IN THE COURT OF APPEAL BETWEEN STEVE FERGUSON ISHWAR GALBARANSINGH AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Civil Appeal No: 185 of 2010 HCA No: CV of 2008 BETWEEN STEVE FERGUSON ISHWAR GALBARANSINGH APPELLANTS AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO HIS WORSHIP SHERMAN MC NICHOLLS CHIEF MAGISTRATE RESPONDENTS PANEL: W. Kangaloo, J.A. A. Mendonça, J.A. P, Weekes, J.A. APPEARANCES: Mr. F. Hosein, S.C. and Mr. R. Dass appeared on behalf of the Appellant, Steve Ferguson, Mr. R. Persad appeared on behalf of the Appellant, Ishwar Galbaransingh. Mr. A. Sinanan, S.C appeared on behalf of the Attorney General DATE DELIVERED: December 17 th,

2 JUDGMENT Delivered by A. Mendonça, J.A. 1. This is an appeal from the judgment of Kokaram J, dismissing the Appellants motion whereby they sought a declaration that certain sections of the Extradition (Commonwealth and Foreign Territories) Act (the Act) infringe their fundamental rights and freedoms guaranteed by sections 4 and 5 of the Constitution. 2. The Appellants reside in this country. An extradition request was made by the United States of America (USA) pursuant to the Act for the extradition of the Appellants to stand trial for a number of offences which arose out of the construction of the Piarco International Airport and include money laundering and wire fraud. On July 14 th, 2008 the Appellants were committed by the then Chief Magistrate (the Second Respondent) to await extradition to the USA. 3. Since the committal of the Appellants by the Chief Magistrate there have been several challenges by the Appellants to the extradition process, which would serve to explain the reason that they have not been extradited to the USA despite the committal order having been made in There was first the challenge to the authority to proceed issued by the Attorney General under the Act. This was by way of judicial review proceedings which were heard before Bereaux J, (as he then was) and were dismissed. The appeal to the Court of Appeal was also dismissed. 4. There were also habeas corpus proceedings which were dismissed on May 6 th, 2009 and the appeal to the Court of Appeal from that decision was also dismissed. A subsequent application to the Privy Council for special leave to appeal from the Court of Appeal s decision was refused. More recently, the Attorney General s order for the return of the Appellants was challenged by way of judicial review proceedings. These proceedings were dismissed. The Appellants have appealed from that decision and in fact that appeal and this appeal were heard together. The Court s decision on the appeal from the Attorney General s 2

3 decision for the return of the Appellants is the subject of separate judgments. 5. By these proceedings the Appellants claim that certain provisions of the Act are unconstitutional. Before the trial Judge they contended that sections 9, 12 and 19A of the Act infringe the fundamental rights enshrined in the Constitution in sections 4(a), (b) and (g) and sections 5(2)(a), (b), (e) and (h). They further argued that section 19A (2)(c) infringed the principle of equality of arms and that 19A(2)(a) and (b) violate their right to equality before the law. They also contended that sections 3, 4, 6(1)(c), 8(3)(c), 9, 10, 11, 16 and 19A (1)(b) of the Act violate the doctrine of the separation of powers inherent in the Constitution. The Judge rejected these contentions and found that the Act did not offend against the Constitution. Before this Court the Appellants have renewed their challenges. They have argued that sections 9, 12 and 19A of the Act infringe the fundamental rights provisions that were argued before the Judge and also have contended that section 4(c) of the Constitution has been infringed by the said provisions of the Act as well. With respect to the separation of powers argument, however, they have focused on section 4 of the Act. 6. There are therefore four challenges to various provisions of the Act, namely, (1) that they infringe the fundamental rights provisions, (2) that they violate the principle of the equality of arms which may be regarded as an aspect of due process and part of the fundamental rights but which I will discuss here separately, (3) that they infringe their right to equality before the law, which is a fundamental right, but which I will also treat with separately, and (4) they violate the principle of the separation of powers. It will be best to approach this judgment by considering each challenge in turn, and I will start with the challenge to the fundamental rights provisions. 7. The rights which are allegedly infringed are essentially, (1) the right not to be deprived of one s liberty and security of the person except by due process of law (section 4(a)) of the Constitution, (2) the right of the individual to equality before the law and protection of the law (section 4(b)), and (3) the right of the individual to respect for his private and family life (section 4(c)), and (4) the right to freedom of movement (section 4(g)). As I have mentioned it is alleged that these rights are violated by sections 9, 12 and 19A of the Act which for convenience I set out hereunder: 3

