Charles v The Attorney General
| Jurisdiction | Trinidad & Tobago |
| Judge | Harris, J. |
| Judgment Date | 24 April 2012 |
| Neutral Citation | TT 2012 HC 138 |
| Docket Number | H.C.A No. S 435 of 2002 |
| Court | High Court (Trinidad and Tobago) |
| Date | 24 April 2012 |
High Court
Harris, J.
H.C.A No. S 435 of 2002
Mr. Kemraj Harrikissoon instructed by Mr. Andre Rajkumar for the applicant.
Mr. Alvin Fitzpatrick S.C. leads Ms. Farah Ali Khan for the respondent.
Constitutional Law - Fundamental rights and freedoms — Right to due process of the law — Protection of the Law — Whether disciplinary proceedings resulting in applicant's demotion were unconstitutional.
The applicant was employed with the Government of Trinidad and Tobago. As a result of disciplinary proceedings instituted against him by the Judicial and Legal Services Commission (“the JLSC”/‘complainant’) in 1999, the applicant was demoted from the rank of Deputy Chief Magistrate to Senior Magistrate. He appealed that decision of the JLSC to the Public Services Appeal Board (“PSAB”) but it was dismissed. During the hearing before the Disciplinary Tribunal (“the tribunal”) he also filed a High Court action seeking judicial review of the decision of the JLSC to prefer disciplinary charges against him and to appoint a disciplinary tribunal with respect to the hearing of those charges. This judicial review. action was dismissed. He then appealed to the Court of Appeal but the decision of the High Court Was upheld. His appeal to the Privy Council was also dismissed. The applicant has now filed a constitutional motion pursuant to Section 14 of the Constitution of the Republic of Trinidad and Tobago before the High Court seeking inter alia damages and declaratory relief namely:
-
(a) A declaration that the appointment of the Honourable Mr. Justice Stanley John as the Disciplinary Tribunal to hear and determine disciplinary charges against the applicant is unconstitutional, illegal, null and void.
-
(b) A declaration that the Judicial and Legal Service Commission failed and/or refused and/or neglected to follow the procedures stipulated in the Public Service Commission Regulation prior and subsequent to deciding to exercise disciplinary control over the applicant.
-
(c) A declaration that the purported hearing of disciplinary charges against the applicant by the Disciplinary Tribunal (Justice Stanley John) was unconstitutional, illegal, null and void.
-
(d) A declaration that the Disciplinary Tribunal (Justice Stanley John) failed and/or refused and/or neglected to give the applicant a fair hearing in the conduct of the proceedings before it.
-
(e) A declaration that the decision of the Disciplinary Tribunal (Justice Stanley John) was unconstitutional, illegal, null and void and/or made in excess and/or without jurisdiction.
-
(f) A declaration that the decision of the Public Service Appeal Board which affirmed the decision of the Disciplinary Tribunal (Justice Stanley John) is unconstitutional, illegal, null and void and/or ultra vires and/or made in excess and/or without jurisdiction.
-
(g) A declaration that the decision of the Judicial and Legal Service Commission to reduce the rank of the applicant to a Senior Magistrate is unconstitutional, illegal, null and void.
-
(h) A declaration that the Disciplinary Tribunal (Justice Stanley John) erred in law in refusing to allow the applicant to be represented by Counsel before it.
-
(i) A declaration that the applicant had a constitutional right to be represented by counsel at the hearing before the Disciplinary Tribunal.
-
(j) A declaration that there was no equality of arms at the hearing before the Disciplinary Tribunal.
-
(k) A declaration that the provisions of the Public Service Commission Regulations that precluded the applicant from being represented by Counsel are unconstitutional, illegal, null and void.
-
(l) A declaration that the applicant was entitled to be equally treated by the Disciplinary Tribunal as that of the Judicial and Legal Service Commission.
