Francis and Hinds v The State

• Jurisdiction: Trinidad & Tobago
• Judge: Archie, C.J.,Jamadar, J.A.,Bereaux, J.A.
• Judgment Date: 14 February 2014
• Neutral Citation: TT 2014 CA 6
• Docket Number: Criminal Appeals Nos. 5 & 6 of 2010
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 14 February 2014

Court of Appeal

Archie, C.J.; Weekes, J.A.; Jamadar, J.A.; Yorke-Soo Hon, J.A.; Bereaux, J.A.

Criminal Appeals Nos. 5 & 6 of 2010

Francis and Hinds

and

The State

Appearances:

Mr. J. Singh, Mr. L. Lalla, Mr. K. Taklalsingh, Mr. D. Khan and Ms. H. Shaikh for the first appellant.

Ms. A. Francis for the second appellant.

Ms. D. Seetahal S.C. and Mr. G. Busby for the respondent.

Ms. P. Elder S.C., Ms. S. Chote S. C., Mr. R. Persad, Ms. M. Solomon-Baksh, Mr. J. Heath and Mr. R. Morgan for the Criminal Bar Association.

Constitutional law - Court of Appeal — Determination as to the approach to be used to decide whether legislation is consistent with the constitution of Trinidad and Tobago — Minority Opinion on the constitutionality of sections 5(5) and 61 of the Dangerous Drugs Act — Mandatory minimum sentence — Whether sections 5(5) and 61 of the Dangerous Drugs Act were inconsistent with sections 4,5 and 13 of the Constitution — Reasonably justified — Saving Law Clause — Consideration of Kenneth Suratt v. Attorney General [2007] UKPC 55; Public Service Appeal Board v. Omar Maraj [2010] U.K.P.C. 29; Hinds v. R [1981] AC 61; Thornhill v. Attorney General [1977] A.C. 195; Director of Public Prosecutions v. Nasralla [1967] 2 A.C. 238; Roodal v. The State [2003] U.K.P.C. 78; Ishmael v. Attorney General Ciiv App No. 140 of 2008; de Freitas v. Permanent Secretary [1998] 53 W.I.R. 131; Norther Construction v. Attorney General H.C.A. 733 of 2002 and Civ App No. 100 of 2002; Morgan v. Attorney General [1987] WIR 396; Worme v. Police Commissioner of Grenada [2004] 63 W.I.R. 79; Boyce and Another v. R/ Matthew v. The State [2004] U.K.P.C. 32/33; Nyambirai v. National Social Security Authority [1996] 1 L.R.C. 64 — Fundamental right to pursue a legitimate aim — Whether the limitation was proportionate to the aim — Proportionality and balancing exercise — Approach to section 13 of the Constitution — Always speaking principle boxed in — Whether there were three situations where it was possible for legislation to limit the declared fundamental rights and freedoms — Whether parliament could be permitted by a simple majority to override human rights provisions once the proportionality test was satisfied — Intention of parliament.

JOINT OPINION OF

Archie, C.J. AND Jamadar, J.A.

INTRODUCTION

1 This joint opinion is a minority opinion on the single issue of whether in determining when legislation is inconsistent with the Trinidad and Tobago Constitution, a proportionality test as suggested by Baroness Hale in Kenneth Suratt v. Attorney General [[2007] UKPC 55, at paragraph 58.] is an appropriate means for resolving that issue – in the context of legislation passed by a simple majority and not pursuant to section 13 of the Constitution, or for the purposes of the first stage analysis on a section 13 challenge to the constitutionality of an Act (on the basis that though inconsistent and rendered effective, it is not reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual).

2 In concluding that such a test is not appropriate or constitutionally legitimate in Trinidad and Tobago, we have advanced arguments based on socio-political and historical contexts, the Constitution itself as text, comparative analysis, policy and precedent. We have placed value on the wisdom and prescience of the framers of both the 1962 and 1976 Constitutions; they, in our opinion, rightly anticipated the particular social, economic and political tensions and challenges that would have faced a newly Independent Trinidad and Tobago, an emerging Republican State and the dynamic twenty-first century young, developing society that is the multi-ethnic, multi-religious and politically divided potpourri we know and experience as Trinidad and Tobago. In particular, we recognise and honour that our Constitution is unique in the Caribbean and purposefully so. It sets at the heart and centre of the divide between governmental intervention and human endeavour, entrenched human rights provisions. It empowers the Judiciary with the duty and responsibility to be the final arbiter of this tension and balance. In our opinion, our Constitution elects and enacts a clear bias – a permissive preference for the upholding of the fundamental rights provisions (stated by deliberate choice in absolute and unfettered terms) and clear, specific and concrete restraints on the power of the Executive or the Legislature to limit or restrict those rights and freedoms. We are clear, that in Trinidad and Tobago Parliament is not supreme, only the Constitution is supreme. Further, that the Constitution protects the fundamental rights and freedoms by restricting Parliament's power to encroach on then.

