IN THE COURT OF APPEAL

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO Civil Appeal No. S 244 of 2015 IN THE COURT OF APPEAL IN THE MATTER OF AN APPLICATION BY SS (by her kin and Next Friend KAREN MOHAMMED), FOR AN ADMINISTRATIVE ORDER UNDER PART 56 OF THE CIVIL PROCEEDING RULES 1998 AND IN THE MATTER OF SECTION 4 AND 5 OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO ACT NO. 4 of 1976 AND IN THE MATTER OF THE ACTIONS, POLICY, PROCEDURE AND PRACTICE OF THE COMMISSIONER OF PRISONS, HIS OFFICERS, SERVANTS AND/OR AGENTS BEING OFFICERS, SERVANTS AND/OR AGENTS OF THE STATE OF THE REPUBLIC OF TRINIDAD AND TOBAGO IN DETAINING THE CLAIMANT AT THE ADULT WOMEN S PRISON, GOLDEN GROVE, AROUCA AND IN THE MATTER OF AN APPLICATION BY SS (by her kin and Next Friend KAREN MOHAMMED), A CITIZEN OF THE REPUBLIC OF TRINIDAD AND TOBAGO ALLEGING THAT CERTAIN PROVISIONS OF THE SAID CONSTITUTION HAVE BEEN CONTRAVENED AND ARE BEING CONTRAVENED IN RELATION TO HER FOR REDRESS IN ACCORDANCE WITH SECTION 14 OF THE CONSTITUTION BETWEEN SS (by her kin and Next Friend KAREN MOHAMMED) Appellant/Claimant AND HER WORSHIP MAGISTRATE MARCIA AYERS-CAESAR 1 st Respondent/1 st Defendant STERLING STEWART THE COMMISSIONER OF PRISONS 2 nd Respondent/2 nd Defendant THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO 3 rd Respondent/3 rd Defendant Page 1 of 31

2 PANEL: A. Mendonca, J.A. P. Jamadar, J.A. N. Bereaux, J.A. APPEARANCES: Mr. A. Ramlogan, S.C., Mr. G. Ramdeen, Ms. J. Lutchmedial, Mr. K. Samlal, instructed by Mr. V. Debideen for the Appellant. Mrs. D. Peake, S.C., Mrs. J. Baptiste-Mohammed, Ms. E. De Silva, instructed by Ms. J. Gajadhar for the 2 nd and 3 rd Respondents. Ms. N. Ali instructed by Ms. N. Watson for the Children s Authority. DATE DELIVERED: 28 th April, Delivered by P. Jamadar, J.A. I have read the Judgment of Jamadar, J.A. and I agree. A. Mendonca Justice of Appeal I have read the Judgment of Jamadar, J.A. and I also agree. N. Bereaux Justice of Appeal Page 2 of 31

3 Introduction 1. This procedural appeal concerns the refusal by the trial judge of an application for interim relief on behalf of a minor in the context of a public law action, alleging breaches of the fundamental rights provisions of the Constitution, as well as infringements of administrative law principles. 2. Section 3(1) of the Children Act establishes that a child is a person under the age of 18 years. The claimant is a child, she having been born on the 24 th January, The trial judge s summary of the background facts 1 is impeccable and was as follows: 2. The Child was born on January 24 th On January 29 th 2014, at the age of 16 years, she was charged with murder and remanded to the Adult Prison. In accordance with s. 5(1) of the Bail Act Chap. 4:60 of the laws of the Trinidad and Tobago she was not eligible for bail and continues to be remanded in the Adult Prison. She is at present, however, kept isolated from the general prison population. 3. On May 18 th 2015 the President of Trinidad and Tobago proclaimed various sections of the Children Act and declared that they were to have effect as of that date. S. 54(1) of the Children Act, which was proclaimed by the President, specifies that a court, on remanding or committing for trial a child who is not released on bail, shall order that the child be placed in the custody of a Community Residence for the period for which he is remanded or until he is brought before the court. Further, s. 60 of that Act stipulates that a court shall not order a child to be detained in an adult prison. 4. At present there are no suitable Community Residences in Trinidad and Tobago to house the Child. Despite this reality, counsel for the intended claimant wishes to challenge the decision of the Magistrate to order that 1 Paragraphs 2-4 of the trial judge s judgment. Page 3 of 31

4 the Child be remanded to the Adult Prison and the Adult Prison s authority to keep her incarcerated. The conservatory order petitions for her release from the Adult Prison as it is a violation of her constitution rights. 4. The actual interim relief claimed was as follows: 2 1. A conservatory order against the third named intended respondent directing the Attorney General to undertake that the second named intended respondent do forthwith release the claimant from custody into the custody of her mother Karen Mohammed. 2. In the alternative a conservatory order against the third named intended respondent to undertake that a suitable community residence approved by the Children s Authority be established immediately in order to provide a place of safety for the claimant. 5. Both before the trial judge and this court, counsel for the appellant insisted that the only appropriate interim relief that should be granted, was the release of the child into the custody of her mother. 6. On the 2 nd September, 2015 the court granted leave to proceed on the judicial review claim and as well made the following orders: 1. That the Legal Aid and Advisory Authority issue an emergency certificate for the appointment of an attorney at law with no less than seven years experience as a family law practitioner to represent and safeguard the interest of the Child in these proceedings; 2. That the Children s Authority conduct an evaluation and report in respect of St. Jude s School for girls or such other facility which may qualify as a Community Residence under the provisions of the Children s Community Residences, Foster Care and Nurseries Act No. 65 of 2000 (hereinafter referred to as a Community Residence ) with a view to providing to the 2 Application filed on 1 st September, See also, paragraph 5 of the trial judge s judgment. Page 4 of 31