4 9. ((1) Subject to the provisions of this Act relating to provisional warrants, a person shall not be dealt with thereunder except in pursuance of an order of the Attorney General (hereafter referred to as an authority to proceed), issued in pursuance of a request made to the Attorney General by or on behalf of the Government of the declared Commonwealth territory, or the declared foreign territory, in which the person to be returned is accused or was convicted. (2) There shall be furnished with any request made for the purposes of this section on behalf of any territory a record of the case which shall include - (a) (b) in the case of a person accused of an extraditable offence, a warrant for his arrest issued in that territory and a document summarizing the evidence available to that territory for use in the prosecution of the person; in the case of a person unlawfully at large after conviction of an extraditable offence, a certificate of the conviction and sentence in that territory, and statement of the amount, if any, of that sentence which has been served; together in each case with - (c) particulars of the person whose return is requested; (d) (e) (f) particulars of the facts upon which and the law under which he is accused or was convicted; evidence that provision is made by the law of that territory for the specialty rule provided for by section 8(3), where the specialty rule is not made by an arrangement with that territory; and evidence sufficient to justify the issue of a warrant for his arrest under section 10. (3) On receipt of a request made for the purposes of this section on behalf of any territory, the Attorney General may, in the form set out in Form 1 in the Second Schedule, issue an authority to proceed signifying to a Magistrate that a request has been made and requiring him to proceed with the case in accordance with the provisions of this Act. 4

5 (4) The Attorney General may receive supplementary evidence to the record of the case and re-issue an authority to proceed to replace one issued under subsection (3) of this subsection at any time before proceedings under section 12 begin, and all previous documents issued and orders made by the Magistrate apply in respect of a re-issued authority to proceed, unless the Magistrate, on application of the person or the Attorney General, orders otherwise. (5) Where the Attorney General re-issues an authority to proceed under subsection (4) and the person applies for another date to be set for the beginning of proceedings under section 12, in order to give the person an opportunity to examine the reissued authority to proceed, the Magistrate may set another date for the hearing. (6) The Attorney General may amend the authority to proceed after the hearing has begun in accordance with the evidence that is produced during the hearing. (7) The Attorney General may not issue an authority to proceed or may withdraw one already issued if it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Act. (8) Where the Attorney General withdraws an authority to proceed after proceedings under section 12 have begun, the Magistrate shall discharge the person and set aside any order made with respect to the remand of the person in custody or on bail. 12. (1) A person arrested in pursuance of a warrant issued under section 10 and in respect of whom no order under section 11(2) has been made shall [unless previously discharged under section 10(3)], be brought as soon as practicable before a Magistrate. (2) For the purposes of proceedings under this section a Magistrate shall have the like jurisdiction and powers, as nearly as may be, including power to adjourn the case and meanwhile to remand the person arrested under the warrant either in custody or on bail, as when the Magistrate is acting at a preliminary enquiry. (3) Where any person is arrested and in custody by virtue of a provisional warrant but no authority to proceed has been received in respect of him, the Magistrate may fix a reasonable 5

6 period (of which the Magistrate shall give notice to the Attorney General) after which the person will be discharged from custody unless the authority to proceed has been received. (4) Where an authority to proceed has been issued in respect of the person arrested and the Magistrate is satisfied, after hearing any evidence tendered in support of the request for the return of that person or on behalf of that person, that the offence to which the authority to proceed relates is an extraditable offence and is further satisfied - (a) Where the person is accused of the offence, that - (i) there is evidence admissible under this Act of conduct that, had it occurred in Trinidad and Tobago, would justify committal for trial in Trinidad and Tobago for the offence set out in the authority to proceed; and (ii) the person is the person sought by the declared Commonwealth or foreign territory; or (b) where the person is alleged to be unlawfully at large after conviction of the offence, that - (i) (ii) the conviction was in respect of conduct that corresponds to the offence set out in the authority to proceed; the person is the person who was convicted; and (iii) the person appears to be unlawfully at large, the Magistrate shall, unless his committal is prohibited by any other provision of this Act, commit him to custody by warrant in the form set out in Form 6 in the Second Schedule to await the warrant of the Attorney General for his return; but if the Magistrate is not so satisfied or if the committal of that person is so prohibited, the Magistrate shall discharge him from custody. 19A. (1) Subject to subsection (2), evidence that would otherwise be admissible under the laws of Trinidad and Tobago shall be admitted as evidence at an extradition hearing. 6

