Re Chokolingo ( the Constitution of Trinidad and Tobago)
| Jurisdiction | Trinidad & Tobago |
| Judge | Cross, J. |
| Judgment Date | 28 April 1975 |
| Neutral Citation | TT 1975 HC 21 |
| Docket Number | No. 81 of 1975 |
| Court | High Court (Trinidad and Tobago) |
| Date | 28 April 1975 |
High Court
Cross, J.
No. 81 of 1975
Dr. F. Ramsahoye S.C. and Mr. Ramesh Maharaj for the applicant.
Mr. Clinton Bernard Deputy Solicitor General for the Attorney General.
Mr. Algernon Wharton Q.C., Mr. Selby Wooding Q.C. and Mr. Frank Solomon for the Trinidad and Tobago Law Society.
Criminal Law - Contempt of Court
Constitutiional law - Fundamental rights and freedoms — Imprisonment for contempt of court — Whetehr a violation of applicant's right not to be deprived of his liberty or security of person except by due process of law.
The applicant is and was at all material times the Editor of a weekly newspaper “The Bomb” with a circulation in Trinidad and Tobago. On Friday 26th May, 1972 there appeared in that issue of the newspaper an artic1e headed “The Judge's wife — Short Story by David Lincott.”
Following the publication the Trinidad and Tobago Law Society instituted proceedings in the High Court – No. 1218 of 1972 — by way of motion for the issue of a “grit of Attachment or an order of Committal against the applicant for Contempt of court in respect of the said publication.
On the 24th of June, 1972 the applicant swore to an affidavit filed in these said proceedings accepting that the publication amounted to a contempt of court. At the hearing he was represented by counsel who conceded that the publication was a contempt of court.
On the 17th August, 1972 Hassanali, J. before whom the matter was heard considered the publication to be a contempt of court “as a scandalous and scurrilous attack on the Judges of the country in the charge that they accept bribes.”
The applicant was committed to prison for 21 days without hard labour and was ordered to pay the costs of the Motion as between solicitor and client.
The applicant now moves this court for
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(a) an order declaring that the order made against him by the High Court in the exercise of its criminal jurisdiction in proceedings No.1218 of 1972 is unconstitutional, null and void and of no effect;
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(b) a further order declaring that the imprisonment of the applicant suffered under the said order was illegal and a violation of the human rights and fundamental freedoms guaranteed to the applicant by the Constitution of Trinidad and Tobago and in particular by Section 1 thereof;
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(c) further order directing the Respondent the Trinidad and Tobago Law Society to pay to the applicant such damages as the court may assess to have been suffered by the applicant by his wrongful imprisonment under the said order and a further order that costs in the sum of by $11,369.27 paid by the applicant to the Trinidad and Tobago Law Society be repaid by the said Society to the applicant;
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(d) such further or other orders as the justice of the case may require;
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(d) an order that the Trinidad and Tobago Law Society do pay the costs of these proceedings.
The application is made on the grounds that:
- The publication was not a criminal contempt of the Supreme Court of Judicature or any court established for Trinidad and Tobago. 2. The publication was not a criminal contempt of the judges or of any judge performing judicial functions in Trinidad and Tobago. 3. The Order of the High Court contravened and was a violation of the provisions of the Constitution of Trinidad and Tobago and in particular section 1(a), (i) and (k) thereof, in that the order:– (a) deprived the applicant of his liberty and was made without due process of law; (b) was a contravention of the applicant's right to freedom of thought and expression; and (c) contravened the right to freedom of the press. 4. The order cannot in any event be supported by the principles of lace and practice relating to criminal contempt received in or applicable to Trinidad and Tobago and in particular the order could not properly have been made by summary process and without proceedings upon information and indictment.
The motion came on for hearing on the 14th February, 1975 but was adjourned to 28th February, 1975 on the application of counsel for the second-named respondent. At the hearing counsel for the Trinidad and Tobago Law Society raised certain objections in limine.