5 Court the name and location of a suitable Community Residence capable of complying with the terms and provisions of the Children Act and the Children s Community Residences, Foster care and Nurseries Act such evaluation and report to be filed and served by Wednesday 9 September On the 9 th September, 2015 and pursuant to the court s direction, the Children s Authority indicated, by way of affidavit, that there was no available facility which may qualify as a Community Residence capable of complying with the terms and provisions of the Children Act and the Children s Community Residences, Foster Care and Nurseries Act Against this background the trial judge identified the issues before him as follows: 4 The application for a conservatory order raises two main issues: 1. Whether the Children Act is applicable to this case. 2. If the Court finds that there is an arguable case that the Act is applicable, whether the Court can grant the conservatory order (1) on the terms requested or (2) any form of interim relief which would prevent any further violation to the applicant s constitutional right to due process. 9. The trial judge resolved the first issue affirmatively: There is a prima facie case, therefore, that the Children Act is applicable to the Child s case and legally, she should not be detained in an adult prison. 5 The respondent accepts this finding and agrees further that as long as the child is a minor (and not entitled to bail), she ought to be detained on remand in the custody of a Community Residence (section 54 of the Children Act) and not detained in an adult prison (section 60 of the Children Act). 10. This appeal therefore concerns the judge s analysis and conclusions on the second issue. In particular, the issues before this court were as follows: 3 Paragraph 11 of the trial judge s judgment. 4 Paragraph 12 of the trial judge s judgment. 5 Paragraph 15 of the trial judge s judgment. Page 5 of 31

6 (i) Whether the trial judge was correct to conclude, that the only form of interim order that can be granted in constitutional proceedings is a conservatory order per the Court of Appeal in Attorney General v Sumair Bansraj. 6 (ii) Whether on a proper construction of section 14 of the Constitution and section 22 of the State Liability and Proceedings Act (SLPA), the restriction on the granting of injunctions in constitutional proceedings is to be limited to civil proceedings as defined by the SLPA and to constitutional actions that are in species civil proceedings akin to proceedings between subjects. (iii) Whether by virtue of section 14 of the Constitution and/or of section 8 of the Judicial Review Act, the appropriate interim order in the circumstances of this case is an order releasing the child forthwith into the custody of the mother. (iv) Whether in the circumstances of this case the trial judge ought to have made an interim order compelling the State to provide a suitable Community Residence without further delay and to relocate the child to that Community Residence immediately upon its establishment. Disposition 11. On the 12 th November, 2015 this court 7 heard and determined this appeal. We decided unanimously that pursuant to both section 14(2) of the Constitution and section 8 of the Judicial Review Act, the appellant was entitled to interim relief. And, that the most appropriate interim relief in the circumstances of this case, at this stage, was that the third respondent provide a suitable Community Residence as provided for in the Children Act and the Children s Community Residences, Foster Care and Nurseries Act for placement of the child on or before the 8 th December, That, upon the provision of the suitable Community Residence, the second respondent shall forthwith transfer the child from his custody into the custody of the said Community Residence. That there be liberty to apply. And, that each party is to bear their own 6 (1985) 38 WIR Mendonca, J.A., Jamadar, J.A. and Bereaux J.A. Page 6 of 31

7 costs. We also agreed to give full reasons in the event of an appeal to the Privy Council. Our reasons are set out below. Analysis The Constitution: Bansraj and section 22 of the SLPA 12. Is the only interim order available in constitutional proceedings a conservatory order as explained in Attorney General v Bansraj? In our opinion it is not. 13. Section 14 (1), (2) and (3) of the 1976 Republican 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. Page 7 of 31

