Dominic Suraj; Satyanand Maharaj v The Attorney General of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr Justice Ronnie Boodoosingh |
| Judgment Date | 11 September 2020 |
| Neutral Citation | TT 2020 HC 260 |
| Court | High Court (Trinidad and Tobago) |
| Docket Number | Claim No. CV2020-01370 |
| Date | 11 September 2020 |
IN THE HIGH COURT OF JUSTICE
Before the Honourable Mr Justice Ronnie Boodoosingh
Claim No. CV2020-01370
Claim No. CV2020-02223
In the Matter of an Application by Dominic Suraj and Others for Administrative Orders Pursuant to Part 56.7 and Under Section 14(1) of The Constitution of The Republic of Trinidad and Tobago for Contravention of The Claimants' Rights
Mr Anand Ramlogan SC leading Ms Renuka Rambhajan, Mr Douglas Bayley, Mr Jared Jagroo and Mr Che Dindial instructed by Mr Ganesh Saroop and Mr Vishaal Siewsaran for the Claimants
Mr Reginald Armour SC leading Mr Rishi Dass, Mr Raphael Ajodhia, instructed by Ms Svetlana Dass, Ms Savi Ramhit, Ms Diane Katwaroo and Ms Lianne Thomas for the Defendant
The world is in the midst of a pandemic. There are few parts of the inhabited planet left untouched. The spread of a highly contagious virus has been rapid and pervasive. Governments and citizens all over have had to act with expedition with measures to contain it. Borders have been closed; some freedoms have been curtailed and measures such as sanitising, wearing of face coverings and social distancing have quickly become part of what is called a new normal.
Much scientific work is being done to find out about the virus and to develop an effective vaccine for it. There have been shortages of medical equipment, services and supplies. Health care systems and personnel have been placed under strain. There have been many deaths and lasting effects on many infected persons. The advice of scientists has led to changes in the approach being taken with time. We have all become used to almost daily briefings about changes in approach to try to contain the spread of the virus. There has been economic dislocation and disruption of how we live.
In the midst of the response, and with persons affected in many different ways, there has been much public debate about what should be done; what is working and what is not. There has, at times, been tension between government and citizens or interest groups. Some citizens are prepared to go along with the changes and curtailment of public activity. Others are less willing. They see their lives being disrupted. They question the need for certain measures and are prepared to interrogate perceived inconsistencies in approaches or to challenge the necessity of some measures.
There is also a debate about what the response should be at all. On one end, advocates of a rights-based perspective say that persons should be allowed to go about their business as best as they can. They believe people should be allowed to work and engage in leisure as they did before. Some will get the virus. They accept more may die, but that this time is not unlike any other time when we have been faced with a pandemic. They think there is overreach by the State and some see the response as a grab for power to impose greater controls on the population at large. On the other end, there is the view that strong measures have to be taken to curtail the spread so that the fewest numbers are infected and die until a viable vaccine solution can be arrived at. They are prepared to go along with the curtailment and disruption to life as they see a greater good in the preservation of life and health. The question for many is, where should the balance be struck?
All of this has brought into focus the role of the State and its different arms. At the forefront has been executive action. In some cases the Parliament has been involved in passing laws. The courts are left as interpreters of the law and to be the arbiter between citizen and State when persons are charged or where there has been a challenge to the curtailment of rights. We in Trinidad and Tobago, like the rest of the world community, have had to respond. The tensions and debates are also evident here in our robust public opinion. The conflict has brought these claims before the court.
There are two claims being considered together. They both involve the validity of the Public Health [2019 Novel Coronavirus (2019-nCoV)] Regulations, 2020 (Regulations). By Legal Notice No. 54, dated 19 March 2020, the first incarnation of the Regulations came into force. There has been successive Regulations since then, each numbered accordingly. Therefore, following the first Regulations, is The Public Health [2019 Novel Coronavirus (2019-Ncov)] ( No. 2) Regulations, 2020, with each later set of Regulations revoking the previous. These Regulations have been made under the Public Health Ordinance Ch. 12 No. 4 which has been in existence long before Independence and which has been amended and used at different times to deal with public health matters and pandemics.