The main thrust of these objections was that the court had no jurisdiction since –
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(i) grounds 1,2 and 4, are appealable;
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(ii) the applicant is estopped by the Judgment of the High Court in the contempt proceedings from alleging that the publication was not a criminal contempt and grounds 1 and 2 are therefore not available to him;
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(iii) the committal of the applicant in the contempt proceedings was in virtue of an existing law and by the provisions of section 3 of the Constitution such a law is excepted from the provisions of section 1 of the Constitution which recognises and declares the human rights and fundamental freedoms which the applicant claims have been infringed.
Section 6(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 (hereinafter referred to as “the Constitution”) reads as follows:–
“6 (1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of the foregoing sections or section 7 has been, is being or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available that person may apply to the High Court for redress.”
The applicant has alleged that certain of the rights and freedoms set out in section 1 of the Constitution have been contravened in relation to him. Specifically in paragraph 6 of his affidavit in support of his application he alleges that his imprisonment was a violation of his right not to be deprived of his liberty, or the security of his person except by due process of law. He also alleges in the two following paragraphs of the said affidavit that his committal was a contravention of his freedom of thought and expression and of the freedom of the press. He has chosen to apply to the High Court for redress. It seems to me that on a true construction of the sub-section the right to make such an application is granted to the applicant while preserving his right to pursue any other course which may be lawfully available to him, including an appeal. To hold therefore that the existence of an alternative course displaces the right established by the Constitution would be at best inconsistent with the plain intendment of the words of the sub-section and at worst render his right nugatory.
Sub-section (2) of section 6 confers jurisdiction to hear the application in these words:
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(1) The High Court shall have original jurisdiction –
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(a) to hear and determine any application made by any person in pursuance of sub-section (1) of this section.
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This provision is couched in the widest possible terms and in my view deliberately so. The language is plain and unambiguous. It is interested to note that paragraph (2) of Article 19 of the Constitution of Guyana which confers a similar jurisdiction on the High Court of Guyana in identical terms is subject to the proviso that the High Court shall not exercise its powers under that paragraph “if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law.” No such fetter is placed on the jurisdiction of the High Court of Trinidad and Tobago by the Constitution. I take this as an indication of the great importance attached by the Constitution to the citizen's rights of access to the High Court for the protection of his human rights and fundamental freedoms and its concern that that access should be clear and unimpeded. The Constitution guarantees these rights and freedoms and, to adopt the words of Cummings, J.A. in Olive Casey Jaundoo vs. A.G. (1968) 12 W.I.R. 221 at p. 251:
“The existence of such a guarantee precludes any organ of the state — executive, legislative or judicial — from acting in contravention of such rights and any purported State act which is repugnant to them must be void.”
The Constitution confers on the High Court the jurisdiction to determine whether there has been such a contravention and I find myself, with respect, in complete agreement with the opinion of Shastri, J. in Romesh Thappar v. State of Madras (1950) S.C.R. 584 at p. 596, quoted by Cummings, J.A. in Jaundoo'scase (supra):
“The court is thus constituted the protector and guarantor of fundamental rights and it cannot, consistently with the responsibility so laid upon it refuse to entertain applications seeking protection against infringement of such rights.”
The applicant's right to apply to the High Court and the jurisdiction of the court are both novel and extraordinary and the words of section 6 do not contain the implication that either is to be restricted by objections founded on the doctrines of res judicata or issue estoppel; indeed it is doubtful whether there is any room for the application of the latter doctrine in criminal proceedings.
I turn now to a consideration of counsel's argument that the court had no jurisdiction to entertain this application by virtue of the provisions of section 3 of the Constitution. He submitted that the law relating to contempt of court was a law in force in Trinidad and Tobago at the commencement of the Constitution and section 3(1) of the constitution provides, inter alia, that section 1 shall not apply in relation to such a law. Once it appears from the record, as it does, that the act of which the applicant complains was done in pursuance of an existing law then the court has no jurisdiction to hear the application based as it is on an invocation of the rights set out in section 1. If this is meant to suggest that section 1 created the...
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