7 (2) The following evidence is admissible in proceedings under this Act, even if the evidence would not otherwise be admissible under the laws of Trinidad an Tobago (a) (b) (c) the contends of the documents contained in the record of the case or in supplementary evidence, certified under subsection (5); the contents of the documents that are submitted in conformity with the terms of a treaty with a declared foreign territory; and evidence adduced by the person whose return is sought that is relevant to the tests set out in section 12(4) if the Magistrate considers it reliable. (3) A document purporting to have been signed by a judicial, prosecuting or penal authority, or other officer administering a Government Department, of the declared Commonwealth or foreign territory shall be admitted without proof of the signature or official character of the person appearing to have signed it. (4) A translation of a document into English shall be admitted into evidence only where it is certified by a judicial, prosecuting or penal her officer administering a Government Department, of the declared Commonwealth or foreign territory and purports to be an accurate translation of the original document. (5) A record of the case or supplementary evidence shall not be admitted unless - (a) in the case of a person who is accused of an extraditable offence, a judicial or prosecuting authority of the declared Commonwealth or foreign territory certifies that the evidence summarized or contained in the record of the case or in the supplementary evidence is in a form that would be admissible at the trial; and (i) (ii) was gathered according to the law of that territory; or is sufficient under the law of that territory to justify prosecution; or (b) in the case of a person who is alleged to be unlawfully at large after conviction of an extraditable offence, a judicial, prosecuting or penal authority of the declared Commonwealth 7

8 or foreign territory certifies that the documents in the record of the case or in the supplementary evidence are accurate; and (c) each document contained in the record of the case or in supplementary evidence bears the signature of the certifying official. 8. I should note that the Appellants in this appeal were separately represented. The oral and written arguments were essentially made by Mr. Hosein who appeared for Mr. Ferguson but they were, for all intents and purposes, adopted by the other Appellant. Reference therefore to the arguments of Counsel in this judgment are therefore to be understood as referring to the arguments advanced on behalf of both Appellants. 9. The Appellants argument is that for the main part the rules and guidelines which informed the extradition process before the Act were to be found in the Extradition Acts of the United Kingdom 1870 to These laws were saved by section 6 of the Constitution and could not therefore be invalidated by anything in the fundamental rights provisions of the Constitution. The saved extradition laws governed extradition in this jurisdiction until their repeal by the Act which was passed in 1985 and amended in Under section 6(1)(c) of the Constitution sections 4 and 5 of the Act shall not invalidate an enactment that alters an existing law but does not derogate from any fundamental right in a manner in which or to an extent to which the existing law did not previously derogate from that right. Counsel submitted that the Act, which replaced the saved extradition laws, altered them and allowed for fundamental rights derogations in a manner in which and to an extent to which the earlier extradition laws did not. Counsel argued that sections 9, 12 and 19A of the Act when read together introduce a change of a very fundamental nature pertaining to the admissibility of evidence. The Act permits the tendering of evidence via the record of the case procedure which was the procedure used in the extradition process relating to the Appellants. This renders evidence admissible that may not have been admissible under the provisions of the previous extradition laws. The Magistrate is therefore powerless to refuse to admit such evidence in proceedings before him under the Act. It is possible, therefore, that an accused may be extradited on hearsay, opinion evidence or other inadmissible evidence. To compound matters, the evidence may not be under oath and a summary of the evidence is sufficient. Further Counsel submitted that it is not an obligation on the part of the requesting 8

9 State to satisfy the Magistrate that the evidence upon which it relies is available for trial of the accused. When all of this is considered alongside the fact that the Magistrate has no basis to weigh evidence that is admissible under the Act, even though it may be highly suspect, it converts what should, according to the demands of fundamental justice or due process, be a meaningful judicial hearing into a meaningless one - a rubber stamping exercise. The deprivation of a meaningful judicial hearing, Counsel submitted, is a very grave curtailment of the fundamental rights of the individual to liberty, freedom of movement and respect for his family and private life and more significantly it is a curtailment that did not exist prior to the Act. It was also submitted that once it is accepted that the Act violates the requirements of fundamental justice or due process in section 4(a) of the Constitution, in that it deprives the accused of a meaningful judicial hearing, then the natural corollary to that would be a finding that the Appellants right to the protection of the law is also violated. In those circumstances Counsel submitted that sections 9, 12 and 19A derogate from the fundamental rights in a manner in which and to an extent to which the previous extradition law did not. Thus under section 6(2) of the Constitution they should be replaced with sections 9, 10, 14 and 15 of the 1870 Act. 10. It can be seen quite clearly from the above mentioned outline of the Appellants submissions that the argument proceeds on the basis that the Act derogates in a greater manner in which or to a greater extent to which the earlier extradition laws did not. The question to the Appellants is, therefore, whether the Act derogates from the fundamental rights provisions in a manner in which and to an extent to which the existing extradition laws did not previously derogate. The question is posed in that way because it is premised on the basis that extradition is per se unconstitutional. Thus any act that authorizes extradition will be unconstitutional. From the Appellants point of view the previous extradition laws were unconstitutional but they were saved by section 6 of the Constitution. The question therefore becomes on that premise whether the Act derogates in a manner and to the extent to which the previous laws did not. 11. Counsel for the Respondent refutes the proposition that extradition is in itself unconstitutional. To the Respondent, the question is simply whether the Act is unconstitutional. On the arguments, the question that must first be asked is whether the 9

