IN THE HIGH COURT OF JUSTICE BETWEEN

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE BETWEEN THE OWNERS OF THE VESSEL ALAM SELARAS Claimant AND THE OWNERS OF THE VESSEL DIAMOND CAY Defendant Before The Hon. Madam Justice C. Gobin Appearances: Mr. G. Peterson with Ms. Roach for the Claimant Mr. Reid instructed by Ms. Mulligan for the Defendant Mr. Hosein and Ms. Bridgemohansingh instructed by Ms. Alphonso for Petrotrin Mr. Mendes with Mr. Quamina and Ms. Baksh-Clarke Instructed by Ms. Nanan JUDGMENT ON PRELIMINARY POINT 1. On January 8 th 2008 there was a collision at Pointe a Pierre involving the Alam Selaras (a vessel owned by the claimants) and a dumb bunker barge (owned by the intervenors). At the material time the barge was allegedly completely under the control of the Diamond Cay, (a tug owned by the defendant). As a result of the accident the claimants filed this action. They say that their vessel sustained severe damage in excess of US$285, At a case management conference these parties agreed that a preliminary issue should be determined by the Court and it was this: whether there is a limit on the quantum of liability for damage to property under the Page 1 of 12

2 general law, and under S.358, of the Shipping Act Ch. 50:10 and if so what is that limit? 3. On their submissions on this issue, the parties appeared to accept generally the quantum was either one of two figures. On the one hand, if it was to be calculated under the formula set out under S. 359 of the Act, approximately USD 36, On the other hand if effect is to be given to S.410, then by virtue of the provisions of the Convention on the Limitation of Liability for Maritime Claims, there would be a substantial increase to approximately USD 260, Section 410 of the Shipping Act provides: Where an international convention or other international instrument applies to Trinidad and Tobago and a provision of that convention or instrument and a provision of this act conflict in any manner, the provision of the convention or instrument shall prevail unless the Minister otherwise provides. 5. Although Trinidad and Tobago acceded to this convention of February 28, 2000, its terms have not been incorporated into our municipal law through the legislative process. The purported effect of S.410 then, in the circumstances of the government s accession to the treaty is to amend Section 354 (2) of Act (which provides the present limit) through an act of the executive. Page 2 of 12

3 6. On the face of it S.410 breaches both S.53 of the Constitution which vests the power to make laws in the Parliament and not in the executive, as well as S.61 which prescribes the means by which legislative power is to be exercised and this is by the introduction and passage of bills in both houses followed by the President s assent. It purports to enact a self amending device which circumvents the process provided for law making under the Constitution. 7. When it became clear that it was the constitutionality of S.410 that was being challenged, the Attorney General was invited to make submissions. Mr. Mendes SC for the State accepted that prima facie, S. 410 vested in the executive the power to amend or repeal provisions of the Act. However, he submitted that it was not an impermissible delegation of the legislative function of Parliament because the Act was passed in accordance with S.54 of the Constitution. As a result he argued that S.410 validly altered S.53 and S.61. The State supported this contention by affidavit evidence (which was accepted) that the Act was passed in both Houses of Parliament by at least a two-thirds majority. The Intervenor maintained that this was not sufficient to satisfy the procedure under S.54 and that there was a further requirement. In addition to the requirement for the special majority the Act should state that it was one to amend the Constitution. The Shipping Act does not do so. Page 3 of 12

4 8. The issue which I am to decide now, is whether S.410 of the Shipping Act, which the State concedes is inconsistent with Sections 53 and 61 of the Constitution, may be construed as validly altering it. The parties seem to suggest that in resolving it I should limit myself to interpreting S.54 (5). As I understand it, this is because they approach it on the agreed premise that the provisions of the Constitution (even entrenched ones) may be altered impliedly by the passage of the enactment of provisions which are inconsistent with its own. Against that background they say that I must decide only whether there was a requirement for the statement as to the purpose in the Shipping Act. 9. Since I do not accept the premise as to implied alteration I propose to consider the broader question of how entrenched provisions of the Constitution may be altered and then specifically to interpret S.54 (5). 10. I begin with the recognition that ours is a controlled Constitution. Parliament may not simply change its provisions by legislating inconsistently with it by a bare majority. Section (2) provides for the supremacy of the Constitution in these terms This Constitution is the Supreme Law of Trinidad and Tobago and any other law that is inconsistent with this Constitution is void to the extent of the inconsistency. Page 4 of 12

