Re Lt. R Lasalle

• Jurisdiction: Trinidad & Tobago
• Judge: Phillips, J.A.,De La Bastide, J.A.
• Judgment Date: 12 May 1971
• Neutral Citation: TT 1971 CA 26
• Docket Number: Civil Appeal No. 2 of 1971
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 12 May 1971

Court of Appeal

Phillips, J.A.; Fraser, J.A.; Bastide, J.A.

Civil Appeal No. 2 of 1971

Re: Lt. Rex Lasalle

Appearances:

Allan Alexander with O. Williams and D. Allum for the appellant.

Tajmool Hosein, Q.C., with C. Bernard for the Attorney-General.

Constitutional law - Interpretation of section 1(a) of the Constitution — Meaning of due process of law — Section 1 of the Act was intended to ensure the individual against oppressive or arbitrary use of authority — Prescription of due process adequately fulfilled in the amending Act and therefore no necessity arose for the provisions of section 5 of the Constitution to be observed — Appeal dismissed.

Phillips, J.A.

1 This appeal involves the interpretation of s. 1(a) of the Constitution. It is the first time since Trinidad and Tobago became independent on August 31, 1962, that this court has had the opportunity to construe the meaning of the clause “due process of law” in its context in s. 1(a) of Chap. 1 which reads as follows:

Chapter 1

The Recognition and Protection of Human Rights and Fundamental Freedoms.

• 1. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist without discrimination by reason of race, origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

  • (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;”

2 The circumstances which have led to this appeal had their commencement on April 21, 1970 when an incident allegedly involving soldiers of the First Battalion, Trinidad and Tobago Regiment occurred at Teteron Bay. The appellant is a Lieutenant in the Regiment and, accordingly, is a military officer in the Defence Force established under the Defence Act, 1962 (hereafter referred to as the Act.) As a consequence of the action which he is alleged to have taken, the appellant, along with other soldiers, was charged inter alia with mutiny with violence contrary to s. 33(1)(a) of the Act. Normally, the appellant might have been tried by an ordinary court-martial as constituted under s.87 of the Act; but the convening officer was of opinion that the necessary number of military officers was not available and it seemed to him necessary to appoint officers who were not military officers within the meaning of s.89(4) of the Act.

3 It is not necessary at the moment to consider whether other means were possible; but the procedure which was adopted to meet the apparent difficulty confronting the convening officer was the promulgation of the Defence (Amendment) Act, 1970, (hereafter referred to as the amending Act) the effect of which was to facilitate the Constitution of an ordinary court-martial consisting of officers chosen from military forces of Commonwealth countries. The amending Act was assented to on October 19, 1970, and tile appellant was remanded on October 21, for trial by a court-martial which, on that date, was constituted by the convening officer and consisted of Col. Theophilus Yakubu Danjuma (President), Lt. Col. Cecil Martindale, Lt. Col. I.K. IK Achampong, Lt. Col. Edward Young, and Major G.K. Miyanda. These are all officers of Commonwealth military forces. Mr. Justice George Commey Mills-Odoi of Ghana was appointed Judge-Advocate.

4 The court-martial commenced sitting on October 27, 1970. Objections to its jurisdiction were overruled and on November 14, the appellant's solicitor filed a notice of motion in the High Court seeking a number of declarations which included:–

• “(1) A Declaration that the Defence (Amendment) Act, 1970, (No.35 of 1970) is ultra vires the Constitution of Trinidad and Tobago and is null and void and of no effect;

• (2) A Declaration that the Court Martial purported to have been convened by Brigadier Joffre Serrette by Convening Order of the twenty-first day of October, 1970, over his signature by virtue, inter alia, of the said Act (No-35 of 1970) and consisting of Col. Theophilus Yakubu Danjuma (President); Lt. Col. Cecil Martindale, Lt. Col. I.K. IK Achampong, Lt. Col. Edward Young, and Major G.K. Miyanda (Members); with Mr. Justice George Commey Mills-Odoi as Judge Advocate is illegal and unconstitutional;”

5 On December 5, 1970 Braithwaite, J., dismissed the motion and, believing himself to be aggrieved, the appellant lodged this appeal on February 24 on grounds which included the following:

6 The learned trial judge erred in law in holding that the amending Act:–

• (a) has restricted the hitherto powers of the convening officer to the appointment only of Commonwealth Officers,

• (b) does not deprive the appellant of the rights guaranteed to him under Chapter 1 of the Constitution,

• (c) does not infringe or authorise the infringement of the right of the appellant to a fair trial before an independent and impartial tribunal, and

• (d) was not required to be passed as prescribed by section 5 of the Constitution as being an Act of Parliament to which the section applies.

7 The real question in this appeal is whether the omission by Parliament to pass the amending Act in accordance with the provisions of s.5 of the Constitution had the effect of depriving the right to appellant of his/life, liberty or security of his person as a consequence of the establishment of a court-martial which, but for the provisions of the amending Act, could not otherwise have been established, and which, by virtue of the provisions of the Act, became empowered to impose a sentence of death or imprisonment in the event the appellant was found guilty of mutiny. Section 5 and subs. (1) and (2) of the Constitution read as follows:

5

(1) An Act of Parliament to which this section applies may expressly declare that it shall have effect notwithstanding sections 1 and 2 of this Constitution and, if any such Act does so declare, it shall have effect accordingly except insofar as its provisions may be shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual. (2) An Act of Parliament to which this section applies is one the Bill for which has been passed by both Houses of Parliament and at the final vote thereon in each House has been supported by the votes of not less than three-fifths of all the members of that House.

8 A subsidiary and minor question is whether the amending Act itself violates the provisions of s.2 of the Constitution by virtue of the powers given to the convening officer to appoint “any person” to sit on an ordinary court-martial. Although this question touches only para. (f) of s.2 it is well that the whole section be quoted because, in my opinion, its provisions have a direct connection to the provisions in s.1(a).

2

Subject to the provisions of sections 3, 4 and 5 of this Constitution, no law shall abrogate, abridge, or infringe or authorise the abrogation, abridgment or infringement of any of the rights and freedoms herein before 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) impose or authorise the imposition of cruel and unusual treatment or punishment; (c) deprive a person who has been arrested or detained (i) of the right to be informed promptly and with sufficient particularity of the reason for his arrest or detention; (ii) of the right to retain and instruct without delay a legal adviser of his own choice and to hold communication with him; (iii) of the right to be brought promptly before an appropriate judicial authority; (iv) of the remedy by way of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful; (d) authorise a court, tribunal, commission board or other authority to compel a person to give evidence if he is denied legal representation or protection against self-crimination; (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; (f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; (g) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted; or (h) deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid rights and freedoms.

9 The Constitutional points which arise make this appeal one of high importance and for this reason only I propose to state fully the interesting submissions on behalf of the appellant and those for the Attorney General, Mr. Alexander submitted that by virtue of the amending Act persons were empowered to constitute a court-martial and to award punishment under s.71 of the Act which might directly deprive the appellant of his lifer liberty or the security of his person without due process of law by reason of the failure of Parliament to comply with the provisions of s.5 of the Constitution. The argument was developed along this line: the appellant was liable to be tried only by a court-martial constituted under the provisions of ss. 87 - 89 of the Act. The relevant portions of those sections for purposes of this appeal are s.89(3)(b) and (4) which read as follows:

89

(3) Where (a) …………… (b) the officer convening any court-martial appoints an officer not being a military officer as president or any other member of the court, being of opinion that the...