By Joseph Ewart Layne
A Postscript to Armstrong
Rule in Armstrong
In a previous article, I wrote that the legal rule by which the learned judge determined the matter of Armstrong v. The Attorney General was: “A public officer first appointed prior to February 22, 1985, is entitled to pension benefits under the 1958 Pensions Act.”
The learned judge does not directly state the rule in the form or using the words set out above. The rule was arrived at by a process of deduction and extrapolation from the facts and reasoning set out in the judgment.
Such deduction and extrapolation from a judgment to extract the legal rule that was employed in a case is typical of the legal method. Consequently there can be dispute as to the exact rule that was employed in a case.
Developing the law
Judges play a very important role in administering and developing the law. The Constitution and the hundreds of laws containing thousands of sections passed by parliament over time can be visualised as the skeleton of the law. They are very important. They demarcate how tall or how short, how firm or how flexible the law is on a particular issue.
But it is the courts through the judicial decision making process, by interpreting and applying the law that breathe life, supply flesh and blood and transform the law into a living organism. The courts do so by applying the letter and spirit of the constitution, statutes, unwritten rules, principles and doctrines of law, developed over centuries, to real life issues and disputes. Out of this process, several principles have been developed. One such principle is that like cases should be decided in like manner. Treat like alike! is a hallowed principle of justice and a foundation stone of the rule of law.
The material facts of a case is a fact or combination of facts that determines whether a particular case is similar to or different from another case. In local parlance a material fact is a fact or combination of facts that would change the price of salt fish.
Determining the material facts
The process of determining the material facts can be a complex one. Sometimes it requires the court to take evidence and make a choice between different versions of the facts based on different stories. Other times there may not be different stories, but, there may be differences of opinion as to whether a fact or set of facts would change the price of salt fish.
At the end of the day it is for the court to make a determination as to what it considers to be the material facts and then apply the law to come up with an answer to the issue before the court.
Applying the law
There are occasions where the existing law does not provide an answer. In such a case a judge cannot throw up his or her hands in the air. The judge must develop the law by applying his or her understanding of the principles of law to come up with an appropriate rule for the case.
Experience has taught that this process of developing the law is best carried out by judges confining themselves to determining the issues before them. They must confine themselves to the material facts and thereby develop the law incrementally. This incremental development of the law is done by deciding what is necessary to make a decision in the case before the court, and no more. This is a time tested method, the violation of which could lead to a judge engaging in hit and miss.
Getting to Trinidad from Grenada
This aspect of the legal method can be illustrated by an analogy of a navigator based in Grenada facing the issue of getting to Trinidad by sea. First our navigator will seek to find out if there is any precedent for travel from Grenada to Trinidad. Let’s suppose there is none. It would fall to our navigator to find the solution for sea travel from Grenada to Trinidad by applying available learning in the field of navigation. He must of course get the material facts right such as that Trinidad lies immediately to the south of Grenada.
The navigator would have many options that can take him to Trinidad, including circuitous routes through Barbados, Venezuela, Miami or even around the world. Any of these options could take him to Trinidad.
If our navigator fails to give due recognition to the material fact that Trinidad lies south of Grenada and chooses a route that takes him to Miami, subsequent navigators considering the problem of travel to Trinidad may consider this a poor precedent.
Indeed some may doubt that he really got to Trinidad contending that like Columbus he ended up west intending to go east. Even those who accept that he reached Trinidad may not be persuaded that it was necessary to go all the way to Miami to get to Trinidad. They may refuse to follow that precedent unless they are compelled to do so.
Omission of a material fact
How does the above relate to Armstrong v. The Attorney General?
Armstrong was a case where there was no binding precedent for the court to apply. Price Findlay J. was required to develop the law.
It is to be noted that in Armstrong, the learned judge did not treat as a material fact that People’s Law No. 24 of 1983 (PL 24) was gazetted on 16th September 1983 but deemed to take effect from April 4, 1983. There is no mention of this fact in the judgment.
This omission made no difference to the outcome of the case. Ms Armstrong won the case despite it. However, if the learned judge had identified the above reference to September 16, 1983, as a material fact, she could have determined the case on the basis that the PRG could not on September 16, 1983, pass a law to remove pension rights acquired before that date. Why not?
Because the Grenada Court of Appeal held, and the Privy Council accepted, that though the Constitution was suspended during the Revolution, it was never abolished. Consequently, section 92(2)(b) of the Constitution, which is deeply entrenched, protected the right of a public officer to receive the pension under the law in existence at the time he or she was appointed.
Hence the 1958 Pensions Act could not be disqualified by PL 24 before 16th September 1983. Further a court adjudicating in 2012 through the lens of the Constitution could not properly hold that a law passed on September 16, 1983, could take away pension rights as from 4th April 1983.
Since Armstrong was appointed as of 17th May 1983, her case could have been determined by the rule that: A public officer first appointed prior to September 16, 1983, is entitled to pension benefits under the 1958 Pensions Act.
Does it really make a difference?
Since the learned judge at the end of the day was right in holding that Armstrong was entitled to pension benefits under the 1958 Pensions Act, does it really make a difference that – in a manner of speaking – the judge reached Trinidad through Miami?
The answer is, it does. A judge faced with a precedent setting case has at least two responsibilities. Firstly to do justice between the parties before the court. And secondly, to establish a precedent that is worthy to be followed by others coming after, be it by higher courts called upon to review the decision or other parties affected by a similar problem.
It is admirable that the Court courageously ruled against the state and gave justice to Ms Armstrong. However, I respectfully submit that the judgment has left the law in a state of confusion. The judgment in Armstrong was not appealed. Yet, beyond Ms Armstrong, it is not clear if the decision applies to all public officers appointed after April 4, 1983, or only to some and, if to some, to which some.