8 14. At Independence, the 1962 Constitution did not contain the equivalent of section 14(3) of the 1976 Constitution. 8 Why was section 14(3) introduced as a constitutional provision (and incorporated into section 14(2)) and what is its effect? 15. The jurisprudence from the Court of Appeal decision in Bansraj (1985) to the Privy Council decision in Durity v Attorney General 9 (2002) is consistent in two respects: (i) the specific incorporation of the SLPA into section 14 of the Constitution could not have been intended to and did not incorporate all of the provisions of that Act into section 14 of the Constitution; and (ii) the limitation on available relief provided for by section 22 of the SLPA was intended to be and was incorporated into section 14(2) of the Constitution. 16. In Bansraj, Braithwaite, J.A. opined as follows: 10 Section 14(3) states nakedly and specifically that the State Liability and Proceedings Act has effect for the purpose of proceedings under section 14. It does not indicate which of the provisions have effect. It cannot be the procedural provisions of the Act for that aspect has been taken care of by section 14(2) of the Constitution and Order 55 of the Rules of the Supreme Court The only other provisions of the Act to which it can possibly apply are the provisions for redress or relief set out in section 22 of the State Liability and Proceedings Act. 17. In Durity, Lord Nicholls stated: 11 [24] On this, the first point to note is that the express but general reference to the State Liability and Proceedings Act in s 14(3) of the Constitution cannot be read as meaning that every provision of that Act is incorporated into the Constitution for the purpose of constitutional proceedings. On even a cursory reading of the State Liability and Proceedings Act it is at once apparent that some of its provisions can have no application to 8 The SLPA came into operation on the 28 th September, [2002] 60 WIR (1985) 38 WIR 286 at (2002) 60 WIR 448 at Page 8 of 31

9 constitutional proceedings. They are not apposite. For instance, the changes in substantive law, already mentioned, made by the State Liability and Proceedings Act have no direct relevance to constitutional proceedings brought to enforce Chapter 1 rights and freedoms. Thus, s 14(3) of the Constitution has to be read as applying to constitutional proceedings such of the provisions of the State Liability and Proceeding Act as are capable of being applied for this purpose. 25. This gives rise to no difficulty with some of the provisions of the State Liability and Proceedings Act. Some at least of the procedural changes introduced by this Act can and do have a place in the conduct of constitutional proceedings. This is most obviously so regarding the remedial powers conferred upon the High Court by s 14(2) of the Constitution. These remedial powers are qualified by the provisions of the State Liability and Proceedings Act. Section 14(2) expressly so provides by its use of the phase subject to subsection (3). This qualification on the court s powers of granting redress readily finds explanation in s 22 of the State Liability and Proceedings Act, which limits the power of the court to grant injunctions and certain other forms of relief in proceedings against the State. In such instances the remedy available against the State is a declaratory order. The effect of s 14 of the Constitution and its incorporation of the State Liability and Proceedings Act for the purpose of constitutional proceedings is that in constitutional proceedings there is a like limitation on the court s remedial powers. The context permits this application of s 22 in constitutional proceedings. 18. That being the case, section 22 of the SLPA has been given constitutional status alongside all of the provisions of section 14 of the Constitution. Section 22 of the SLPA states: 22. (1) In any civil proceedings by or against the State the Court, subject to this Act, may make all such orders as it may make in proceedings between subjects, and otherwise to give the appropriate relief as the case may require. Page 9 of 31

10 (2) Where in any proceedings against the State any relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance the Court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties. (3) In any proceedings against the State for the recovery of land or other property, the Court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the State to the land or property or to the possession thereof. (4) The Court shall not in any civil proceedings grant any injunction or make any order against an officer of the State if the effect of granting the injunction or making the order would be to give any relief against the State which would not have been obtained in proceedings against the State. 19. All of the judges in the Court of Appeal in Bansraj were of the view that, in the particular factual circumstances of Bansraj s case, an interim interlocutory order restraining the State from entering the lands of Bansraj could not be made because of the incorporation of section 22 of the SLPA into section 14 of the Constitution, and strictly speaking only an order declaratory of his rights was available to him. 20. They were all also of the view that section 22 of the SLPA was really concerned with final orders and was not intended to address interim orders. Yet, they appeared to be of the view that if a court could not grant as a final order an injunction in constitutional proceedings, it also could not do so at an interim stage. Braithwaite, J.A. explained his understanding as follows: 12 This court will not, like the trial judge, seek to ignore the provisions of section 14(2) or (3) of the Constitution, or for that matter the provisions of section 22 of 12 (1985) 38 WIR 286 at 301. Page 10 of 31

11 the Act. Judicial pronouncements, as I have shown, on the availability of the remedies of injunctions and specific performance against the State or its officers both at the interlocutory as well as at the final stage, make it abundantly clear that neither of these remedies is available to a person to whom section 14(1) of the Constitution applies whose fundamental rights have been contravened. Such a person is entitled by virtue of the application of the Act by the Constitution only to an order declaratory of his rights. This, of course, is at the final stage of any given matter. What is questionable is whether, an individual who fears that his rights to the security of his property will be immediately contravened by the State, is entitled to some measure of interim relief other than the coercive remedies of an (interlocutory) injunction. 21. Chief Justice Kelsick was much more assertive and unequivocal: There is room for interpreting section 22 to apply to final, and not to interim injunctions. 13 The Chief Justice also went on to state: 14 In my opinion the immunity of the State from injunctive relief granted by section 22 of the State Liability and Proceedings Act can be reconciled with the power of the court to provide remedies under section 14 of the Constitution by interpreting section 22 as being confined not only to final declarations but also to final injunctions. The court could therefore make conservatory orders for the preservation of property and maintaining the status quo against the State or an officer thereof without infringing section 22(4). While ex facie the order would not be an injunction, it may be argued that its effect is the same. But as it is an interim and not a final order that objection will not be sustainable. 22. In the final result Braithwaite, J.A. came up with (and the rest of the court agreed) the notion of a conservatory order, which was supposedly not the equivalent of an interim interlocutory injunction per se, but an order directing parties to undertake to maintain the status quo until the determination of the matter. 13 (1985) 38 WIR 286 at (1985) 38 WIR 286 at 291. Page 11 of 31