In claim number CV2020-01370 (the Dominic Suraj claim or the Suraj claim), the five claimants were arrested and charged on 9 April 2020 for breaching regulation 3 (1) (b) of the Regulations ( No. 9). The Claimants argue that the charges were unlawfully laid, because the Regulations were unlawful and /or unconstitutional and hence null and void and of no legal effect.
In claim number CV2020-02223 (the Satyanand Maharaj or Maharaj claim), the claimant is a Hindu Pundit. He claims that the imposition of Regulations 2 (2) and 2 (3) of the Regulations ( No. 23) has affected his ability to host his religious services and functions and practice his religion in the manner he usually does and therefore they breach his fundamental rights under sub-sections 4 (a), (b) and (h) of The Constitution of Trinidad and Tobago, Chap. 1:01.
The court certified as issues in the Dominic Suraj claim:
– Whether the Regulations under which the claimants were charged, breach the fundamental rights provisions of the Constitution.
– Whether the matters addressed in the Regulations were required to be made or approved by Parliament and in what manner.
– Following from i and ii, and considering any relevant issues of if they are reasonably justifiable or proportionate, whether the Regulations are unconstitutional, void and of no effect.
In the Satyanand Maharaj claim, the court certified as issues:
– Whether Regulations 2(2) and 2(3) of the Public Health [2019 Novel Coronavirus 2019-nCov] (No. 23) Regulations of 2020 are unconstitutional, illegal, null and void and of no legal effect.
– Whether Regulations 2(2) and 2(3) of the Public Health [2019 Novel Coronavirus 2019-nCov] (No. 23) Regulations of 2020 have breached the claimant's constitutional rights under section 4 (a), (b) and (h) of the Constitution.
– Any consequential matters arising therefrom, except damages.
In the Dominic Suraj case, Mr Ramlogan contends that the Regulations have infringed the claimants' constitutional rights by the restrictions it has imposed on gatherings in a public place exceeding five people, and other restrictions as detailed by the different deponents.
The Regulations were made under section 105 of the Public Health Ordinance (Ordinance). Section 132 of the Ordinance requires any regulations to be published by being gazetted. Section 133 allows entry onto premises for certain purposes in connection with the Ordinance. The claimants have accepted that the Regulations have been gazetted and the process outlined in the Ordinance has been followed. The issue relates to whether the measures or all of the measures contained in the Regulations can properly be the subject of Regulations made under the Ordinance or whether they require Parliamentary approval because of the apparent curtailment of rights.
The basic contentions of the claimants are:
– The measures in the relevant Regulations are plainly inconsistent with fundamental rights enshrined in sections 4 and 5 of the Constitution as they “abrogate, abridge and infringe” and are inconsistent with the claimants' constitutional rights.
– The Regulations were not made and/or approved or passed with a special majority by Parliament and are therefore outside the scope of section 13 of the Constitution.
– If the content of these Regulations had to be made into law, the proper course was for Parliament to make them and have them passed by a special majority.
– Alternatively, the relevant Regulations are a disproportionate and unjustified interference with the claimants' constitutional rights.
Counsel for the claimants went further to discuss the cases interpreting legislation which are inconsistent with fundamental rights and freedoms. They relied on reasoning in the case of Francis and another v The State of Trinidad and Tobago (2014) 86 WIR 418.
The court in that matter distinguished between two approaches for interpreting the issues: the approach used in the cases of Hinds and others v The Queen [1976] 1 All ER 353 and Terrence Thornhill v The Attorney General of Trinidad and Tobago [1981] AC 61 in contrast to the later decisions of Suratt and others v The Attorney General of Trinidad and Tobago [2007] UKPC 55 and Public Service Appeal Board v Maraj [2010] UKPC 29.
In the Satyanand Maharaj claim, the claimant's main contention is with regulation 3(7) of the Regulations and the Regulations that followed. It specifically provides that places of worship that complied with the Guidelines for Places of Worship (Guidelines) issued by the Ministry of Health were not in contravention of the Regulations.
This claimant argues that this provision violates the principles of legal certainty, the rule of law and the separation of powers. These Guidelines are not part of the Regulations and are not contained in a Schedule. The Guidelines are made by public officers and are subject to change. They have not been subject to any...
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