Respect for the rule of law is embedded in Grenada’s Constitution, including the establishment of the independent judiciary. It is the responsibility of the courts to determine disputes brought before them, in accordance with the law.

It is important for the effective functioning of any system of government that each branch of government recognizes the importance of the separation of public powers between the executive, legislative and judicial branches, and supports the role that each must play. With regards to the relationship between the executive and judicial branches, it is particularly important that actions of the Executive, including the Cabinet, do not undermine, or appear to undermine, the independent administration of justice. This affects the way Ministers interact with all parts of the justice system, from decisions to investigate or prosecute individuals, through to the operation of the courts and the status of judges and of their judgments.

Under the common law, the courts can exercise “judicial review” of executive government decisions (or refusal to take decisions) to determine whether the decision or refusal is unlawful or invalid. Most executive government decisions are able to be the subject of judicial review.

The courts are usually concerned with the process of decision-making rather than the outcome or merits of the decision. The overriding concept of fairness to all affected parties is critical.

The grounds for challenge under the law of judicial review can be broadly divided into:

1. illegality (e.g. acting outside the scope of the power; getting the law wrong, taking into account irrelevant considerations or failing to take into account relevant considerations; being motivated by an improper purpose, or acting under an invalid delegation); and
2. unfairness or procedural impropriety (e.g. breach of natural justice, bias, failure to honour legitimate expectations, lack of consultation); and, sometimes unreasonableness (in the sense that ‘no reasonable decision-maker in these circumstances could possibly make this decision’).

If a Minister is acting under the authority of a statute that vests the decision in the individual Minister, it must be clear on the record that the Minister personally took the appropriate decision. Ministers and officials should prepare Cabinet papers carefully to reflect this. They should also assume that the papers they prepare may be made available by normal discovery of documents in any court process. Where Ministers are required by statute to make individual decisions, it may be appropriate for the Minister simply to consult Cabinet colleagues on the issues and for any such consultation to be ‘noted’ as opposed to any actual decision from the Cabinet.

Members of Cabinet and public officials are required to seek guidance from the Ministry for Legal Affairs on all matters relating to the administration of justice, and to refer to any guidelines issued by the Ministry of Legal Affairs from time to time. This guidance may cover:

1. the relationship between the Executive and Judicial branches of government;
2. judicial review of Ministerial decisions;
3. the role of Government law officers;
4. the independence of criminal prosecution processes from any suggestion of political control or influence;
5. Ministerial comment on court processes and judicial decisions; and
6. procedures to be followed where a Minister is the subject of legal proceedings.