Isaiah Prince v The Attorney General of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Justice Kevin Ramcharan |
| Judgment Date | 27 June 2021 |
| Neutral Citation | TT 2021 HC 299 |
| Docket Number | Claim No: CV2020-00732 |
| Court | High Court (Trinidad and Tobago) |
| Year | 2021 |
Before the Honourable Mr. Justice Kevin Ramcharan
Claim No: CV2020-00732
IN THE HIGH COURT OF JUSTICE
(VIRTUAL HEARING)
Mr. Jagdeo Singh, Mr. Kiel Taklalsingh, Ms. Karina Singh instructed by Ms. Chelsea John for the Claimant
Mr. Rishi Dass, Ms. Maria Belmar-Williams and Ms. Sasha Sukhram instructed by Ms. A. Ramroop and Ms. Tiffany Kissoon for the Defendant
On the 22 nd day of March, 2018, following the execution of a search warrant, the Claimant was charged with possession of camouflage clothing contrary to Section 213 (c) of the Customs Act, Chapter 78:01. He now seeks to challenge the constitutionality of the Legal Notice 33 of 1984 proclaimed by the then President His Excellency Sir Ellis Clarke, empowered under Section 44 of the Customs Act, which criminalizes the importation of Camouflage Pattern Material on the basis that it is (1) inconsistent with Section 53 of the Constitution of Trinidad and Tobago (hereinafter “the Constitution”) which vests the responsibility for making laws in Parliament; (2) inconsistent with the tenets of a democratic society pursuant to Section 1 of the Constitution; (3) void pursuant to Section 2 of the Constitution; (4) it is unconstitutionally vague and/or overbroad and (5) it violates his constitutional rights to enjoyment of property, liberty and protection of the law pursuant to Sections 4 and 5 the Constitution.
By Fixed Date Claim Form dated the 19th day of February, 2020, the Claimant claims against the Defendant for the following reliefs:
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a. A declaration that Legal Notice No. 33 of 1984, which purports to criminalise the importation of “camouflage pattern material” by way of Presidential Proclamation, is inconsistent with the provisions of the Constitution (namely Section 53) and is therefore, void pursuant to Section 2 of the Constitution.
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b. A declaration that Legal Notice No. 33 of 1984, which purports to criminalise the importation of “camouflage pattern material” is unconstitutional in that it offends the Rule of Law and/or Principle of Legality and/or Separation of Powers doctrine thereby inter alia contravening Section 1 of the Constitution and is therefore, null, void and of no effect pursuant to Section 2 of the Constitution.
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c. A declaration that “camouflage pattern materials” listed as a prohibited good by Legal Notice No. 33 of 1984, is unconstitutionally vague and/or overbroad and therefore, null, void and of no effect.
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d. A declaration that Legal Notice No. 33 of 1984, being vague and/or overbroad and/or contrary to Section 53 of the Constitution and/or contrary to the principle of Separation of Powers and/or principle of legality, infringe Section 1 of the Constitution of Trinidad and Tobago in that it is inconsistent and/or incompatible with the characteristics, features and tenets of a democratic state and therefore, void and of no effect pursuant to Section 2 of the Constitution.
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e. A declaration that by subjecting the Claimant to stand trial to answer to the charges of possession of camouflage clothing pursuant to Legal Notice No. 33 of 1984 and/or Section 213 (c) of the Customs Act 1938, Chapter 78:01 is in contravention of the Claimant's constitutional rights to enjoyment of property, liberty and protection of the law pursuant to Sections 4 (a) and 5 (2) (e) of the Constitution of Trinidad and Tobago.
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f. An order that damages for breach of constitutional rights be assessed.
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g. Costs.
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h. Such further and/or other relief that this Honourable Court deems fit.
In support of the Fixed Date Claim Form, the Claimant filed an affidavit on the 19th day of February, 2020. On behalf of the Defendant, the Affidavits of Gary Joseph, PC Williams Rg #17926 and Dexter Laurence Francis were filed on the 28 th day of August, 2020.
The Claimant relies on the following grounds upon which he bases his Fixed Date Claim Form:
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a. Legal Notice No. 33 of 1984, is unconstitutional in that it is contrary to Section 53 of the Constitution. Laws, in particular those which provide for criminal sanctions can only be enacted by Parliament for peace, order and good governance of Trinidad and Tobago pursuant to Section 53. The President cannot on his own by proclamation and/or any other means criminalise conduct of citizens without the approval of the democratically elected Parliament.