12 23. In the words of Braithwaite, J.A.: 15 What I find he should have done, as this court now has to do, is to find a formula which would on the one hand protect the constitutional rights of the respondents and on the other hand not restrain by way of injunction or by any coercive measure the rights of the State or its officers. The order would direct both parties to undertake that no action of any kind to enforce their respective rights will be taken until the substantive originating motion has been determined; that the status quo of the subject matter will remain intact. The order would not then be in the nature of an injunction which would offend the provisions of section 22 of the State Liability and Proceedings Act, as applied by the Constitution; but on the other hand it would be well within the competence and the jurisdiction of the High Court to give such directions as it may consider appropriate for the purpose of securing the enforcement of the provisions of the Constitution which are designed to protect the individual against unwarranted invasions of his rights by the State (section 14(2) of the Constitution). 24. In so far as Bansraj is a decision of the court of appeal and to that extent this court cannot act in variance with the ratio of that decision, we state as follows: (i) Bansraj was decided thirty (30) years ago and was clearly a case determined on its particular facts. It was a case involving real property and threatened action by the State to compulsorily acquire (and bulldoze) private lands for the purposes of highway construction. 16 (ii) Bansraj recognized that section 22 of the SLPA must be interpreted and applied contextually; and that a court is entitled to be creative and innovative to find a 15 (1985) 38 WIR 286 at See Kublalsingh v Attorney General, Civ. App. No. P 142 of 2014, per Jamadar, J.A., at paragraph 11. Page 12 of 31

13 formula which would provide effective interim relief in the particular circumstances of each case. (iii) The consensus of the court was that section 22 of the SLPA applied strictly to final orders in constitutional proceedings. 25. Because of these considerations, the court of appeal in Bansraj was not specifically called upon to interpret the meaning and implications of the words in any proceedings against the State as might in proceedings between subjects be granted in section 22(2) and/or to do so in the context of public law proceedings that are not akin to civil proceedings as customarily understood (or as defined in the SLPA). 26. The approach to the interpretation of section 14 of the Constitution is well accepted to be imperative of a generous interpretation, that promotes the upholding of the fundamental rights provisions. Indeed, in seeking to interpret and apply section 14(2) of the Constitution, Chief Justice Sharma commented as follows: 17 Before dealing with the issues of whether exemplary damages can be awarded under the Constitution, I wish to repeat by way of introduction what I said obiter in Ramnarine Jorsingh v Attorney General (1997) 52 WIR 501 at 512: The breadth of the language of subsection (2) is clear. The court is mandated to do whatever it thinks appropriate for the purpose of enforcing or securing the enforcement of any of the provisions dealing with the fundamental rights. There is no limitation on what the court can do. Any limitation of its powers can only derive from the Constitution itself. Not only can the court enlarge old remedies; it can invent new ones as well, if that is what it takes or is necessary in an appropriate case to secure and vindicate the rights breached. Anything less would mean that the court itself, instead of being the protector, defender and guarantor of the constitutional rights would be guilty of the most serious betrayal. 17 Siewchand Ramanoop v Attorney General (2003) 65 WIR 313 at Page 13 of 31

14 By way of amplification, I should like to add that there is nothing in s 14 of the Constitution which limits remedies only to those known to law or equity, and nothing which limits the availability of existing remedies only to those circumstances in which they would currently be available. There is a need for a remedy under s 14 of the Constitution, in addition to or instead of common law remedies to vindicate constitutional rights. It cannot be that the constitutional courts role is limited to an award for compensation and declarations. This approach would merely reflect the common law position. The role of the court in a constitutional motion is fundamentally different from its role in conventional (civil) litigation. This has been reflected in the development of the constitutional jurisprudence, thus far on the generous approach to be taken in interpreting the fundamental rights and freedoms, and it would be something of a jurisprudential anomaly if the orders of the court should simply follow the common law. 27. While it is clear that Chief Justice Sharma recognized, that the only limitations on what relief a constitutional court can grant can only derive from the Constitution itself hence the section 22 of the SLPA conundrum; it is also clear that he envisaged a breadth and depth of remedial power that of necessity must enable the effective enforcing, or securing the enforcement of the fundamental rights provisions. 28. In our opinion section 22 of the SLPA, while incorporated into section 14 of the Constitution, must be read, interpreted and applied in two core contexts: (i) the context of section 14 itself; and (ii) the context of the SLPA itself. The Meaning of Section 22 in the Context of the SLPA 29. The long title to the SLPA states: Page 14 of 31

