The Attorney General of Trinidad and Tobago v Thomas
| Jurisdiction | Trinidad & Tobago |
| Judge | Hyatali, C.J.,Kelsick, J.A.,Phillips, J.A.,Kelsick, J.A |
| Judgment Date | 19 January 1979 |
| Neutral Citation | TT 1979 CA 1 |
| Docket Number | Civil Appeal No. 68 of 1976 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 19 January 1979 |
Court of Appeal
Hyatali, C.J.; Phillips, J.A.; Kelsick, J.A.
Civil Appeal No. 68 of 1976
T. Hosein, Q.C. and I. Blackman — for the appellant,
M.G. Daly — for the respondent.
Constitutional Law - Police — Terms of service — Whether dismissible at pleasure — Statotory power of removal — Reasonable cause necessary — Constitution of Trinidad and Tobago, 1962, ss. 84, 93, 99(1) and 99
Constitutional law - Police — Terms of service — Dismissal — Whether court has jurisdiction to inquire into dismissal — Extent to which jurisdiction ousted — Constititution of Trinidad and Tobago, 1962, s. 102(4) — Validity of legislation — Police Service Commission Regulations, regulations 74 and 99 — Whether Regulation 74 ultra vires
Administrative Law - Statutory Bodies — Tribunals — Jurisdiction.
The question whether the respondent Endell Thomas, a former police officer of the First Division in the Police Service, was dismissible at the pleasure of the Crown, is a crucial one in this appeal. If he was, then nothing further falls to be considered; but if he was not, the other two questions become highly relevant. All three questions however, raise extremely important constitutional issues and I should like at the outset to acknowledge that the court was greatly assisted by the comprehensive and skilful submissions of Mr. Hosein for the appellant, on the one hand, and the lucid and able argument of Mr. Daly for the respondent on the other.
Having had the invaluable advantage of reading before hand the judgments delivered by Kelsick, J.A. and Phillips, J.A. respectively, I feel obliged to express my admiration of the expansive and searching analysis they have each made of the relevant legislation, authorities and principles bearing upon the issues in this appeal. It is regrettable that we have not been able to reach an unanimous decision on them, especially as, they affect the status and fortunes of a highly disciplined body of officers, of whom much is expected, and on whom so much more depends, by reason of the vast powers and responsibilities reposed in them to preserve the peace, to enforce the criminal law, to repress internal disturbances, and to safeguard internal security.
By “s. 37” of the Interpretation Ordinance Ch. 1 No.2 (the Ordinance) it was provided that –
“No law shall in any manner whatsoever affect the rights of the Crown unless it is therein expressly provided or unless it appears by necessary implication that the Crown is bound thereby.”
In addition to what might be conveniently described as “dictionary provisions” in “s. 2” of the Ordinance, there were a number of general rules prescribed therein in the remaining thirty-five sections thereof for the construction of enactments, Almost all of them however, were restrained or guarded by the repetition in each section of the expression, “unless the contrary intention appears”, and like phrases.
The Ordinance was repealed by the Interpretation Act 1962 (the 1962 Act) which, like its predecessors contained general rules for the construction of enactments, in addition to “dictionary provisions”. By “sections 3 and 7” thereof it was provided as follows:
“3(1) Every provision of the Act extends and applies to every enactment passed or made before or after the commencement of this Act, unless a contrary intention appears in this Act or the enactment.
(2) The provisions of this Act apply to this Act as they apply to an enactment passed after the commencement of this Act.
… … … …
(7) No enactment passed or made after the commencement of this Act binds or affects Her Majesty or Her Majesty's fights or prerogatives unless it is expressly stated therein that Her Majesty bound thereby.”
I pause here to observe, that the expression “unless a contrary intention appears” recurred throughout and burdened the Ordinance. The tedious repetition of that expression however, is avoided in the 1962 Act, by the employment of the formula contained in “s. 3 (1)”, and the provisions of “s. 3 (2)' which made that formula applicable to the 1962 Act and enactments passed thereafter. Consequently, the necessity for qualifying each section of the 1962 Act with the expression “unless a contrary intention appears” was eliminated. The substance of the scheme devised by the draftsman therefore was firstly, to apply the formula contained in “s. 3 (1)” to the whole of the 1962 Act; and secondly, to make every section of the 1962 Act applicable to all statutes passed thereafter unless a contrary intention appeared. In my judgment, at least two irrefutable results flow from that scheme. Firstly, the rule of construction contained in “s. 7” must be held to apply to the 1962 Act unless a contrary intention therein; and secondly, the said rule of construction must also be held to apply to the 1965 Act unless a contrary intention appears therein. It is to be noted under the first result that a contrary intention is actually expressed in “s. 9” of the 1962 Act to the effect that it binds the Crown, whereas in the 1965 Act, except for two sections to which I refer thereafter, no such intention is actually expressed. But in my view, it necessarily follows from the second result referred to, that if a contrary intention appears from the rest of its provisions, effect must be given to it.