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b. Legal Notice No. 33 of 1984, offends the Rule of law, principle of Separation of Powers and/or principle of legality. It is inconsistent with the characteristics, features and tenets of a democratic society in which a democratically elected Parliament must enact criminal laws pursuant to the democratic process.
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c. Legal Notice No. 33 of 1984 and its effect when implemented in conjunction with Section 44 and Section 213 (c) of the Customs Act is overbroad and/or overreaches and/or is too sweeping as it criminalises conduct which has no rational connection to the purpose and intent of the law which deems specific items to be prohibited. It thereby criminalises ordinary and/or harmful and/or inoffensive conduct of the citizenry. The offensive conduct of possession and/or wearing attire resembling that of the Defence Force is captured by Section 98 of the Summary Offences Act 1921 and/or Section 219 of the Defence Act 1962.
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d. The phrase “Camouflage Pattern Material” and/or the Legal Notice No. 33 of 1984, is unconstitutionally vague, uncertain and contrary to the Rule of law which ought to be struck out. In any event it is contrary to Section 1 of the Constitution and is null and void. Based on the Legal Notice No. 33 of 1984, a citizen cannot predict and/or understand and/or have fair notice of what conduct could lead to sanctions.
On the 21 st day of March, 2018, he voluntarily presented himself to the West End Police Station after receiving information for being wanted in connection with an investigation. On the following morning around 4:30 am a search warrant was executed at his mother's residence in Diego Martin where she resided with his younger brother. At that time the Claimant lived with his grandmother in Petit Valley.
While the search was being conducted in the bedroom occupied by his brother, two (2) pairs of camouflage pants, one (1) long and one and three-quarter (1 3/4) were found in a chest of drawers. Even after informing the police that they did not belong to him. However, he was charged with possession of camouflage clothing contrary to Section 213 (c) of the Customs Act.
The Legal Notice No. 33 of 1984, which criminalises the possession of camouflage pattern material has led to the criminal prosecution of the Claimant along with other citizens pursuant to Section 213 (c) of the Act. The Customs Act does not define or specify the type or types of camouflage pattern materials that are illegal under the Customs Act. In fact the Act does not make reference to camouflage at all.
Further, the Comptroller of Customs has published a document on its website which purports to deem as illegal pursuant to the Legal Notice No. 33 of 1984, a variety and/or heterogeneous items of clothing inclusive of various articles of clothing, including caps, purses, flip-flops and high heeled boots. The said notice states that camouflage pattern material includes all items of camouflage and all colour which is very wide, broad and unspecific.
Mr. Gary Joseph is the Acting Permanent Secretary of the Ministry of National Security. Reference was made to the Commission of Enquiry appointed to enquire until the Events surrounding the attempted coup D'état of the 27 th day of July, 1990. The importation, possession and use of camouflage still gives rise to national security issues. Information from the Trinidad and Tobago Police Service over the period 2015 to the 6 th day of August, 2020, reveals that a number of offences have occurred in relation to camouflage clothing.
A search warrant was obtained on the 21 st day of March, 2018, to search the Claimant's home for firearms and ammunition to assist in ongoing investigations of a report with shooting with intent which occurred on the 19 th day of March, 2018. At 4:50 am on the following day, PC Williams met with the Claimant and took him out of the cell and carried him to his home at Roxborough Street, Diego Martin, where he executed the search warrant.
Upon searching his room along with PC Pejias and other officers, he found in a drawer one (1) long camouflage pants and one and three-quarter (1 1/4) camouflage pants. He was subsequently charged for the offence of possession of camouflage contrary to Section 213 (c) of the Customs Act, Chapter 78:01.
He is the Chief Staff Officer in the Trinidad and Tobago Defence Force (TTDF). Reference was made to the prohibition of any person other than the member of the Defence Force from wearing the uniform or any portion of the uniforms of a member of the TTDF; or from wearing any costume or any article of clothing or apparel so closely resembling the uniform or any portion thereof, of a member of the TTDF as may cause such person to be mistaken for a member of the TTDF which would render such person liable on summary conviction to a fine of One Thousand Dollars ($1,000.00) and to imprisonment for eighteen (18) months according to Section 219 Defence Act Chapter. 14:01.
The TTDF utilises camouflage in a number of uniforms including military forces and in both training and operational manoeuvres. It is a key characteristic and component and a distinctive feature of National Security operations. It is used to eliminate visibility for tactical and defence operations not only for people but for equipment and to mask...
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