Court of Appeal Judge Nolan Bereaux retires this month from the Judiciary. Bereaux’s is not a household name, perhaps not even among attorneys who do not practice at the Appeal Court. Yet, over the last 15 years, he, along with Peter Jamadar, provided judicial leadership, taking the mantle from Michael De La Bastide and Sat Sharma.
Wendell Kangaloo’s untimely passing robbed the court of another exceptional mind.
My characterisation of Bereaux might raise some eyebrows. He kept his head down. Not for him the Law School tutoring, conference presentations, journal articles, or other extra-judicial pronouncements which would put him in the limelight.
His appearance on a panel at a recent Caribbean Court of Justice conference was a rare sighting at such a forum!
His opinions were invariably well-crafted, utilising pointed sentences in judgments which were never longer than necessary and always thorough. His analyses were clinical, even terse, never verbose.
He had an excellent grasp of public law and a deep understanding of the arcane and complex public service regulations, sometimes misapplied by the service commissions themselves.
Bereaux never went off on frolics either to defend his position or to display his erudition. He was, however, inclined to incorporate long quotations, usually from English and sometimes Commonwealth cases.
This proclivity gives some hint as to Bereaux’s jurisprudential leanings. I categorise him as an inclusive legal positivist. Bereaux, in my opinion, believed strongly that judges should stay in their lanes. The job of the judge is to interpret the law, not to make it.
He lived by stare decisis, which explains his resort to copious authorities. If the law was deficient or unjust, it was for Parliament to fix it, not the judge!
This is evident in his judgment in Jason Jones, where he found that the Sexual Offences Act was not reasonably justifiable, but since, in his view, it had not been repealed and replaced, it was saved law, about which he could do nothing.
Called upon to interpret statute law, Bereaux stuck to the letter, interpreting the words literally or purposively, as required. Where Peter Jamadar, Bereaux’s judicial foil over many years, would happily import constitutional values into his interpretations of ordinary statute law or even private law (e.g, Cara Investments), Bereaux saw no need to do so (e.g. Minister of Planning and Development v JCC).
Sometimes, the law is vague or ambiguous, or precedents are sparse. In Dhanraj Singh, Bereaux, then a first-instance judge, was called upon to pronounce on the question of the independence of the office of the Director of Public Prosecutions (DPP) in light of our Republican Constitution, which has no words expressly declaring its independence.
Moreover, section 76 might be interpreted to mean that the DPP is subject to the direction of the Attorney General. Likely inspired by Lord Diplock’s ‘structure’ argument in R v Hinds, Bereaux opined: “The intention, by the re-introduction of the office of Director of Public Prosecution into the 1976 Constitution, was to make public prosecutions the responsibility of the holder of an independent office free from political control, by removing the power to initiate, undertake or discontinue public prosecutions from the control of the Attorney General, who is a political appointee. …In my judgement, it could never have been the intention to permit the office of the Director of Public Prosecutions to be subject to any form of direction on the part of the Attorney General.”
Similarly, in the recent case concerning the independence of the chairman of the NIB (Maharaj v Attorney General), Bereaux viewed NIB directors as analogous to company directors who, though selected by various interests, are enjoined, once appointed, to seek the interest of the NIB and not necessarily those who nominated them.
Hence, Bereaux was satisfied with the weaker ‘no significant connection’ test for the appointment of the chairman of the NIB, an opinion with which the majority on the Privy Council agreed.
In ambiguous cases, Bereaux declined to draw his conclusions directly from social or historical analysis.
In Dumas, for example, a truly landmark decision written by Jamadar, Bereaux (and Smith), while concurring, declined to be associated with eight paragraphs in which Jamadar adduced socio-political context in his analysis of the constitutional question.
In Francis and Hinds, while all five judges agreed on the disposition of the case, Bereaux wrote the majority judgment devoid of any socio-historical analysis, while Jamadar and Archie wrote a minority opinion, longer than the majority’s, replete with an eclectic even fanciful interpretation of our constitutional history.
It was not the case that Bereaux’s eyes were closed to our social, cultural and political realities. Rather, he believed that the judge’s perspective on those matters should not normally intrude into the adjudication of a case. There is no question that Bereaux was very socially aware, if not astute. In Attorney General v Hadeed (Legal Profession Act), Bereaux discusses the discrimination clause in section 4 of the Constitution with a lengthy socio-cultural discourse (paras 27-34).
He quotes historians Bridget Brereton and Donald Wood and discusses our diversity in erudite and familiar terms.
In the Eteck matter, Bereaux in a rare comment, stated: “It is a matter of great public notoriety that directorships in state enterprises in Trinidad and Tobago are much more a question of political patronage and cronyism, than it is about competence and in which the lines between self-interest and the public interest can become blurred.”