10 Appellants premise that extradition is per se unconstitutional is correct. If the answer to that is in the negative then the next question is whether the impugned provisions offend against section 4 and 5 of the constitution. It is only if they do it seems to me that the question whether they are saved by s. 6 would arise for consideration. 12. In support of their contention that extradition is in itself unconstitutional, reference was made by the Appellants to several cases to demonstrate that extradition impacts upon the liberty and security of person. For example in Civil Appeal 119 of 2004 The Commissioner of Prisons v Farouk Warris, Sharma, C.J in giving the judgment of the Court emphasized the need for strict observance of the rules and statutes governing the extradition procedure and stated: The need for such stern adherence must be underscored and it is at once apparent as the end result of extradition is the deprivation of a person s liberty and subjection to a foreign jurisdiction. 13. There can be no doubt that extradition does impact on a person s liberty and right to security of the person. But the rights guaranteed by section 4(a) are not absolute. This section recognizes that a person may be deprived of those rights so long as this is done in accordance with due process of law. Extradition, therefore, that is carried out in accordance with due process of law would not violate section 4(a). Whether the Act violates the rights guaranteed by section 4(a), therefore, depends on whether it preserves the individual s entitlement to due process. 14. Counsel for the Appellants, however, argued that the other fundamental rights which the Appellants alleged are violated by extradition are not qualified in the Constitution as is done in section 4(a). These rights are unqualified, namely the right to respect for one s private and family life and the right to freedom of movement. With respect to the former reference was made to Bermingham v Serious Fraud Office [2007] 2 WLR 635. In that case Laws, L.J noted that there was no doubt that the proposed extradition would constitute interference with the defendants rights under Article 8 [of the European Convention for the Protection of Human Rights and Fundamental Freedoms] which recognized the individual right to respect for his private and family life, his home and his correspondence. 10

11 15. With respect to the right to freedom of movement, the Appellants submitted that freedom of movement extends to protect the individual s right to move freely throughout the country, to enter, reside and remain in it. It therefore guards against expulsion from the country. Counsel also referred to Privy Council appeal No. 2 of 2007 Trevor Forbes v The Director of Public Prosecutions. In this case the Privy Council considered a challenge to the Jamaican Extradition Act, 1991 on the ground that it infringed section 16(1) of the Jamaican Constitution, which provided that no person shall be deprived of his freedom of movement. The Judicial Committee noted that had the section stood alone, the Appellants extradition would be an infringement of his right to freedom of movement. 16. As in the case of the rights of liberty and security of the person there can be no doubt that extradition does impact on one s right to freedom of movement and to have one s family and private life respected. However the fact that this is so does not necessarily mean that the Act infringes those rights. It is now well settled that even though some fundamental rights are expressed in unqualified terms, they are subject to limitation. 17. In Privy Council Appeal No. 18 of 2003 Roodal v The State Lord Steyn, speaking for the majority, said (at para.20): The bill of rights under the 1976 Constitution was cast in absolute terms. There are undoubtedly implied limitations on these guarantees. 18. In Collymore v The Attorney General (1976) 12WIR 5 Wooding, C.J was of the similar mind when he said (at p.5): In my judgment, then, freedom of association means no more than freedom to enter into consensual arrangements to promote the common -interest objects of the associating groups. The objects may be any of many. But the freedom to associate confers neither right nor licence for a course of conduct or for the commission of acts which in the view of Parliament are inimical to the peace, order and good government of the country. In like manner, their constitutionally-guaranteed existence notwithstanding, freedom of movement is no licence to trespass, freedom of conscience no licence for sedition, freedom of expression no licence for obscenity, freedom of assembly no licence for riot and freedom of press no licence for libel. 11

12 19. Like the Judicial Committee therefore Wooding, C.J was clearly of the view that there were implied limitations to rights that may be expressed in absolute terms. 20. Similarly in Panday v Gordon [2006] 1 AC 427 Lord Nicholls in giving the judgment of the Judicial Committee stated (at p 439 para. 22): The general format of section 4 is to list rights, such as freedom of the press, briefly and without elaboration. Plainly the intention was that the courts should work out the practical detail. The content of the rights was a matter for the judges. Necessarily so, not least because some of the listed rights may sometimes be in conflict with each other. As noted by Cory, J in the Supreme Court of Canada, publication of defamatory statements constitutes an invasion of the individual s personal privacy and is an affront to that person s dignity. Hill v Church of Scientology of Toronto (1995) 126 DLR (4 th ) 129, 164 para 121. Thus freedom of expression and the right to respect for private life, both of which are listed without qualification in section 4, may sometimes collide. The Constitution does not attempt to resolve problems of this kind. These are matters left to the judges. It is for the courts to decide, in a principled and rational way, how the fundamental rights and freedoms listed in the Constitution are to be applied in the multitude of different sets of circumstances which arise in practice. It is for the courts to decide what is the extent of the protection afforded by these constitutional guarantees. 21. The Privy Council was therefore of the view that the rights in the bill of rights were stated briefly and even where stated in unqualified terms, that did not mean that they were without any limitation. It is for the Courts to work out the practical detail. The contents of the rights were a matter for the Judges. The Privy Council recognized the necessity to limit the content of the rights not least because the rights may sometimes be in conflict with each other. By saying that, the Judicial Committee appeared to be accepting that it may be necessary to limit the generality of the right for other reasons. One such reason it seems to me is where the guaranteed right is in conflict with values that are widely shared by society. An example of this is Privy Council appeal l84 of 2006 Kenneth Suratt and Others v The Attorney General. One of the issues in this case is whether section 7 of the Equal Opportunity Act, 2000 which prohibited, inter alia, any act which was done with the intention of inciting gender, racial or religious hatred, was unconstitutional. The Judicial Committee held that it was not. Baroness Hale, in giving the judgment of the majority, was of the opinion that that section did impinge on the right to freedom of expression but 12

