Maharaj v The Attorney General of Trinidad & Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Corbin J.A.,Hyatali C.J.,Phillips, J.A. |
| Judgment Date | 29 April 1977 |
| Neutral Citation | TT 1977 CA 22 |
| Docket Number | Civil Appeal No. 75 of 1975 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 29 April 1977 |
Court of Appeal
Hyatali, C.J.; Phillips, J.A.; Corbin, J.A.
Civil Appeal No. 75 of 1975
D. Turner-Samuels, Q.C. and Dr. F. Ramsahoye, S.C. ( Basdeo Persad-Maharaj with them) for the appellant.
J.A. Wharton, S.C., and the Ag. Solicitor-General, C. Bernard ( C. Brooks, State Counsels with them) for the respondent.
Constitutional law - Fundamental rights and freedoms — Imprisonment of attorney at law for contempt of court — Whether his fundamental rights were infringed by the manner in which it was effected.
By a Notice of Motion filed in the High Court on 17 th April 1975 Ramesh Lawrence Maharaj (the appellant) sought the following relief:
“(1) A declaration that the order of the Honourable Mr. Justice Sonny Maharaj made on this day committing the applicant to prison for contempt of court for a period of seven days is unconstitutional illegal, void and of no effect.
(2) An order that the applicant be released from custody forthwith
(3) An order that damages be awarded against the second named respondent for wrongful detention and false imprisonment
(4) All such orders, writs, including writ of habeas corpus, and directions as maybe necessary or appropriate to secure redress by the applicant for a contravention of the human rights and fundamental freedoms guaranteed to him by the constitution of Trinidad and Tobago.
(5) Such further or other relief as the justice of the case may require
(6) Costs.”
The train of events leading up to the filing of that Motion started on 17 th April 1975 when the appellant a practising member of the Bar, in the course of appearing for a client, was committed to prison for seven days for contempt of Court by Maharaj, J. On the same day proceedings were commenced by the Motion and the matter came on interlocutorily before Braithwaite, J., who released the appellant pending the hearing. The Motion came on for substantive hearing on 23 rd April 1975 before Scotty, J., who mistakenly concluded that he would be assuming an appellate jurisdiction if he entertained the Motion. I think that in so deciding he unfortunately did not take into account the wide terms used in s. 6 of the Constitution. In the events by order dated 23 rd July 1975 he dismissed the Motion and ordered the appellant to serve the remainder of the term of imprisonment imposed upon him. The appellant appealed.
Since the date of the filing of that appeal the question of the merits of the committal of the appellant has been decided by the Judicial Committee of Her Majesty's Privy Council, and argument was addressed to this Court only on the constitutional issue and on the question of damages which matters were not considered by Privy Council.
It was submitted that there are four issues to be determined - viz. (1) Whether the imprisonment, which has now been held by Privy Council to be unsupportable in law, was also effected in a manner which was an infringement of the appellant's fundamental rights under the constitution, (2) If there was such an infringement does it give rise to any, and if so what, redress (3) Is the Attorney General the, or a proper party against whom to seek redress, and if not who if anyone is the proper party? And (4) If the answer to the first three questions is favourable to they appellant what order should this Court make?
I think it would be accurate to summarise counsel's submissions in answer to these questions thus: (a) Not only was the imprisonment unsupportable in laws but it also infringed the appellant's constitutional right not to be deprived of his liberty, except by due process of law in that he was not told with, sufficient particularity what was the charge made against him; (b) s.3 of the Constitution does not apply because no law in force entitled the judge to act as he did; (c) s.6 provides redress for such an infringement; (d) the judge would be an appropriate party to seek redress against but since it is undesirable to join him then the Attorney General as Minister of Justice is the proper party; and (c) since Privy Council has declared that the appellant's imprisonment was unlawful this Court should hold that the appellant is entitled to damages and remit the matter to the High Court for assessment.
Section 1 of the Constitution of Trinidad and Tobago which is set out as the Second Schedule to the Trinidad and Tobago (Constitution) Order in Council 1962 (the Constitution), recognises and declares that there have existed and shall continue to exist inter alia the following human rights and fundamental freedoms: “(a) 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”.