3 This protection of the rights and freedoms from Executive or Legislative encroachment is provided for in the Constitution itself, by creating clear though subtle and finely balanced processes that allow Executive or Legislative encroachment in only specified and limited circumstances. In our opinion, the proportionality test suggested in Suratt constitutes a reading into the Constitution of a ‘reasonably required’ general limitation of the fundamental rights and freedoms, which is not in the text and was deliberately left out.

4 In any event, we see proportionality as more akin to reasonability, which is the standard set in section 13 – reasonable justifiability. We do not agree, as Bereaux, J.A. seems to suggest, that inconsistency is the standard under section 13. We are of the firm view that the standard is reasonability. In our opinion, inconsistency with the Constitution simpliciter, is the trigger that invokes section 13 and provided that its requirements are met, otherwise inconsistent legislation is rendered effective. However, even inconsistent legislation that is rendered effective by section 13 must also be reasonably justifiable. Proportionality is therefore a useful tool in determining reasonable justifiability for the purposes of the stage two section 13 analysis. It is consequently inapt for determining inconsistency (the stage one analysis) in the context of section 13 of the Trinidad and Tobago Constitution.

5 What, therefore, is ultimately at stake in the differences between our opinion and that of the majority, is whether the power of Parliament and the Executive will be enlarged at the expense of the protection of the fundamental rights and freedoms, or whether the protection of the rights will be preserved and the power of Parliament and the Executive limited. In our opinion the Constitution provides for the latter, which we uphold; whereas the opinion of the majority permits (by way of judicial intervention) the former, which we repudiate.

6 In our opinion, the non-negotiable constitutional values that the society has through careful deliberation declared as fundamental, are protected from legislative encroachment unless undertaken by specified means constitutionally provided and are therefore to be studiously appreciated and followed.

7 This extraordinary five-member panel of the Court of Appeal was convened, in part, to resolve these constitutionally important issues. Regrettably, we are divided, but nevertheless we hope that this discourse will advance the dialogue on the issue and that it would be decisively resolved in the near future.

8 We have had the benefit of reading the draft judgment of Bereaux, J.A. and we agree with his reasoning and decisions, except where the contrary is indicated in this opinion. We disagree with the suggestion that the issue we have identified is somehow irrelevant to the determination of these appeals. In our opinion it is unavoidable, as the first stage analysis on a section 13 challenge demands a determination of whether the provisions challenged are inconsistent with the Constitution (see issue (c) in paragraph 9 below). We also disagree that the jurisprudence in Hinds v. R or in Thornhill v. Attorney General is irrelevant to the issue at hand. Distinguishing these cases on narrow legalistic grounds, overlooks the fact that in these early constitutional cases, the highest Courts of the Caribbean nations grasped the opportunity to examine and carefully explain, the meanings and effects of key interlocking provisions in Caribbean Constitutions. This jurisprudence is of real value and a treasure-house of understanding and insights, not to be superficially passed over.

9 The general issues raised in these appeals may be condensed into five core issues:

• (a) Whether the conjoint effect of sections 5(5) and 61of the Dangerous Drugs Act [Chap. 11:25, Laws of Trinidad and Tobago.] creates a mandatory minimum sentence for the offences of “trafficking in dangerous drug or of being in possession of a dangerous drug for the purpose of trafficking”, of a fine of $100,000.00 and a term of imprisonment for 25 years

• (b) If sections 5(5) and 61 of the Dangerous Drugs Act create a mandatory minimum sentence as stated, whether such a sentence violates the doctrine of the separation of powers.

• (c) If sections 5(5) and 61 of the Dangerous Drugs Act create a mandatory minimum sentence as stated, whether such a sentence is inconsistent [See sections 2, 5 and 14 of the Constitution.] with the constitutionally entrenched fundamental rights and freedoms declared and protected in sections 4 and 5 of the Constitution of the Republic of Trinidad and Tobago.

• (d) If the mandatory minimum sentence as indicated is inconsistent with any of the fundamental rights and freedoms stated, whether sections 5(5) and 61 of the Dangerous Drugs Act are effective notwithstanding, it not having been demonstrated (by the appellants) that those inconsistencies are not reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual (the Dangerous Drugs Act having been expressly declared to have been passed...