissioners own inquiry into the facts satisfied the requirements of fairness …”

At  paragraph 21 , Lord Browne observed : “Substantially more in the way of investigation was required” and later : “Further enquiries could and should have been made…”
In allowing the appeal and quashing the Commissioner’s decision to revoke the licence, their Lordships held :
“…where  as here further information obviously was available and where there are a number of puzzling features of the case…..then a fair procedure demanded that further enquiries be made….."

16.	Mc Innis v Onslow-Fane [1978] 1 W.L.R. 1520. 

	The categories identified by Megarry,V.C. in Mc Inniss v Onslow-Fane are useful for the purpose of this case.
	The facts of that celebrated case concerned the several unsuccessful applications by the Plaintiff for a boxers' manager's licence.  The Applicant made his sixth (6th) application to the British Boxing Board of Control and asked for an oral hearing together with prior notification of anything that might prevent the board from making a favourable recommendation.
	In the course of dismissing the Application, Megarry V. C identified three categories of cases.  At p. 218 of the Report, of the Megarry V.C. alluded to the "application" cases where there was no right to be heard and "forfeiture" cases.  He then formulated the well-known "intermediate category :

"The intermediate category……… may at least in some respects be regarded as being more akin to the forfeiture cases than the application cases; for although there is no application in form but merely an attempt at acquisition that fails, the legitimate expectation of the renewal of the licence or confirmation of the membership is one which raises the question of what it is that has happened to make the Applicant unsuitable for the membership or licence for which he was previously thought suitable……."

Law on Bad Faith

17.	This ground should not lightly be alleged and it is difficult to prove.  See Fordham, Judicial Review Handbook (3rd ed.) p.751.

18.	Rees v Crane (1994) 2AC 173

The facts of this matter are well-known.  The Respondent had been a Judge of the High Court.  The Chief Justice of the day had taken him off-roster.  Without notifying the Respondent, the Judicial and Legal Service Commission met to consider whether representations should be made to the  President with a view to having the Respondent removed from office.
The Privy Council found that the incumbent Chief Justice had acted in breach of the principles of natural justice and that the Respondent’s constitutional rights as enshrined at s. 4(b) had been infringed.
In respect of the ground of bias, however, their Lordships dismissed the Respondent’s cross-appeal. Lord Slynn of Hadley expressed the following view on behalf of their Lordships:
"…it is not lightly to be assumed that he (the Chief Justice) would allow personal hostility to colour his decision to suspend the Respondent.”

19.	Hayde v P.S.C. Cv. A. 12 of 1999

The Respondent, Hayde, sought relief under s. 14 of the Constitution, claiming that his rights under s. 4(b) and (d) of the Constitution had been infringed.
	Justice of Appeal Sharma (as he then was ) in the course of delivering the judgment on behalf of the other Justices of Appeal, considered whether bad faith had been established as an element of inequality of treatment.
	Sharma, J.A. (as he then was) quoted from his judgment in  Rees v Crane and held as follows :
"…a Court is more likely to infer bad faith if one individual is involved as opposed to a group, commission or body."

Irrationality
	
20.	The Learned authors of Fordham, Judicial Review Handbook (3rd ed.) write at p. 789:
"This principle (unreasonableness) involves interfering with questions of substance and including matters of fact and degree, discretion, judgment and policy.  Since these are entrusted to the public body as primary decision-maker…the reasonableness standard will only permit interference in a clear case."
21.	One of the more recent tests of irrationality was propounded in R v Parliamentary Commissioner ex. P Balchin (1998) 1 P.L.R.1 13 E-F in which the Court decreed that what had to be proved was that "…the decision does not add up…in which in other words there is and error in reasoning which robs the decision of logic…" see Fordham Judicial Review Handbook (3rd ed.), p. 791.
22.	Lord Diplock in CCSU v Minister for Civil Service, defines the irrational decision as one which is "…so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it…".
23.	Lord Brightman in R v Hillingdon LBC exp. Pulhofer  (1986) A.C. 484 at 518 C describes the irrational decision as one which is “perverse”. 