The applicant identified the following issues in its written submissions:
-
i. Whether there were breaches of procedural provisions prior to and including the appointment of a disciplinary tribunal which amounted to a denial of a fair hearing;
-
ii. Whether the applicant was denied the right to a fair hearing before the disciplinary tribunal and the Public Service Appeal Board;
-
iii. Whether the applicant was denied the right to a fair hearing because he was precluded from having legal representation and whether this resulted in an alleged “inequality of arms”;
-
iv. Whether the applicant was denied a fair hearing because the Disciplinary Tribunal acted as both judge and prosecutor';
-
v. Whether the applicant was denied a fair hearing because the Disciplinary Tribunal followed the wrong standard of proof;
-
vi. Whether the applicant was denied a fair hearing because the Disciplinary Tribunal failed to consider fairly the evidence before it and whether there was alleged judicial interference;
-
vii. Whether the Public Service Appeal Board failed to examine the evidence before it in the form of the record and confirmed a decision that was a nullity.
Right to a fair hearing within a reasonable time:
The applicant contends that he was entitled to a fair hearing within a reasonable time following the ruling of Justice M. Baird in The State v. Mohammed & Richardson HCA No. 131/95. In his judgment Justice Melville Baird referred to Section 5 (2) (e) of the Constitution which states that:–
“Parliament may not deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.”
He concluded that this right must be construed to include the right to a fair trial within a reasonable time.
The applicant submits that the ruling in this case has a broad application and was at no point limited to Criminal proceedings unlike the ruling in the case of DPP v. Tokai [1996] A.C. 856. In the case of Tokai it was held that in Trinidad and Tobago there is no right to a Fair Trial within a Reasonable Time. However, the applicant respectfully submits that this ruling has no application in civil proceedings and as a result Tokai is distinguishable from this present case. Tokai was directed specifically at Criminal proceedings and was not concerned with Section 5(2)(e) of the Constitution, The Plaintiff further refers to the perception of their Lordships in the case of Tokai that Section 5(2)(e) was not relevant in that case (p. 862).
The applicant also refers to the following provisions within the Constitution that according to Justice Melville Baird in the case of The State v Mohammed & Richardson H.C.A. No. 131/95 would include the right to a fair trial within a reasonable time:
-
(a) Section 4(a) which states that the Right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law, “due process of law” must be interpreted to include the right to a fair trial with a reasonable time,
-
(b) Section 4(b) the Right of the individual to equality before the law and the protection of the law, “protection of the law” must be interpreted to include the right to a fair trial within a reasonable time.
The applicant submits that the Legal Service Commission's failure to conduct a hearing of the matter within a reasonable time breached his Constitutional right to a fair trial and to protection of the law as well as his right not to be deprived of enjoyment of property except by due process of the law.
The applicant further refers to the prescribed time constraints set by the Public Service Commission. The applicant submits that these time constraints are mandatory and are intended to ensure that an accused person receives an efficient hearing within a reasonable period of time as part of his Constitutional Rights. He submits that the Legal Service Commission failed to abide by these regulations thus breaching the applicant's Constitutional right to a fair heating and rendering all subsequent proceedings a nullity.
The applicant was initially advised of the complaints against him on the 8th day of April 1998 and the hearing commenced on the 10th day of May 1999 more than one year later. The applicant had therefore reasonably presumed that the matter was no longer being pursued due to this substantial delay or the absence of any explanation for a delay during that time. The applicant relies upon the ruling in the case of The State v Mohammed & Richardson as authority for the view that a failure to hear a civil matter within a reasonable period of time constitutes a breach of an individual's Constitutional Rights. The applicant refers to the following breaches of the Regulations:
-
(i) Regulation 90(3) was breached in that the investigating officer wrote to the applicant one day after the prescribed limit of three days.
-
(ii) Regulation 90(4) obliged the investigating officer to require persons with direct knowledge of the matters under investigation to make written statements within seven days, for the information of the Commission. This should have been done by the 29th day of May, 1998. In breach of this regulation, statements were not received until the period of the 8th day of June, 1998 to the 18th day of June, 1998; 10–18 days after the prescribed limit.
-
(iii) Regulation 90(5) required that the investigating officer forward to the Commission all information obtained together with their own report within 21 days of their appointment. This should have been done by the 12th day of June, 1998. No extension of time was sought by the respondent despite the existence of this provision within the Regulations. However, the report was in fact not submitted to the Commission until the 13th day of September 1998, 61 days after the prescribed time limit. The...
To continue reading
Request your trial