15 An Act to amend the law relating to the civil liabilities and rights of the State and to civil proceedings by and against the State, to amend the law relating to the civil liabilities of persons other than the State in certain cases involving the affairs or property of the State, and for purposes connected with the matters aforesaid. 30. The first thing that is both striking and noteworthy, is that the SLPA is indicated as dealing with the civil liabilities and rights of the State and civil proceedings by and against the State. 31. Section 2 of the SLPA defines civil proceedings as proceedings in the High Court of Justice or a Petty Civil Court for the recovery of fines or penalties, but does not include proceedings analogous to proceedings on the Crown side of the Queen s Bench Division in England. 32. It is reasonably clear that by excluding proceedings analogous to proceedings on the Crown side of the Queen s Bench Division in England, what was intended, was to exclude what today we know as public law administrative actions, and a fortiori, what are now constitutional proceedings In fact, when one peruses the detailed content of the SPLA itself, it is quite obvious that what is being provided for are typical civil actions in tort, contract and property. Indeed, Lord Nicholls in Durity v Attorney General 19 explained the purpose of the SLPA as follows: The State Liability and Proceedings Act, originally known as the Crown Liability and Proceedings, was modelled closely on the (United Kingdom) Crown Proceedings Act Its purpose was broadly similar. Primarily, its purpose was to modernize the law in two related fields; the substantive law relating to the civil liabilities and rights of the State, and the procedural law relating to bringing 18 See Lord Bingham in Gairy v Attorney General [2002] 1 AC 167 at 180, paragraph 21: Since the expression civil proceedings probably excludes what would now be called applications for judicial review, it must be highly questionable whether it includes claims for constitutional redress which the draftsmen in the UK in 1947 and Grenada in 1959 could not have contemplated and which may fairly be regarded as sui generis. 19 (2002) 60 WIR 448 at 454, paragraph 18. Page 15 of 31

16 civil proceeding by and against the State. Thus, as a matter of substantive law, claims formerly brought against the State with the fiat of the President, in future could be enforced as of right; s 3. These claims consisted principally of claims relating to land or goods in the hands of the crown, and claims for payments due under contracts or for damages for breach of contract. Again, and this was a radical change in the law, in prescribed respects the State was to become subject to the same liabilities in tort as those to which it would be subject if it were an individual; s 4. As a matter of procedural law, ancient forms of proceedings against the State, such as Latin information, English information, and petitions of right, were abolished. In future, proceedings against the State were to be instituted and pursued in accordance with rules of court; s 15. The statute itself made provision on many procedural matters, such as the method of making the State a party to proceedings (the Attorney-General should be the plaintiff or defendant) and the service of documents, and concerning judgments and execution. 34. Again, what is apparent, consistent with what Lord Bingham observed in Gairy v Attorney General, 20 is that the SLPA was simply never intended to apply to public law matters, whether administrative law or constitutional law matters (that are fairly to be regarded as sui generis Lord Bingham in Gairy). 35. In fact, section 8 of the Judicial Review Act of Trinidad and Tobago expressly provides for the granting of injunctive relief against public authorities in administrative law actions against the State. 21 Quite an anomaly, that an injunction (including an interim injunction) can be 20 [2002] 1 AC 167 at 180, paragraph 21: Since the expression civil proceedings probably excludes what would now be called applications for judicial review, it must be highly questionable whether it includes claims for constitutional redress which the draftsmen in the UK in 1947 and Grenada in 1959 could not have contemplated and which may fairly be regarded as sui generis. 21 Section 8 of the Judicial Review Act states: (1) On an application for judicial review, the Court may grant the following forms of relief: (a) an order of mandamus, prohibition or certiorari; (b) a declaration or injunction; (c) an injunction under section 19; or (d) such other orders, directions or writs as it considers just and as the circumstances warrant. Page 16 of 31

17 obtained to restrain or direct State action in administrative law actions, for say alleged unlawful action by public officers (as in this case); but similar injunctive orders cannot be granted where there is an alleged breach of the section 4(a) and 4(b) constitutional rights to due process and protection of the law. 36. Furthermore, there are the words in section 22 of the SLPA that limit the section itself to any relief as might in proceedings between subjects be granted by way of injunction or specific performance. As Lord Nicholls tritely observed in Durity v Attorney General in relation to these specific words: Constitutional proceedings are not capable of being brought between subjects. 22 Clearly not. And, this case, unlike Bansraj v Attorney General, does not have any reference to real property, in relation to which actions between subjects are common place and orders for injunctions and for specific performance normative. 37. The point is, on its own terms, section 22 of the SLPA appears contextually limited to typical civil law actions and subsection 22(2) further limited to relief as might in proceedings between subjects be granted by way of injunction or specific performance. Because of the factual circumstances of Bansraj v Attorney General, it is understandable why, given these (2) A declaration may be made or an injunction granted under this subsection in any case where an application for judicial review seeking such relief has been made, and the Court considers that, having regard to (a) the nature of the matters in respect of which relief may be granted by orders of mandamus, prohibition or certiorari; (b) the nature of the persons and bodies against whom relief may be granted by such order; and (c) all the circumstances of the case, it would be just and convenient for the declaration to be made or injunction to be granted, as the case may be. (3) In any law (a) reference to a writ of mandamus, prohibition or certiorari shall be read as reference to the corresponding order; and (b) reference to the issue or award of any such writ shall be read as reference to the making of the corresponding order. (4) On an application for judicial review, the Court may award damages to the applicant if (a) the applicant has included in the application a claim for damages arising from any matter to which the application relates; and (b) the Court is satisfied that, if the claim has been made in an action begun by the applicant at the time of making the application, the applicant could have been awarded damages. (5) The Court, having regard to all the circumstances, may grant in addition or alternatively an order for restitution or for the return of property, real or personal. 22 (2002) 60 WIR 448 at 458, paragraph 29. Page 17 of 31