Section 2, which has been expressed both in the Privy Council and in this Court as being in effect further and better particulars of s.1 reacts, so far as is material:
“2. Subject to the provisions of ss. 3, 4 and 3 of this Constitution, no law shall abrogate, abridge or infringe or authorise the abrogation, abridgment or infringement of any of the rights and freedoms hereinbefore recognised and declared and in particular no Act of Parliament shall –
(a) authorise or effect the arbitrary detention, imprisonment or exile of any person;
(b) …
(c) …
(d) …
(e) 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.
Section 6 provides for the protection and enforcement of these rights and freedoms in these terms:
“For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of the foregoing sections or s.7 of this Constitution has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action to the same matter which is lawfully available, that person may apply to the High Court for redress…
But s. 3 declares that: “Sections 1 and 2 of this Constitution shall not apply in relation to any law that is in force in Trinidad and Tobago at the commencement of this Constitution.”
In order to succeed on this Motion, therefore, the appellant must show that his imprisonment was not carried out in accordance with the due process of law and that he is entitled to recover damages.
The meaning of the expression “due process of law” and its historical origin have been dealt with by this Court in more than one recent decision, (See especially Lassalle v. The Attorney General (1974) 18 W.I.R. 794 and it will be sufficient for the purposes of this judgment to trace briefly the way in which its usage has developed in our legal terminology.
Its roots are to be found in Magna Carta (1215), Clause 39 of which declared: “No free man shall be seized or imprisoned or stripped of his rights or possessions…except by the lawful judgment of his equals or by the law of the land”.
This declaration was confirmed in 1354 in the Statute Edw. III Cap. 3 in these terms: “No man, of whatever estate or condition that he be, shall be put out of land or tenement, nor taken, imprisoned nor disinherited, nor put to death, without being brought in answer by due process of law”
These doctrines and principles were adopted into the common law of Trinidad and Tobago by virtue of s. 12 of the Supreme Court of Judicature Act 1962 which prescribe that the principles in force in England in 1848 are deemed to have been in force in Trinidad and Tobago from that date in so far as they have not been abrogated by enacted law. It will be seem therefore, that these freedoms and rights existed here before they were referred to in the Constitution.
The expression in our Constitution has its counterpart in the Canadian Bill of Rights, 1960 after which ours was in substance modelled but the term is rarely seen in English jurisprudence perhaps because there is no written Constitution. There is not much therefore in the line of English authority to guide us and little assistance will be obtained from the American decisions because of the very wide concept they have placed on it. There is however, an interesting dictum by Mc Donald, J.A. in the Canadian case of R v. Martin (1961) 35 W.W.R. at p. 339 where he said:
“It would be difficult, indeed unwise to attempt an inclusive definition of the phrase ‘due process of law’ except to state that in my view in the case at bar it means the law of the land as applied to all the rights and privileges of every person in Canada when suspected of or charged with a crime, and including a trial in which the fundamental principles of justice so deeply rooted in tradition apply.”
Prof. Holdsworth in his History of English Law Vol. 2 at pg. 215 and 216 dealing with the clauses in Magna Carta expressed the opinion that: “These clauses do embody a protest against arbitrary punishments and against arbitrary infringements of personal liberty and rights of property; they do assert a right to a free trials to a pure and unbought measure of justice”
Applying that concept to the expression as it is used in the Constitution, I turn now to consider whether the appellant has succeeded in showing that he has been deprived of any of the safeguards declared therein and in particular in section 1(a).
Section 1 declares that certain rights have always existed and are preserved.
The effect of s.2 is twofold. It declares that no law shall abrogates abridge or infringe any of those rights and freedoms and also it particularises them. It is now well settled that “no law” in this context means “no future law”. (See D.P.P. v. Nasralla [1957] 2 All E.R. 161 and de Freitas v. Benny and Others [1976] A.C. 239).
Section 6 is the one which enables an aggrieved person to seek redress and which provides the machinery...
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