13 arguably went no further than the existing law. Even if it did, it was merely bringing the law into conformity with all the modern human rights instruments which recognize sex or gender among the prohibited grounds of discrimination. 22. I do not think that it can be denied as stated in US v Cotroni, [ SCR 469 that extradition serves to promote a number of values that are central to a free and democratic society. These include bringing to justice a fugitive for the proper determination of guilt or innocence, and the maintaining of peace and public order. In Cotroni, the Supreme Court of Canada highlighted the importance and values of extradition in a democratic society where it said (at paras 27-30): The objectives sought by the legislation, the parties agree, relate to concerns that are pressing and substantial. The investigation, prosecution and suppression of crime for the protection of the citizen and the maintenance of peace and public order is an important goal of all organized societies. The pursuit of that goal cannot realistically be confined within national boundaries. That has long been the case but it is increasingly evident today. Modern communications have shrunk the world and made McLuhan s global village a reality. The only respect paid by the international criminal community to national boundaries is when these can serve as a means to frustrate the efforts of law enforcement and judicial authorities. The trafficking in drugs, with which we are here concerned, is an international enterprise and requires effective tools of international cooperation for its investigation, prosecution and suppression. Extradition is an important and well-established tool for effecting this cooperation. The importance of extradition for the protection of the Canadian public against crime can scarcely be exaggerated. To afford that protection, there must be arrangements that ensure prosecution not only of those who commit crimes while they are physically in Canada and escape abroad, but also of those whose acts abroad have criminal effects in this country. This requires reciprocal arrangements with other states seeking similar objectives. What is more, I do not think that the free and democratic society that is Canada, any more than any other modern society, should today confine itself to parochial and nationalistic concepts of community. Canadians today form part of an emerging world community from which not only benefits but responsibilities flow. This is consistent with the approach taken by this Court in Libman v The Queen, supra, at p. 214, where after stating that we should not be indifferent to the protection of the public in other countries, I added, at p. 214: 13

14 In a shrinking world, we are all our brother s keepers. In the criminal arena this is underlined by the international cooperative schemes that have been developed among national law enforcement bodies. In a similar vein, Lord Salmon in Director of Public Prosecutions v Doot, [1973] A.C. 807, in a passage (at p. 834) cited with approval in Libman v The Queen, at pp , stated: I do not believe that any civilized country, even assuming that its own laws do not recognize conspiracy as a criminal offence, could today have any reasonable objection to its nationals being arrested, tried and convicted by English courts in the circumstances to which I have referred. Today, crime is an international problem -- perhaps not least crimes connected with the illicit drug traffic -- and there is a great deal of cooperation between the nations to bring criminals to justice. Great care also is taken by most countries to do nothing which might help their own nationals to commit what would be crimes in other countries: see, for example, section 3(2) of the Dangerous Drugs Act As he made clear elsewhere (at p. 831), the fact that the relevant crimes were more likely to ruin young lives in the United States of America than in this country... is not of any great moment. There is another aspect respecting the objectives of extradition worth mentioning. As I earlier indicated, these objectives go beyond that of suppressing crime, simpliciter, and include bringing fugitives to justice for the proper determination of their guilt or innocence. (Indeed most extradition cases, like the case here, involve accused, rather than convicted persons.) Extradition thus shares one of the basic objectives of all criminal prosecutions: to discover the truth in respect of the charges brought against the accused in a proper hearing. This is one of the interests of society referred to by Dickson C.J. in R. v Oakes, which must, under s. 1 of the Charter, be balanced against the interest of the individual. 23. These comments, as they relate to the importance and significance of extradition, apply with equal force to this jurisdiction. Freedom of movement and the right of the individual to respect for his private and family life must be interpreted as subject to implied limitations that would accommodate values that extradition promotes. In any event these rights must also be interpreted in such a way as to be consistent with and to accommodate 14