I have thus come to the conclusion that the 1962 Act has reproduced, albeit in different language, the rule of construction which had been prescribed in “s. 37” of the Ordinance to the effect, that no enactment binds the Crown, unless it is therein expressly provided, or unless it appears by necessary implication that the Crown is bound thereby. This, in my judgment, is the same as saying that no enactment binds the Crown unless it is expressly stated that it is bound or unless y intention appears therein.
It was Mr. Hosein's submission however, that the doctrine of necessary implication had been abolished by “s. 7” of the 1962 Act, and to establish the validity of that proposition he referred the court to para. 1 (4) of the Schedule thereto which provides as follows:
“(4) No enactment passed before the commencement of this Act shall in any manner whatsoever affect the rights of the Crown unless it is therein expressly provided or unless it appears by necessary implication that the Crown is bound thereby.”
That provision reproduces with minor adaptations, the provisions of “s. 37” of the Ordinance, and was made applicable to statutes passed before the 1962 Act, by s.60 thereof. In my judgment however, this provision was necessary and was inserted ex abundante cautela in the Schedule, since by “s. 3” of the 1962 Act every provision thereof was made applicable to statutes made or passed both before and after its enactment. Consequently, the doctrine of necessary implication which was preserved by the conjoint effect of “ss. 3 and 7” of the 1962 Act, as I have sought to demonstrate, applied to statutes made or passed before its enactment. It was therefore otiose to enact the rule in para. 1 (4) of the Schedule.
In any event, it seems to me, that the reproduction of the rule prescribed in “s. 37” of the Ordinance and the enactment of a provision prescribing that it applies to statutes to which the Ordinance had been applicable before its repeal, provide no warrant for concluding that “s. 7” abolished the doctrine of necessary implication. So to conclude would be prescribing that “s. 7” was exempted from the imperative directions of “s. 3 (2)”. It is obviously beyond the competence of this court to so prescribe. If the legislature wished to so provide it would have been very easy for it to say so in plain words. Moreover, the construction contended for by counsel for the appellant, introduces and sustains a conflict between the two sections, whereas the construction which Mr. Daly proposed and which I favour, not only avoids the conflict but makes for their harmonious and congruent operation on all enactments. In accordance with well-settled principles therefore, the former must be rejected and preferred.
It was also contended that “s. 3” of the 1962 Act, being a general provision, could not override “s. 7” thereof which was a special provision, and with which it was in conflict. If as I have held however, the conjoint effect of “ss. 3 and 7” is to preserve and continue the rule of construction formulated in “s. 37” of the Ordinance, then the question whether one section conflicts with the other and which should prevail does not arise for consideration.
Kelsick, J.A, has drawn attention in his judgment to enactments corresponding to “ss. 3 and 7” of the 1962 Act. In particular, he referred to the Interpretation (Northern Ireland) Act 1954, and a commentary thereon in the Northern Ireland Law Quarterly Vol 6 No.2 at p.218. I had the advantage of reading a photocopy of the author's comments, but I am unable to accept his opinion that the Act had set to rest the doctrine of necessary implication in Northern Ireland statutes. From my reading of his commentary, it appears to me that his opinion was formed without giving any or sufficient consideration to the effect of “s. 2 (1) and 2 (3)” on “s. 7” of that Act, ail of which are in almost identical terms as “ss. 3 (1), (2) and 7” of the 1962 Act.
I pass on then to consider the question, whether it could be said that the 1965 Act binds the Crown. I accept that no formula is necessary to be inserted in a statute to achieve such a result, but except for two sections in the 1965 Act dealing with industrial agreements and disputes, I have been hard put to find any express statement therein that it binds the Crown. It was contended that the long title was tantamount to such a statement. That title however, shows that the Act was passed to achieve four objectives as follows:
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(1) “to make...
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