18 limitations, section 22 of the SLPA was interpreted and applied as limiting the broad remedial powers provided for by section 14(2) of the Constitution. 38. Finally, section 22 of the SLPA appears in Part II of the Act, which deals with Jurisdiction and Procedure. Given the purpose of the SLPA and the specific exception of public law actions from the definition of civil proceedings, when one considers the effect of section 25 of the SLPA (which deals with the scope of Part II of the Act), it is reasonable to infer that on an intratextual interpretation of the SLPA, the limitation on granting injunctions was not intended to apply per se to public law proceedings. The Meaning of Section 22 (SLPA) in the Context of Section 14 of the Constitution 39. The incorporation of section 22 of the SLPA into section 14 of the Constitution permits it justifiably to be read, interpreted and applied in a narrow, limited and flexible way, given the primary status of the fundamental rights provisions in the Constitution and the virtually unfettered powers of the court to vindicate these rights (confirmed by section 14(2) of the Constitution, which obviously precedes section 14(3) of the Constitution). 40. Such a restrictive reading down of section 22 of the SLPA has been left open to the courts. This is because Parliament in including section 14(3) into the 1976 Constitution, did so by such a general means (the incorporation of the entire SLPA, where the majority of the Act can have no conceivable application), that it was clearly intended to be left to the courts to determine the ambit of its application to section 14 of the Constitution To this extent, the final determination of the interpretation and application of section 22 of the SLPA in relation to the granting of relief under section 14 of the Constitution, is a policy decision that Parliament has left to the courts to decide. 42. Before exploring this policy issue, it is worth noting that despite Bansraj v Attorney General and the pronouncements there that injunctive relief cannot be granted as final orders in 23 Parliament could, for example, have specified which specific sections of the SLPA were intended to be incorporated into section 14 of the Constitution. Page 18 of 31

19 constitutional proceedings, there are a plethora of cases, including ones upheld by the Privy Council, in which final orders akin to injunctions have been made in constitutional proceedings. 43. Indeed, in Alleyne v Attorney General, 24 a 2015 decision of the Privy Council, Lord Toulson had this to say in relation to the redress available under section 14 of the Constitution: The section does not state what form such redress may take, but it may include an injunction, a declaration, a monetary award or a combination of remedies. 25 It is recognized that the specific issue being addressed here was not before the Board when Lord Toulson made that comment, but nevertheless it is worth noting. 44. In fact, this statement of Lord Toulson needs to be compared with the 2002 statement of Lord Nicholls in Durity v Attorney General, 26 where he stated that s. 22 of the SLPA limits the power of the court to grant injunctions and certain other forms of relief in proceedings against the State, 27 again in circumstances where the specific issue before this court was not before the Board for determination. 45. Nevertheless, there are cases post 1976, where orders akin to injunctive relief were made as final orders in constitutional proceedings. One example is the Maha Sabha radio licence case, where the State was ordered to grant a radio licence. 28 Lord Mance in delivering the judgment of the Board had this to say in relation to the appropriate order (having found a breach of section 4(i) of the Constitution, which guaranteed the right to freedom of expression): 29 As in Observer Publications Ltd v Matthew, so here the Board considers that the only appropriate order is a mandatory order, in this case ordering the Attorney General to do all that is necessary to procure and ensure the issue forthwith to the appellant, Central Broadcasting Systems Ltd (CBSL), of a FM radio broadcasting licence, as applied for on 1 September 2000, on an appropriate frequency to be 24 [2015] UKPC [2015] UKPC 3, paragraph (2002) 60 WIR (2002) 60 WIR 448, paragraph Central Broadcasting Services Ltd. and Another v Attorney General [2006] 1 WLR Central Broadcasting Services Ltd. and Another v Attorney General [2006] 1 WLR 2891 at 2906, paragraph 36. Page 19 of 31