15 other fundamental rights. There can be no argument that freedom of movement and respect for one s private and family life must be interpreted to accommodate an individual s arrest and detention in accordance with due process of law. Just as this is so, these rights must also be interpreted as permitting extradition which is carried out in accordance with due process of law. In my judgment the rights to freedom of movement and the right of the individual to respect for his private and family life must be interpreted as permitting extradition conducted in accordance with due process. Those rights can guarantee no more than section 4(a), which guarantees the right of the individual not to be deprived of his liberty and security of the person except by due process of law. Put another way the section 4(a) rights are an implied limitation upon the rights to respect for one s private and family life and freedom of movement. In my judgment therefore extradition in itself is not unconstitutional. The real question, it seems to me therefore, is whether the extradition process provided for by the Act is compliant with due process of law. 24. Before I turn to consider whether the Act comports with the requirement of due process, I must refer to an argument of the Appellants that touched on the proper approach where there is a challenge to legislation on the basis that it infringes the fundamental rights. 25. Counsel submitted that the Judge in coming to his decision that the fundamental rights were not infringed indorsed the proportionality test. This, the Appellants submitted, is evident from the following passage, among others, in his judgment: while certain rights are non-derogable, others must give way to such reasonable limitations as are necessary and justified in a free and democratic society. 26. It was submitted that this was an endorsement of the proportionality. This test as recently enunciated in Suratt, supra, recognizes that the fundamental rights are not unqualified and may be limited by legislation that pursues a legitimate aim and is proportionate to it. Where therefore legislation is challenged on the basis that it infringes a fundamental right the Court must ask the question whether the limitation pursues a legitimate aim and is proportionate to it. Counsel submitted that to adopt that test flies in the face of section 13 of the Constitution. Section 13 of the Constitution preserves the validity of an act 15

16 which is inconsistent with a fundamental right guaranteed by the Constitution if it has been passed by a three fifths majority of all the members of each House of Parliament, declares itself to be inconsistent with the fundamental rights provisions and is not shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual. 27. Under section 13, therefore, Parliament must first declare the legislation to be inconsistent with the fundamental rights provisions and ensure that it is passed by the appropriate majority. Where this is done, the legislation may still be challenged on the ground that it is not reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual. It is for the Court to determine this but the first say as to whether the Act is inconsistent with the Constitution rests with Parliament which must ensure that it is passed by the appropriate majority. 28. Counsel submitted that the proportionality test bypasses the mechanism in section 13 and gives the Courts the first say as to what is a reasonable limitation upon a fundamental right when that role is reserved by the Constitution to Parliament. It accordingly ignores the protection inherent in the mechanism provided by s It was submitted: to put the matter quite simply - if a parliamentary majority was not needed in the case of Acts which allowed fundamental right derogations that were viewed as proportionate to their legitimate aim, then it follows quite naturally that a parliamentary majority would only be needed for Acts which are disproportionate to their legitimate aim - which would then render the Act subject to an invalidity challenge in terms of the proviso to section 13(1). This situation borders on the absurd. The protection afforded by the need for Parliament to seek the higher consensus before passing laws which derogate from fundamental rights provisions would then be weakened to the point of obliteration. 30. Counsel also referred to the following passage in Hinds and Others v The Queen [1977] AC 195, 214 where Lord Diplock underlined the mechanism in the Constitution for altering it and emphasized that in considering whether any ordinary law is inconsistent with the Constitution the propriety or expediency of the law are not concerns of the Court: 16

17 One final general observation: where, as in the instant case, a constitution on the Westminister model represents the final step in the attainment of full independence by the peoples of a former colony or protectorate, the constitution provides machinery whereby any of its provisions, whether relating to fundamental rights and freedoms or to the structure of government and the allocation to its various organs of legislative, executive or judicial powers, may be altered by those peoples through their elected representatives in this Parliament acting by specified majorities, which is generally all that is required, though exceptionally as respects some provisions the alteration may be subject also to confirmation by a direct vote of the peoples themselves. The purpose of this machinery for entrenchment is to ensure that those provisions which were regarded as important safeguards by the political parties in Jamaica, minority and majority alike, who took part in the negotiations which led up to the constitution, should not be altered without mature consideration by the Parliament and the consent of a larger proportion of its members then the bare majority required for ordinary laws. So in deciding whether any provisions of a law passed by the Parliament of Jamaica as an ordinary law are inconsistent with the constitution of Jamaica, nether the Courts of Jamaica nor the Lordships Board are concerned with the propriety or expediency of the law impugned. They are concerned solely with whether those provisions however reasonable and expedient, are of such character that they conflict with an entrenched provision of the Constitution and so can be validly passed only after the Constitution has been amended by the method laid down by it for altering that entrenched provision. The proportionality test, it was submitted, goes contrary to that statement in Hinds since it has at its core the propriety and expediency of the law. To adopt an approach of qualifying the fundamental rights by reference to the legislation s justifiability would be to give the legislature a licence to circumvent the entrenchment machinery mandated by the Constitution allowing it to pass, with ordinary majorities, laws which it believes to be justifiable and proper. 31. Counsel s submissions are not without merit and raise concerns of constitutional and fundamental importance. I may mention that others have raised concerns relating to the proportionality test (see the keynote address delivered in November 2009 by Justice de la Bastide, President of the Caribbean Court of Justice on the occasion of the inaugural symposium Current Developments in Caribbean Community Law. ) The fact, however, is that Suratt which applied the proportionality test is binding on this Court even if it did so, as is the case, without a consideration of any of the issues raised by Counsel and whether it is 17

