Dianne Jhamilly Hadeed v The Attorney General of Trinidad and Tobago

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice V. Kokaram
• Judgment Date: 25 July 2019
• Neutral Citation: TT 2019 HC 230
• Court: High Court (Trinidad and Tobago)
• Docket Number: Claim No. CV2018-02726
• Date: 25 July 2019

IN THE HIGH COURT OF JUSTICE

Before

the Honourable Mr. Justice V. Kokaram

Claim No. CV2018-02726

IN THE MATTER OF THE CONSTITUTION OF TRINIDAD AND TOBAGO

AND

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 14 OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO ALLEGING THAT THE PROVISIONS OF THE SECTION 4 THEREOF HAVE BEEN, ARE BEING, AND ARE LIKELY TO BE ABROGATED ABRIDGED OR INFRINGED

AND

IN THE MATTER OF SECTION 15 (1) A OF THE LEGAL PROFESSION ACT CHAPTER 90:03

Between

Dianne Jhamilly Hadeed

Claimant

and

The Attorney General of Trinidad and Tobago

Defendant

The Law Association of Trinidad and Tobago

First Interested Party

The Registrar of the Supreme Court of Trinidad and Tobago

Second Interested Party

Appearances:

Mr. Christopher R. Rodriguez, Ms. Raisa Ceasar, Ms. Sparkle Kirk instructed by Mr. David R. Francis, Attorneys at Law for the Claimant.

Mr. Fyard Hosein S.C. leads Ms. Rachel Thurab and Mr. Roshan Ramcharitar instructed by Ms. Laura Persad and Ms. Khadine Matthews Attorneys at Law for the Defendant.

Mrs. Deborah Peake S.C. leads Mr. Ravi Heffes-Doon and Ms. Tamara Toolsie instructed by Ms. Kerlene Alfonso, Attorneys at Law for the First Interested Party.

Mr. Ian L. Benjamin S.C. leads Mr. Pierre A. Rudder instructed by Ms. Michelle Benjamin and Mr. Ryan Grant Attorneys at law for the Second Interested Party.

Constitutional Law — Fundamental rights and freedoms — Rights to liberty and property — Equality before the law — Equal treatment by public authorities — Whether section 15(1A) of the Legal Profession Act was unconstitutional — Decision by Registrar of the Supreme Court that the applicant was ineligible to apply for admission to practice law pursuant to section 15 (1A) of the Legal Profession Act was unconstitutional — Legitimacy and proportionality test — Whether limitation on rights was disproportionate and illegitimate — Legitimate expectation.

TABLE OF CONTENTS

Page No

Introduction	4
Part I- Factual and Legislative Backdrop	11
Ms. Hadeed's stalled journey to admissions	12
The General Scheme of Admissions to Practise Law in T&T	17
A Caribbean Context- The RTC and the Immigration (Caribbean Skilled Nationals) Act	38
Part II- Constitutional Interpretation 44	44
“Who am I”- Origin and Nationality: A core feature of identity	44
Literal Meaning	54
Context and Structure	55
Jurisprudence	55
Sociological Factors: Who is this St. Lucian?	57
Developing Norms and International Sources	61
Part III- Inequality and Discrimination	68
Suitable Comparators	82
Legitimacy and the Proportionality Test	86
The Limitation on Rights is Disproportionate and Illegitimate	89
Shut Out Laws and Multiple Pathways	95
Protection of the Law	98
Right to Liberty and Enjoyment of Property	101
Legitimate Expectations	104
Part IV- Remedy	107
Damages	108
Declarations, Severance and Modification	112
A Therapeutic Solution	119
Conclusion	122

INTRODUCTION

“Prospero, you are the master of illusion .

1 This constitutional claim 2 serves to test our notions of identity, nationality and self. Emerging from a turbulent colonial past, the “peoples” of the Caribbean have struggled to forge a new identity and new image of “self” as independent States sharing at the same time the common goal of regional integration. Having liberated ourselves from our “European Prosperos” we find ourselves, “Calibans” a unique people, an eclectic mix of races, “in a shared genetic confusion, common products of a ‘complex womb’ of history” 3, now trying to assimilate yet another identity transcending nationalism to regionalism. When it comes to building regional projects such as a Caribbean legal profession, can the assertion of a “Trinbagonian” identity justifiably trump the requirements of a regional construct? This underlies the main question in this constitutional motion: Is section 15(1A) of the Legal Profession Act Chapter 90:03 ( LPA) which treats other (CARICOM) nationals differently by restricting their admission to practise law, discriminatory or reasonably justifiable?

