Ronald Bisnath v The Attorney General of Trinidad and Tobago

• Jurisdiction: Trinidad & Tobago
• Judge: Frank Seepersad
• Judgment Date: 27 March 2023
• Neutral Citation: TT 2023 HC 88
• Docket Number: Claim No. CV2023-00792
• Court: High Court (Trinidad and Tobago)

IN THE MATTER OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO CHAP. 1:01

and

IN THE MATTER OF THE LEGALITY OF THE CONTINUED DETENTION OF RONALD BISNATH ON DEATH ROW UNDER THE SENTENCE OF DEATH AT THE CONDEMNED SECTION OF THE PORT-OF-SPAIN PRISON

and

IN THE MATTER OF AN APPLICATION OF RONALD BISNATH FOR REDRESS UNDER SECTION 14 OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO ALLEGING THAT CERTAIN PROVISIONS OF THE SAID CONSTITUTION HAVE BEEN CONTRAVENED IN RELATION TO HIM BY THE STATE OF TRINIDAD AND TOBAGO ITS SERVANTS AND OR AGENTS

and

IN THE MATTER OF SECTION 4 (A), (B) and 5 (2) (B) AND 5 (2) (H) OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO

Between

Ronald Bisnath

Claimant

and

The Attorney General of Trinidad and Tobago

Respondent

Frank Seepersad

Claim No. CV2023-00792

IN THE HIGH COURT OF JUSTICE

Appearances:

1. Mr. G. Ramdeen and Mr. W. Sturge instructed by Ms. D. Harripaul and Ms. N. Bala, Attorneys-at-law for the Claimant.

2. Ms. N. Yee Fong, Ms. C. Findley and Ms. R. Sookdeo, Attorneys-at-law for the Defendant.

DECISION

1 Before the Court for its determination is the Claimant's substantive claim which seeks reliefs premised upon Section 14 of the Republican Constitution 1976 (“the Constitution”) as well as his Notice of Application for interim relief filed on 21 March 2023 whereby the following reliefs are being sought:

• a. That this Application be deemed fit and requiring the urgent and immediate attention of the Court.

• b. An Interim Declaration that the carrying out or any attempt to carry out the sentence of death imposed upon the Claimant on the 27th March, 2014 by the Respondent its servants and or agents, will constitute a contravention of the Claimant's right guaranteed under Section 4 (a), (b) and 5 (2) (b) of the Constitution of the Republic.

• c. An Interim Declaration that the continued detention of the Claimant on death row awaiting execution under sentence of death subsequent to the 27th September, 2017 constitutes a breach of his fundamental rights protected by Sections 4 (a), (b) and 5 (2) (b) of the Constitution such as may be compensated in damages.

• d. A Mandatory Interim Order that the sentence of death imposed upon the Claimant on the 27th March, 2014 be and is hereby forthwith vacated.

• e. An Interim Mandatory Order that the Respondent its servants and or agents do take all steps and actions and make all arrangements to forthwith remove the Claimant from death row to an appropriate place to await sentencing by this Court.

• f. Such further or other relief, writs, orders and give such directions for the enforcement of the Claimant's rights in accordance with the overriding objective.

• g. That the Respondent do pay the costs of this Application certified fit for two Advocate Attorneys.

Facts:

2 In summary, the Claimant was charged in 2006 for murder and he was convicted in March 2014 and sentenced to death in accordance with law. His appeal against his conviction was dismissed by the Court of Appeal in July 2018. Since his conviction in 2014, the Claimant was detained at the condemned cells in the Port-of-Spain prison and remains on death row.

The relief sought:

3 The Court notes that as part of the relief sought in the notice of application for interim relief, interim declarations were sought as follows:

• a. that the carrying out or any attempt to carry out the sentence of death imposed upon the Claimant on the 27th March, 2014 by the Respondent its servants and or agents, will constitute a contravention of the Claimant's right guaranteed under Section 4 (a), (b) and 5 (2) (b) of the Constitution of the Republic.

• b. that the continued detention of the Claimant on death row awaiting execution under sentence of death subsequent to the 27th September, 2017 constitutes a breach of his fundamental rights protected by Sections 4 (a), (b) and 5 (2) (b) of the Constitution such as may be compensated in damages.

4 The Court has considered the nature and effect of the declarations sought. Such declarations by their intrinsic nature amount to final declarations of rights and logically cannot be issued in any temporary form. The relief sought in this case, having regard to the operative factual matrix, is exceptional and a court should only consider granting such relief in the clearest and most exceptional circumstances.

5 This Court is mindful of its inherent jurisdiction under Section 14 of the Constitution and it is empowered to craft remedies so as to safeguard the rights of citizens. Section 14 (1), (2) and (3) of the Constitution states:

“14. (1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter 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 by way of originating motion.

(2) The High Court shall have original jurisdiction—

• (a) to hear and determine any application made by any person in pursuance of subsection (1); and

• (b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (4), and may, subject to subsection (3), make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter to the protection of which the person concerned is entitled.

(3) The State Liability and Proceedings Act shall have effect for the purpose of any proceedings under this section.”

6 The authors of Fundamentals of Caribbean Constitutional Law 1st ed. (Sweet and Maxwell) at paragraph 9–035 state that:

“The redress clause gives the superior courts wide ranging power to ensure effective relief to those affected by breaches of the bills of rights. This is an essential dimension of the constitutional guarantee of the rule of law and against abuse of state power…

The superior courts will use their ample power under the redress clause to create a remedy to ensure effective relief. The courts can fashion a new remedy to give effective relief if none exists and they are not restrained by common law or statutory rules about the scope of existing remedies…”

7 This Court is also mindful of the dicta of Jamadar JA (as he then was) in Civil Appeal No. S 244 of 2015 SS v Her Worship Magistrate Marcia Ayers-Caesar and others which considered the issue of whether the only interim order available in constitutional proceedings was a conservatory order as explained by the Court of Appeal in AG v Bansraj (1985) 38 WIR 286. The Court unanimously held that it was not and explained that the State Liability and Proceedings Act was only designed to provide for civil actions, tort and property against the State. On appeal to the JCPC ( Seepersad (a minor) v Ayers-Caesar and others [2019] UKPC 7), the Board agreed with Jamadar JA's approach and upheld the mandatory orders made.

8 This Court is not comfortable with the issuance of interim declarations but it is not constrained in its ability to craft appropriate remedies...