18 appropriate in the context of our Constitution. It should be noted that the test was again recently applied by the Privy Council in Public Service Appeal Board v Omar Maraj [2010] (UKPC 29). 32. Of course Hinds is also binding on this Court. In so far as it states that the expediency and propriety of a law that is not passed by a special majority. are not the concerns of the Court in determining its constitutionality, it seems to be inconsistent with Suratt and Omar Maraj. If this is so, the question that may arise is which one should be followed. In this regard it is relevant to note that Hinds was referred to in Suratt and there was no indication that there was any disagreement or intention to modify what was said in it. The inference is that the cases were not seen to be inconsistent. Perhaps the reason for this maybe that Lord Diplock s comments seem to be more directed to the machinery for amending entrenched provisions in the Constitution and not to where an act may be inconsistent with the provision of the Constitution. Suratt is however directly relevant to that question. In any event Lord Diplock s comments were by way of general observation whereas the statements in Suratt relating to the proportionality test are relevant to the ratio of that case. The same can be said for Omar Maraj. Suratt, therefore, is the authority that is applicable to a case where consideration is being given to whether an ordinary law infringes upon the fundamental rights provision. Having said that however, I do not consider that it is necessary to apply the proportionality test in this case and I have not. This case seems to me to be a case where the rights in question are in conflict within each other and comes within the line of authority referred to earlier. The right to freedom of movement and the right to respect for one s family and private life are impacted upon when the individual is deprived of his liberty. The right to liberty and security of the person are not unqualified. A person may be deprived of them if the deprivation is done in accordance with due process of law. The right to freedom of movement and to respect for one s family and life can guarantee no more in this case than what is guaranteed by section 4(a) which must be read as a limitation to those rights. The enquiry in this case is therefore whether the impugned provisions of the Act comport with requirement of due process of law. It will be seen that I have concluded that it does. The position seems to me to be an a fortiori one if the proportionality test were applied. 18

19 33. What is meant by due process of law in the constitutional context has been explained by the Privy Council. In Thomas v Baptiste [2000] 2 AC 1, Lord Millett stated: Due process of law is a compendious expression in which the word law does not refer to any particular law and is not a synonym for common law or statute. Rather it invokes the concept of the rule of law itself and the universally accepted standards of justice observed by civilized nations which observe the rule of law The clause gives constitutional protection to the concept of procedural fairness. 34. In Privy Council Appeal 51 of 2004 The State v Brad Boyce, Lord Hoffmann contrasted the term due process when used in a constitutional context and when used in a broader context. He stated (at paras. 13 and 14): 13 In one sense to say that an accused person is entitled to due process of law means that he is entitled to be tried according to law. In this sense, the concept of due process incorporates observance of all the mandatory requirements of criminal procedure, whatever they may be 14 But due process of law also has a narrower constitutional meaning, namely those fundamental principles which are necessary for a fair system of justice. 35. Due process of law in the constitutional context therefore refers to the fundamental principles which are necessary for a fair system of justice. It protects the concept of procedural fairness and is a guarantee of fundamental fairness. 36. What fundamental justice requires is contextual. The procedure that in one context would not meet the requirements of fundamental justice may do so in an entirely different context (see US v Yang 203 D.L.R. (4) 337 at para. 42). The nature of the proceedings must therefore be taken into account. It is therefore appropriate to consider that the extradition process is only preliminary to the actual determination of guilt. That adjudication begins in the requesting state, if and when the fugitive is surrendered. It would therefore be incorrect to equate the extradition process to the criminal trial process. As was said in Kindler v Canada (1991) 84 D.L.R. (4) 38 (per Mc Lachlin J. at p. 488): 19