Law on Relevancy: The Creednz Approach

	In the case of  CREEDNZ Inc. v Governor General (1981) N.Z.L.R. 172 Justice Cooke formulated the following: 
"What has to be emphasized is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account …… that the Court holds a decision invalid on the ground now invoked ……."
This formulation was approved by Lord Scarman in the case of In re Findlay (1985) A.C. 319 and developed by Lord Justice Laws in R. v North Warwickshire Borough Council (2001) EWCA.
"The general law as regard the duty of a public decision-maker to take relevant considerations into account is well-known.
(1)	If the operative statute provides a lexicon of relevant considerations to which attention is to be paid, then obviously the decision-maker must follow the lexicon.
(2)	If however the statute provides no such lexicon, or at least no exhaustive   lexicon, then the decision-maker must decide for himself what he will take into account.  In doing so he must obviously be guided by the policy and objects of the governing statute, but his decision as to what he will consider and what he will not consider is itself only to be reviewed on the conventional Wednesbury principle: see the judgment of the New Zealand Court of Appeal in CREEDNZ Inc. v Governor General (1981) 1. NZLR 172, approved by Lord Scarman for the purposes of the law of England in  In re Findlay (1985) AC 319 HL."

Issues :

1.	Whether the manner in which Cabinet selected the second Chairman of the Commission was in breach of the principle of the separation of powers ;
2.	If so, whether Cabinet’s decision was unlawful and in breach of the fundamental rights of the residents of Tortuga as enshrined at s.5(2)(e) of the Constitution;
3.	Whether  the decision of Cabinet was in breach of the legitimate expectation of the  residents of Tortuga; 
4.	Whether   the decision of Cabinet was in breach of the principles of natural justice,
5.	Whether the decision of Cabinet was irrational and/or made in bad faith; Whether in making its decision, Cabinet  took into account  matters which were irrelevant or whether Cabinet failed to consider matters which were relevant;
6.	Whether the Applicant was clothed with sufficient interest to seek judicial review of the decision of Cabinet. 

Reasoning And Decision

The Doctrine of the Separation of Powers

Learned Senior Counsel, Mr. Maharaj was careful to define the boundaries of his argument .  Learned Senior  described as a complete misconception of his case any suggestion that  the executive should have no involvement in the selection of  the Chairman of the Commission. 
 Learned Senior  stressed that he was not contending that  the EMA was unconstitutional . His attack was directed at the manner in which the second Chairman was appointed. He contended further that Cabinet was under a duty to adopt the procedure which had been employed for the appointment of the first Board that is to say that a separate independent Committee should be appointed to select officers and to make recommendations to Cabinet for their appointment. 
Having regard to the cited authorities, it appears that there is an international trend towards the enhancement of judicial independence from the executive.  The public perception of whether the tribunal is independent of the executive is critical and becomes increasingly so in proportion to the proximity of the tribunal in question to the Supreme Court of Judicature in the spectrum of judicial bodies.  The closer the power of the tribunal in question to the Supreme Court of Judicature the greater the requirement of judicial independence.
The role of Cabinet in selecting the Chairman of the Commission clearly compromises the public perception of the Commission’s independence. The limitation of the term of office to five years, though renewable, together with the direct selection by the executive, facilitates what was described in Millar v Dickson (see supra ) as the festering of a hope of re-appointment according to the pleasure of the executive.
The pertinent question is whether this conflict is cured by the passage of the Environmental Management Act in accordance with s.54 of the Constitution and whether assuming that the Environmental Management Act is valid, whether the executive was under an obligation to follow the procedure which had been adopted, when the first Chairman was appointed in the year 2000.
The power of Parliament to alter the Constitution is built into the Constitution.  The existence of this power was acknowledged by Privy Council in many cases.  The case of Ranasingh is but one.  The power of Parliament to alter the Constitution includes the power to alter the doctrine of the Separation of Powers . This doctrine though implicit in the structure of the Constitution has been described in the recent Privy Council decision of Matthew v. the State as not being “an overriding supra-constitutional principle.”  One may infer from this pronouncement that the doctrine is similarly not a pillar supporting the constitution  but continues to be merely “a description of how the powers under a real constitution are divided …” See supra for reference to Matthew v. the State . The parts of the Constitution may, by the provisions of the Constitution itself ,be altered according to varying degrees of entrenchment by the will of the people in Parliament.
In and for the purpose of the Environmental Management Act, Parliament altered provisions which dictate the manner of appointment and of removal of the judicial officers, who, comprising the Commission, would exercise powers of a Superior Court of Record.   The alteration is certified to have been made with the majority, required by s.54 of the Constitution.  The Environmental Management Act and  its provisions which conflict with Constitutional provisions for the security of tenure of judges are therefore beyond challenge.  Appointments which have been made in accordance with the Act are also beyond challenge on the ground that they have been made a manner which creates the perception of  a lack of judicial independence.
I will now consider the argument that Cabinet had an obligation to employ a procedure similar to that adopted by its predecessor in appointing the first Commission. In my view, the obligation of the executive was to comply with the terms of the Environmental Management Act.  They were not under an obligation to read any procedures into the statute or to be bound by procedures which had been used on a previous occasion.  The authority of A.G. v. Whiteman (see supra ) does not assist the Applicant . By definition a “settled practice” is one that has been observed for many years. The practice to which Applicant has alluded was observed only once. Moreover , the alleged practice was not in existence at the date and which the Constitution came into effect and cannot therefore be regarded, as in Whiteman , as a procedural provision, envisaged by s. 5(2) (h) of the Constitution .
I have considered the contention of learned Senior Counsel, Mr. Maharaj that the Environmental Management Act did not alter the fundamental right, enshrined at s. 5(2)(e) of the Constitution to a fair hearing in accordance with the principles of fundamental justice. It seems to me that the substance of this right must be informed by the Constitution, the common law and by constitutionally passed Acts of Parliament.
I therefore am constrained to reject this ground compelling though the arguments may have been. 