20 agreed with CBSL or, in default of agreement, to be determined by the High Court on application by either party. 46. Another example is the Equal Opportunity Commission case, 30 where the State was ordered to implement The Equal Opportunity Act. Upon concluding that the fundamental right to the protection of the law guaranteed by section 4(b) of the Constitution had been infringed, because of the non-implementation of The Equal Opportunity Act by reason of the State refusing, failing or neglecting to appoint persons to the Equal Opportunity Commission, the Board ordered that: The Equal Opportunity Act should be implemented without further delay These two cases are clear examples, in 2006 and 2008, subsequent to Lord Nicholls statement in Durity in 2002, in which the Privy Council made final orders in constitutional proceedings akin to mandatory injunctive orders. 48. In addition, there is the decision of Bereaux, J. (as he then was) in George Daniel v Attorney General (the wheelchair access case), 32 in which he made the following order (in constitutional proceedings): 33 I shall grant the applicant a declaration that the non-provision by the State of direct public wheelchair access through the public entrance to the Hall of Justice, Knox Street, Port of Spain, is a breach of the applicant s right to liberty under section 4(a) of the Constitution. Pursuant to the provisions of section 14, I shall direct that the State take such immediate steps as are necessary to provide within eighteen (18) months, direct access through the public entrance of the Hall of Justice, Knox Street, Port of Spain, to the applicant and other members of the physically challenged who are wheelchair bound. 30 Suratt v Attorney General [2008] 1 AC Suratt v Attorney General [2008] 1 AC 655 at 677, paragraph 59, per Lady Hale. 32 H.C.A. No. 393 of H.C.A. No. 393 of 2005, page 20, paragraph 29. Page 20 of 31

21 49. This matter went to the Court of Appeal 34 and to the Privy Council, 35 and there were no changes to the mandatory injunctive order made by the trial judge. Indeed, it was upheld. 50. Finally, there are the many death penalty cases from Trinidad and Tobago, where interim stays of execution have been ordered, and final orders made by the Privy Council, all of which are akin to injunctive relief/orders. A single example will suffice. In Thomas v Baptiste, 36 the Board having found a breach of section 4(a) of the Constitution, the due process guarantee, stayed the execution of the applicants until their petitions to the commission have been determined and any report of the commission or ruling of the I.A.C.H.R. has been considered by the authorities of Trinidad and Tobago Clearly, the making of final orders akin to injunctive orders and of interim orders also, have been a feature of the post 1976 constitutional landscape of Trinidad and Tobago. 38 Moreover, this has been so from the highest level of judicial authority, which no doubt in part explains the matter-of-fact statement of Lord Toulson in Alleyne v Attorney General, that constitutional redress includes the granting of injunctions. 52. In all of the above cases, orders could have been made declaratory of the rights of the parties. 39 Thus, declarations could have been made as to entitlement to the radio licence, or as to the obligation to implement the Equal Opportunity Act, or as to the obligation to provide access to disabled persons to the Hall of Justice, or that condemned persons were not to be executed until their due process rights were duly exhausted. But such declarations were clearly not 34 Civ. App. No. 139 of 2007 (Archie, C.J., Kangaloo, J.A. and Mendonca, J.A.). In a short ex tempore judgment, Chief Justice Archie noted, We feel that the relief granted by the judge below afford adequate vindication of the appellant s constitutional right. This is because: The substance of his complaint, is a denial of the access to the Hall of Justice, for the purpose of participating fully in the administration of justice, as any other citizen would be entitled to, and to follow the progress of any matters in which he might be concerned. The Board agreed: The core grievance of the disabled has been recognized (at paragraph 8). And, acceptance of the mandatory order was impliedly recognized (at paragraph 11). 35 [2011] UKPC [2000] 2 AC [2000] 2 AC 1 at page 29E. 38 Senior Counsel for the respondents accepted that this was so; per Mrs. Peake, S.C.: I think it is indisputable that there are many orders made by all of the different levels of the courts which are in constitutional proceedings which are in the nature of injunctions. 39 Section 22(2) SLPA. Page 21 of 31

22 deemed sufficient. And, rightly so, in Trinidad and Tobago. How conceivably could any such mere declarations as to rights effectively achieve the purpose of enforcing or securing the enforcement of the fundamental rights the protection of which the person concerned is entitled In Thomas v Baptiste, following the reading of the death warrant to Thomas in 1998, his lawyers first approached the courts for a stay of execution, pending the hearing and determination of the substantive matter. This application for an interim stay was stoutly resisted by the State. 41 How would it have effectively helped Thomas if an interim declaration had been made, declaring that Thomas was entitled not to be executed until the hearing and determination of the substantive matter challenging the action by the State to execute him, bearing in mind the erosion of trust in the administration of justice that followed the execution of Glen Ashby in 1994 (our local legal historical context)? Indeed Senior Counsel for the respondents in a discussion with the court, 43 submitted that in all of the above stated cases, the orders made were contrary to the Constitution and the law Section 14(2)(b) of the Constitution. 41 I was the trial judge. H.C.A. No of The following interim order was made: an order directing that the sentence of death be not carried out until the hearing and determination of the Applicant s motion. 42 In Trinidad and Tobago the spectre of Glen Ashby (who was executed even after an order for a stay of execution had been granted by the Privy Council having been refused by both the High Court and the Court of Appeal) hangs over our constitutional integrity; a harsh reminder of State disregard for court orders and the rule of law. (See, Amnesty International Report, 1996 Trinidad and Tobago, 1 January 1996, at and Mr. Glen Ashby v Trinidad and Tobago, Communication No. 580/1994, U.N. Doc. CCPR/C/74/D/580/1994 (2002) at 43 Transcript dated 12 th November, 2015, page 98: Justice of Appeal Jamadar: But you would say in law all of those run contrary to 14(3)? Mrs. Peake, S.C.: Absolutely, My Lord. Justice of Appeal Jamadar: So that the Constitutional Court has no power in law, as a final order or as an interim order, to make orders that are injunctive, expressly or impliedly. Mrs. Peake, S.C.: Well, My Lord, I would say that I think a Court, faced with the situation in which the Court was faced in Bansraj, where a bulldozer is coming to knock down my house, is going to strain to grant an order, and that is what it did. Justice of Appeal Jamadar: We are not disputing the conservatory status quo order. Mrs. Peake, S.C.: Yes. Justice of Appeal Jamadar: We are talking about the Daniel Order of my Brother, the Maha Sabha Licence case and every number of cases where, clearly, mandatory form directions or orders are made. All of those orders, in law, are ultra vires the Constitution? Mrs. Peake, S.C.: Well, My Lord, I wouldn t say that, My Lord. What I would say is that in those cases, no submissions were addressed to the Court as to the impact of 14(2) and (3) of the Constitution. Page 22 of 31

