The Tuxedo Villas Affair has spawned discussion on the constitutional arrangements that exists among the Cabinet, the Legislature and the Judiciary. A local newspaper established a precedent by publishing twice in one week, an editorial which addressed some “unsettling” aspects of Justice Cottle’s judgment. The fundamental premise of the editorial is that by allowing the judiciary to determine the lawfulness of Cabinet’s decision on the concessions to Tuxedo Villas, the country has allowed a dangerous standard that subjects every decision made by Cabinet to Judicial Review. It may be that a jurist will offer a perspective on the issue that will be better presented and more cogently argued than what is on offer here. Nonetheless, in this article I argue that the concerns expressed in the editorial are unfounded.

The editorial is confusing. First, it establishes that it is concerned with, “Whether or not the matter [The Cabinet Conclusion] was subject to litigation at all in the courts.” Yet the author concedes that the matter was admissible in court. It is difficult for me to discern the difference between a matter that is subject to litigation and one that may be properly heard in court. Litigation is generally described as a legal proceeding in a court; a judicial contest to determine and enforce legal rights. In every instance where I obtained clarification for the term litigation, including Wikipedia, I was informed that litigation involves a lawsuit. Therefore, it is difficult to understand the distinction the editorial attempts to establish.

Regarding the legitimacy of the judgment in the Tuxedo Villas Affair, the argument offered is that no decision from the Cabinet should be subject to review by the judiciary because, “The persons who take decisions in Cabinet are elected, by the people, to take decisions on their behalf, in their name…and no one but the people should have to power to naysay the collective decision reached by that body.” The premise of this argument is fatally flawed. The members of Cabinet are not elected by the people—they are selected on the advice of the Prime Minister. Indeed, it is possible for the Cabinet to be comprised entirely of persons who were not elected. It follows that one cannot logically premise the inviolability of Cabinet’s decisions on the assumption that members of cabinet are elected.

Even if we concede that the persons who make up Cabinet are the same persons who were elected to the House of Assembly, it would still not be proper to conclude that being elected to one branch of the government gives one the power to act with impunity in another branch of government. The crux of my argument is that the authority a member of the House acquires from the electorate on account of being elected cannot be used to buttress his/her actions within Cabinet. Indeed, the Westminster system of government places the Parliament and the Cabinet at loggerheads with each other, for it is expected that the Parliament, (the elected and nominated members) should serve as a watchdog group for the Cabinet (the Prime Minister’s team). In light of the tension that should exist between the Parliament and the Cabinet it would be wholly inappropriate for one to glibly assign the authority that an elected parliamentarian acquired through the ballot box to a member of Cabinet who is selected through the whims of the Prime Minister.

It would have been less problematic, using the argument that the body was elected at the ballot box, to argue that decisions of the House of Assembly are not subject to the authority of the judiciary. Indeed on account of the principle that Parliament has overriding sovereignty A. V. Dicey (circa, 1885) argued that Parliament is the only body with the authority to make laws and that parliamentary sovereignty implies the subordination of the judiciary. Fortunately, Dicey also contended that Parliament must follow the rule of law in order to ensure that citizens will not be subject to a despotic parliament. Significantly, the episode which has been documented as the Rochamel Case provides credible evidence that Parliamentary Sovereignty does not insulate the Parliament and its decisions from the scrutiny of the judiciary. The Cabinet is but a subset of the Parliament, surely the minor cannot have more authority than the major.

Incidentally, the Rochamel case should expressly dispel the concern that Justice Cottle’s judgment will usher in a new dispensation whereby Cabinet Conclusions and decisions taken by the elected government officials will no longer be final. The simple reality is that the judiciary has always retained the authority to sanction the excesses of Parliament and the Cabinet. The Tuxedo Affair, like the Rochamel matter before it, neither adds to nor subtracts from that authority.

It is also crucial to address the following question: Would that [the judgment squashing the cabinet Conclusion] then constitute taking the power away from the hands of the people and placing it in those of a few selected judicial officials? In response, I cite Freeman who reminded us, “In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared pre-commitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures.”

The gist of Freeman’s position is that in a thriving democracy if the people decide that the Parliament and the Cabinet should be subject to judicial review then so shall it be. The proposition that the electorate can only express its disagreement at the ballot box is misguided and misleading. Further, such arguments may unintentionally cause politicians to routinely disregard the need for accountability.