4.	Decision on Locus Standi 
	This Applicant approaches the Court under s. 5(6) of the Judicial Review Act, the complete text of which is set out at supra. 
The Respondent has advanced no argument that the residents of Tortuga have failed to meet the requirement of s.5(6) of being “…..unable to file an application for judicial review under this Act on account of poverty, disability, or socially or economically disadvantaged position…” 
Similarly there is no contention that the Applicant has not been acting bona fide. In fact, the  Applicant has adduced extensive, yet un-contradicted evidence, as to its work as a public spirited organization. 
In order however to be successful in their Application, the Applicants must surmount yet another hurdle. In my view, they are required, by the terms of the section to show  that the person or group on whose behalf they have filed an application are “…. aggrieved or injured by reason of any ground referred to in paragraph (a) to (o) of subsection (3)…”
In order to determine whether, according to the plain ordinary meaning of the word, the residents of Tortuga have been “aggrieved…” or “injured” by any ground specified at sub-section 3, it would be necessary to consider the letter, by which the residents of Tortuga sought the assistance of the Applicant. This document is exhibited herein as “A.D.Y.H.2”. It is a letter dated 19th February, 2004 and by this letter the residents describe the distress caused to them by the dumping of garbage near to their properties.  They then go on to express their wish to approach the Environmental Management Authority and, if the need arises to seek the protection of the Environmental Commission. After referring to the appointment of a new Chairman in January,2004, the residents then express this fear :
‘We are fearful that the present Commission so appointed may have been unlawfully appointed and will be unable to ensure that there is in place a legitimate Commission which is lawfully appointed in order for us to get the relief intended by Parliament.” 
It appears to me that the Applicant has demonstrated that the residents are both “aggrieved…” and “injured” by the dumping of garbage near to their homes. However in respect of the decision of  Cabinet not to re-appoint Justice Hosein they have expressed no more than a fear.
If then I construe the provisions of s. 5(6), as I am required to  according to the plain an ordinary meaning of the words, it appears to me that the Applicant has fallen short of the clear dictates of s.5(6) of the Judicial Review Act and ought to be denied relief.
This clearly was not an argument of Mr. Hamel-Smith learned Senior Counsel for the Respondent, who conceded that the Applicant had a sufficient interest in respect of the doctrine of the separation of powers. In the event therefore that the foregoing analysis is wrong, I will go on to consider whether the Applicant lacks locus standi  in respect of the grounds other than the doctrine of the separation of powers.
Mr. Hamel-Smith, Learned Senior Counsel for the Respondent, in the course of his oral submissions, argued  that s.5(6) required that the person on whose behalf an application was being brought should be aggrieved by a ground specified at subsection 3, as distinct from having been aggrieved by merely the decision.  In the context of this matter , the residents of Tortuga, according to the contention of learned Senior, should be aggrieved by the “a breach of natural justice” or   by “bias” or by “irrationality” or by a “breach of the doctrine of legitimate expectation.”  Those grounds, according to the argument, exist in relation to the person directly aggrieved, that is to say the person who had been denied natural justice. 
I therefore find it necessary to proceed to consider the merits of the individual grounds.