23 Yet it appears that the sands of judicial time seem to have buried any broad and pervasive application of the section 22 SLPA limitations on the granting of injunctions in constitutional proceedings. Arguments of per incuriam aside, 45 the weight of judicial precedent is aligned with Lord Toulson s matter-of-fact comment, that injunctive orders can be made in constitutional proceedings. 55. For policy reasons this should be so. What are the consequences that would flow if the approach of the courts in the face of section 14(3) of the Constitution, was that no form of injunctive relief, final or interim, could be granted, but only orders declaratory of the rights of parties can be made? 56. In a sense Bansraj answers the question effectively. Even in public law matters that have a strong affinity to civil proceedings between subjects, such as the invasion of real property, interim injunctive relief by the name of a conservatory order was found to be necessary. Could the State have been allowed to demolish Bansraj s home, while he advanced a legitimate claim for breaches of his fundamental rights? And what of the death penalty cases? Could the State be allowed to execute a condemned prisoner while s/he advanced a legitimate claim for breaches of his/her fundamental rights? Similar questions applied to the factual scenarios in Suratt; Central Broadcasting Services and George Daniel, demonstrate that the consequences of not granting either interim or final injunctive relief in constitutional proceedings, could and/or would have rendered any final vindication of rights vacuous and would consequently undermine the section 14(2) imperative of the Constitution in relation to the courts powers to protect those rights. The ultimate effects of such consequences, are the erosion of public trust and confidence in the administration of justice and public alienation from the Constitution. 46 The interpretation Justice of Appeal Jamadar: But I am asking you whether, in your view, given the incorporation, that is what we are talking about, whether it is possible in law to make those kinds of orders? Mrs. Peake, S.C.: And I am saying, My Lord, in Trinidad and Tobago, having regard to the conjoint effect, it is not possible. 44 By the conjoint effect of section 14(2) and (3) of the Constitution and section 22 of the SLPA. 45 That these cases may have been decided without due regard to the law; in this instance, the implications of section 14(3) of the Constitution. 46 An ancillary consequence is the effect of perpetuating the burden of a historical constitutional millstone which is the residual Crown Colony manifestation of undemocratic and authoritarian elements in the Constitution, which contradict and undermine the Constitution s self-declared aspirations to uphold and protect certain fundamental Page 23 of 31

24 of section 14(3) of the Constitution and the limited application of section 22 of the SLPA, rendered by this judgment, facilitate a shift from alienation to integration and from contradiction to meaning and functionality. 57. Given the primacy of the fundamental rights provisions in the Constitution, and the importance of the overarching constitutional values contained in the Preamble to the Constitution; an interpretation of section 14(3) of the Constitution and of the application of section 22 of the SLPA that least inhibits the power given by section 14(2) of the Constitution to grant effective and appropriate relief for the purpose of enforcing and/or securing the protection of the fundamental rights of citizens, is more consistent with the underlying values of the Constitution (as aforesaid) and more aligned with upholding the rule of law in constitutional proceedings where infringements of the human rights provisions are alleged. The Protection and Safety of Minors 58. This case however contains a further feature, in addition to it being a constitutional motion, it concerns alleged breaches of fundamental rights in relation to a minor. In a similar and related matter, involving this appellant s minor brother, 47 this court stated as follows in relation to the trial judge s jurisdiction to make interim orders: 26. In addition to the judge s jurisdiction and powers under the Judicial Review Act and the Constitution, regard is to be had for the provisions of the Children Act, The Children s Community Residences, Foster Care and Nurseries Act and The Children s Authority Act. With respect to the latter, the long title captures its purpose and intent as follows: An Act to establish a Children s Authority of Trinidad and Tobago to act as the guardian of the children of Trinidad and Tobago. 27. Section 3 of the Children s Authority Act defines court as the court with jurisdiction for family matters (which is not the same as the Family Court and in human rights. (See the JEITT 2016 Distinguished Jurist Lecture by Professor Richard Drayton: Whose Constitution? Law, Justice and History in the Caribbean. ) 47 The Chief Magistrate and Attorney General v BS, Civ. App. No. P 252 of Page 24 of 31