20 While the extradition process is an important part of our system of criminal justice, it would be wrong to equate it to the criminal trial process. It differs from the criminal process in purpose and procedure and most importantly in the factors which render it fair. There was of course no attempt in this case by the Appellants to say that the extradition process should attract the same procedural safeguards as the criminal trial. Instead the main focus of the Appellants, as should be apparent from the outline of the Appellants submissions above, is the process before the Magistrate. Before turning directly to that submission it is appropriate to set out the statutory scheme of the Act particularly as it relates to the magisterial phase of the extradition process. 37. Under the Act a person found in Trinidad and Tobago may be extradited where he is accused of an extraditable offence, or having been convicted of an extraditable offence is alleged to be unlawfully at large. As these proceedings concern the former, that is to say, where the person is accused of an extraditable offence, I will focus on that. There is no dispute in this case that the offences of which the Appellants are accused are extraditable offences within the meaning of the Act. 38. The extradition of a person accused of an extraditable offence usually takes place in five (5) stages. The first two (2) stages are non-judicial and consist of a request by the requesting state for the return of the accused and the issue of an authority to proceed by the Attorney General. 39. The request of the requesting state for the extradition of the person is made to the Attorney General. There must be furnished with the request on behalf of the requesting state a record of the case which shall include, inter alia: (a) a warrant for the arrest of the person issued in the requesting state and a document summarizing the evidence available to that territory for use in the prosecution of the person; (b) particulars of the person whose return is requested; 20

21 (c) particulars of the facts on which and the law under which the accused was convicted; and (d) evidence sufficient to justify the issue of a warrant for his arrest under section 10 of the Act. 40. The second stage is the authority to proceed. On the receipt of a request, the Attorney General may issue an authority to proceed signifying to a Magistrate that a request has been made and requiring him to proceed with the case in accordance with the provisions of the Act. 41. The Attorney General, however, may not issue an authority to proceed, or may withdraw one already issued, if it appears to him that an order for the return of the accused could not lawfully be made, or would not in fact be made, in accordance with the provisions of the Act. Circumstances in which an order for the return of the accused may not be made include, where the offence in respect of which the persons accused is an offence of a political character, that the request for his return, though purporting to be made on account of an extraditable offence, is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, gender, sexual preference, nationality, political opinion or that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, gender, sexual preference, nationality, political opinions. The Attorney General may also refuse to issue the authority to proceed if because of the trivial nature of the offence, or the passage of time since he is alleged to have committed the offence, or that the accusation is not made in good faith in the interest of justice, or for any other sufficient cause, it would having regard to all the circumstances, be unjust or oppressive to return the person. 42. The next two stages are judicial in nature and begin with the issue of a warrant for the arrest of the accused. On receipt of the authority to proceed, the Magistrate may issue a warrant for the arrest of the accused. The warrant may be issued upon such evidence as would, in the opinion of the Magistrate, justify the issue of the warrant for the arrest of the 21

22 person accused of committing a corresponding offence if the offence had been committed in Trinidad and Tobago. A person arrested under the warrant shall be brought as soon as possible before a Magistrate. The Magistrate has the power, inter alia, either to remand the person arrested in custody or on bail. 43. The fourth stage of the extradition process is the committal proceedings before the Magistrate. For the purposes of these proceedings the Magistrate shall have the like jurisdiction and powers as nearly as may be as when he is acting at a preliminary inquiry. The Magistrate shall commit the accused in custody to await the warrant of the Attorney General for his return if satisfied, after hearing any evidence tendered in support of the request for the return of the person or on behalf of that person: (1) that the offence to which the authority to proceed relates is an extradition offence, (2) the accused is the person sought by the requesting state, and (3) there is evidence admissible under the Act of conduct that, had it occurred in Trinidad and Tobago, would justify committal for trial in Trinidad and Tobago for the offence set out in the authority to proceed. If the Magistrate is not so satisfied he shall discharge the accused from custody. 44. The Act also provides that the Magistrate shall not commit the accused if it appears to him that: (a) the offence in respect to which the person is accused is an offence of a political character; (b) the request for his return (though purporting to be made on account of an extraditable offence) is in fact made for the purpose of prosecuting 22

23 or punishing him on account of his race, religion, gender, sexual preference, nationality or political opinions; (c) he might, if returned be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, gender, sexual preference, nationality or political opinions; (d) if charged with the offence in respect of which his extradition is sought in Trinidad and Tobago he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction; (e) there is no provision under the law of the requesting state, or there is no arrangement made with that requesting territory, that the accused will not, until he has left or has been free to leave that territory, be dealt with in that territory for or in respect of any offence committed before his return under the Act other than: (i) the offence in respect of which he is returned; (ii) any lesser offence proved in the committal proceedings before Magistrate; or (iii) any other extraditable offence in respect of which the Attorney General may consent to his being so dealt with. 45. It should be noted that if the Magistrate decides to commit, the accused is entitled to apply to the High Court for habeas corpus. Even before that the accused may challenge the decisions of the Attorney General or the Magistrate, such as the decision to issue the authority to proceed or the warrant of arrest. In addition the High Court may discharge the accused on any of the grounds on which the Magistrate is empowered to refuse to commit. The High Court may also order, without prejudice to any other jurisdiction vested in it, the 23