5.	 (i) Breach of Natural Justice:
In my view, Justice Hosein’s case falls squarely within the category of the expectation cases as formulated by Megarry,V.C. in Mc Innis v Onslow-Fane [1978] 1 W.L.R. 1520.  In my respectful view the words of Megarry, V.C. are directly applicable to the refusal by the executive to re-appoint Justice Hosein. Borrowing the words of Justice Megarry, it is in my view accurate to say that 
“ although there is no forfeiture in form but merely an attempt at acquisition that fails, the legitimate expectation of the renewal of the (appointment)….. is one which raises the question of what it is that has happened to make the Applicant unsuitable for the membership or licence for which he was previously thought suitable…….”
Justice Hosein, according to the terms of S.82(4) was aware that he was eligible to be re-appointed, following the expiry of  his first term of five (5) years. He took the necessary steps to ensure that the line Minister was apprised of his willingness to serve for another term. He was neither notified of the possibility of being replaced nor was he allowed in any form to advance reasons against his replacement. 
Learned Senior Counsel , Mr. Hamel-Smith argued by reference to s. 20 of the Judicial Review Act  that Justice Hosein was entitled only to be treated in a fair manner. In my view, the words Lord Mustill in R v Secretary for State Exp. Doody (1994) A.C. 531, 560 are apt in elucidating the meaning of fairness in this case:
“ Fairness requires that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken, with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.” See supra.
Justice Hosein  was entitled to be treated in a fair manner which required at least that he be given an opportunity to be heard.  He was never afforded this opportunity.

(ii) Bad Faith
It has been argued on behalf of the Applicant that the executive acted in bad faith in refusing to re-appoint Justice Hosein. On behalf of the Applicant , learned Senior Counsel Mr. Maharaj relied on two (2) complaints which had been made by Justice Hosein first to the Prime Minister and secondly to Minister Dumas. Both complaints concerned  the requirement of judicial independence , which should be accorded to the Commission.
Learned Senior Counsel Mr. Maharaj commended to the Court the learning contained in Fordham, Judicial Review Handbook (3rd ed.) and contended that this case was really one of abuse of power . 	Learned Senior Counsel Mr. Maharaj  submitted that in order to decide this issue the Court should look to see if the decision was made in good faith. 
In my view this method of assessment will result in reversing the burden on the Applicant and placing  it on the administrative authority.  Moreover, the available learning  on this area suggests that the threshold is high  and asserts that  it ought not lightly to be alleged and is difficult to prove .
In Rees v. Crane , their Lordships dismissed Justice Crane’s cross-appeal on the ground of bias notwithstanding a finding of personal hostility on the part of the incumbent Chief Justice. Their Lordships’ words bear repetition  "…it is not lightly to be assumed that he (the Chief Justice) would allow personal hostility to colour his decision to suspend the Respondent.” See supra .
I am also guided by learning in  P.S.C. v Hayde C.A. 12/99 where the learned Chief Justice ruled that it was unlikely that bad faith would be found  to have infected the decision  of a group rather than an individual and that if   bad faith is so alleged , the allegation should be supported by cogent evidence.
In the instant case the impugned decision was made by a group of persons, that is to say, the Cabinet.  There is no cogent evidence of bad faith.  The Court is required to infer the presence of bad faith and bias from the fact that the complaints of Justice Hosein were eventually followed by his replacement. 
In my view such an inference would be contrary to the preponderance of authority on bad faith  and  I am constrained to refuse to make it.
 