2 The task of interpretation of our constitutional human rights and freedoms which guarantees fundamental human rights irrespective of race, colour, sex, religion or origin, is itself a continuous interrogation of our identity. A Constitution which has served the past and must serve the present and future generations, involves the Court engaging in a dialogue with contemporary and evolving standards, norms and values that shape our society and common humanity. Our identity is shaped by unique cultural social experiences personal to oneself and not imposed by the perception and categorisation of others. What is our Trinidad and Tobagonian society? What are our aspirations? What standards of conduct should we ascribe in shaping our democratic State? The answer frequently is found by reference to our preamble of our Constitution 4. It can be found in our history, our sociology, our philosophy. What society do we envision when we proudly declare “Here every creed and race find an equal place”? Constitutional interpretation of human rights is a task of defining ourselves through our own reflection on the dignity of the human person and the equal and inalienable rights of the human family, regardless of our personal idiosyncrasies or background. Is this a Trinidad and Tobago for all or some?

3 For the Claimant, Ms. Dianne Jhamilly Hadeed, a “CARICOM 5 national 6”, identity is at the heart of her claim in this constitutional motion. Her claim is that she is being deprived of an opportunity to practise law in Trinidad and Tobago based on a restriction against nonnationals prescribed in section 15(1A) of the LPA. By that section, despite her having the required qualifications to be admitted to practise law in this jurisdiction only, a line has been drawn by Parliament between nationals entitled to access this section 15(1A) pathway and “other” non-nationals, in her case, a St. Lucian of Grenadian birth who are not.

4 In her claim for constitutional relief she seeks declarations that section 15(1A) of the LPA breaches her fundamental rights of liberty and property, equality before the law and equal treatment by public authorities under sections 4(a), (b) and (d) of the Constitution of Trinidad and Tobago. To the extent that section 15(1A) applies and confers a benefit on

nationals of Trinidad and Tobago only and has the effect of depriving her by reason of her origin, of those constitutional rights enshrined she contends it is null, void and of no effect. She claims that the decision of the Registrar of the Supreme Court (the Registrar) made by way of letter dated 10 ^th April, 2018, that she is ineligible to apply for admission to practise law pursuant to section 15 (1A) is also unconstitutional, null, void and of no effect and that she has been deprived of her legitimate expectation to be admitted to practise as an Attorney-at-Law in Trinidad and Tobago. By way of remedies, she also seeks damages and an order modifying section 15(1A) of the LPA so that its provisions apply to “any person” or “CARICOM nationals” and not just “nationals” of Trinidad and Tobago

5 Although section 15(1A) of the LPA impedes a pathway to her being admitted to practise law on the basis that she is not a national of this country, there are alternative pathways to admission available to Ms. Hadeed under other provisions of section 15 of the LPA. A main condition of those alternative paths is obtaining a Legal Educational Certificate (LEC) after a period of institutional teaching. Indeed, those pathways 7 are consistent with CARICOM's goal of creating an indigenous legal practice to serve the needs of the Caribbean and fulfils the regional agreement for legal education 8. To the extent to which that agreement is part of our law by incorporation in the Council of Legal Education Act Chapter 39:50 (the CLE Act), no person, without holding that LEC, can practise law in this jurisdiction as indeed in any other CARICOM State. However, in clear breach of this law, a much shorter side route has been carved out by Parliament in section 15(1A) of the LPA exclusively for the benefit of nationals of Trinidad and Tobago to be admitted to practise law on obtaining certain qualifications, without the requirement of the LEC and which is not recognised by the regional agreement for legal education. Non-nationals remain without that benefit and must undertake the additional burden on the other available pathways to admissions.

6 This constitutional motion is about constitutional interpretation, dialectic, identity and legitimacy. It explores specifically the social grouping of “nationality” and asks the question, is it legitimate in this case to draw artificial lines between persons of different nationalities

conferring benefits on nationals to the detriment of (CARICOM) non-nationals. It explores a deeper question of the meaning of “origin” 9 and whether it can include “nationality” as an immutable characteristic of our identity. Even further, if there must be this differentiation, is there a reasonable justification for it

7 Ms. Hadeed resides here. She holds a CARICOM skills certificate and is entitled to work here indefinitely. She is guaranteed by the Immigration (Caribbean Community Skilled Nationals) Act Chapter 18:03 that despite her nationality and origin she will not be subject to any restriction on the right to engage in gainful occupation on the basis of her nationality or origin. She holds the same qualification as those other nationals who can access the section 15(1A) pathway. In those circumstances she asks why should her St Lucian nationality or Grenadian origin be the distinguishing feature to deprive her...