(iii)   Irrationality 

Learned Senior Counsel Mr. Maharaj submitted that in deciding whether a decision is irrational the Court should apply the test of whether that the decision does not “add up.”  This phrase in the words reported in R v Parliamentary Commissioner ex. P Balchin means “an error in reasoning which robs the decision of logic…”.
I cannot however ignore the reality that other formulated tests of the irrational decision have been authoritatively set at dizzying heights . They range from “perversity” in Pulhofer (see supra ) to  a finding that “the consequences of his guidance were so absurd that he (the decision-maker) must have taken leave of his senses” in Rv Secretary for State for the Environment ex p Nottinghamshire County Council [1986] A.C. 240 at 248. No less stringent is the test of Lord Diplock in CCSU v. Minister for the civil Service  : a decision “so outrageous in its defiance of logic and accepted moral standards…”
In my view the Applicant has fallen short of proving that the decision of Cabinet satisfies the tests. One may disagree with the decision and the reasoning provided  by the Minister.  Both decision and reason may be susceptible to justifiable criticism. That does not however render the decision reviewable on the ground of irrationality. I am therefore constrained to find against the Applicant on this ground as well. 

(iv) Irrelevancy
Learned Senior Counsel Mr. Maharaj argued that the decision of Cabinet to appoint the incumbent Chairman instead of Justice Hosein was defective in that Cabinet took into account the irrelevant consideration of Justice Hosein’s age and failed to take into account the superior judicial experience of Justice Hosein when compared to the present Chairman.  Learned Senior Counsel  also suggested, quite convincingly, that the Cabinet should have sought the assistance of an expert in judicial assessment.
In respect of this ground I am persuaded by the submission of Learned Senior Counsel , Mr. Hamel-Smith as to the applicability of the CREEDNZ principle. See supra . Where the empowering statute is silent as to relevant criteria it falls to the decision-maker to decide what is relevant. 
The Environmental Management Act, 2000 has identified two criteria for the office of Chairman. By s.82 of the Environmental Management Act, 2000  the Chairman must be an attorney-at-law of ten years standing . Aside from these two criteria of profession and  seniority ,  other relevant criteria  fall to be selected by Cabinet as decision-maker.  I find this ground to be without merit. 

Equality of Treatment
(v)   I am also un-persuaded by an argument that the fundamental rights under ss.4(b) and (d) of the Constitution  were contravened in relation to the  former Chairman. His standing as Chairman places him in a position of superiority to rather than equality with the other members of the Commission. The element of similar circumstances is missing. 

6.	Having held that Cabinet, acted in breach of natural justice in failing to afford Justice Hosein an opportunity to be heard either before or immediately after its decision not to re-appoint him, it is now necessary to consider whether  the residents of Tortuga were invested with sufficient interest in respect of  a breach of natural justice committed against Justice Hosein. 
In my view, the decision of their Lordships in Durayappah v Fernando [1967] 2 A.C.337 is helpful in this case : 
"……although the Council should have been given the opportunity of being heard in it defence it chose not to complain and took no step to protest against its dissolution that accordingly the Appellant as Mayor did not have the right to interfere independently of the Council…

In keeping with this authoritative ruling , I am of the view and I hold that although Justice Hosein should have been given the opportunity of being heard he chose not to complain and took no step to protest against Cabinet’s decision to appoint another to replace him and accordingly the residents of Tortuga do not have the right to interfere independently of Justice Hosein .
The Application is therefore dismissed.
I was grateful to Learned Senior Counsel, Mr. Hamel-Smith for drawing to the Court’s attention the provisions of s.7(8), Judicial Review Act.  This section prohibits the Court from making an award of costs against an unsuccessful applicant, who had sought judicial review on behalf of another under s. 5(6)of the Judicial Review Act.  An award of costs may be made only where the application is held to be frivolous and vexatious.
This application in my view was neither frivolous nor vexatious and accordingly there will be no order as to costs.
	Dated the 1st day of June, 2005.
							Mira Dean-Armorer
							Judge.