5 11. This broad statement is excepted in two instances. The first is to be found at S.13 which expressly provides for Acts to have effect even though they are inconsistent with entrenched fundamental rights provisions at sections (4) and (5) where three requirements are met. Such Acts must (1) declare inconsistency with Sections (4) and (5); (2) be reasonably justifiable in a society that has proper respect for the rights and freedoms of the individual; (3) be passed in both Houses of Parliament by not less than three-fifths of all members of each house. The second is S. 54 (5) and I shall return to consider it at a later stage. 12. In the face of express provisions as to the limited circumstances in which Acts inconsistent with the provisions of the Constitution may be considered valid, I am unable to agree that there may be alteration by implied amendment. The constitution is not immutable. The framers balanced the need for flexibility in an evolving society with the need to preserve the more important features of our system of Government. They did so by expressly providing a comprehensive regime for alteration of the Constitution by imposing limits on the power to alter it through the provisions of S Section 54 provides as follows: (1) Subject to the provisions of this section, Parliament may alter any of the provisions of this Constitution or (in so far as it forms part of the law of Trinidad and Tobago) any Page 5 of 12

6 of the provisions of the Trinidad and Tobago Independence Act (2) In so far as it alters (a) sections 4 to 14, 20(b), 21, 43(1), 53, 58, 67(2), 70, 83, 101 to 108, 110, 113, 116 to 125 and 133 to 137; or (b) section 3 in its application to any of the provisions of this Constitution specified in paragraph (a), a Bill for an Act under this section shall not be passed by Parliament unless at the final vote thereon in each House it is supported by the votes of not less than two-thirds of all the members of each House. (3) In so far as it alters (a) this section; (b) sections 22, 23,24, 26, 28 to 34, 38 to 40, 46, 49 (1), 51, 55, 61, 63, 64, 68, 69, 71, 72, 87 to 91, 93, 96(4) and (5), 97, 109, 115, 138, 139 or the Second and Third Schedules; (c) (d) section 3 in its application to any of the provisions specified in paragraph (a) or (b); or any of the provisions of the Trinidad and Tobago Independence Act, 1962, a Bill for an Act under this section shall not be passed by Parliament unless it is supported at the final vote thereon (i) in the House of Representatives, by the votes of not less than three-fourths of all the members of the House; and Page 6 of 12

7 (ii) in the Senate, by the votes of not less than two-thirds of all the members of the Senate. (4) For the purposes of subsections (2)and (3) the number of members of the Senate shall, even though circumstances requiring the appointment of temporary members in accordance with section 44(1) have arisen, continue to be the number of members specified in section 40(1). (5) No Act other than an Act making provision for any particular case or class of case, inconsistent with provisions of this Constitution, or (in so far as it forms part of the law of Trinidad and Tobago) any of the provisions of the Trinidad and Tobago Independence Act, 1962, unless it is stated in the Act that it is an Act for that purpose. (6) In this section references to the alteration of any of the provisions of this Constitution or the Trinidad and Tobago Independence Act, 1962, include references to repealing it, with or without re-enactment thereof or the making of different provisions in place thereof or the making of provisions for any particular case or class of case inconsistent therewith, to modifying it and to suspending its operation for any period. 14. It is convenient here to note that the inclusion of this comprehensive regime for alteration distinguishes our constitution from the constitution of Ceylon which was under consideration in the case of Kariapper (Mohammed Sansudeen) v Wijesinha (ss) [1967] 3 W.L.R to which Mr. Hosein SC for the intervenors referred. S.54 (6) stipulates five ways by which the constitution may be amended. They are as follows: Page 7 of 12

8 (1) By repeal with or without re-enactment thereof. (2) By the making of different provisions in place thereof. (3) By making provision for any case or class of case inconsistent therewith. (4) By modifying it. (5) By suspending its operations for any limited period. In the light of the above definition of alterations I am unable to accept the submission of the intervenors that the definition may be extended to include implied amendment of entrenched provisions through inconsistent enactment. 15. Section 54 (6) above does not stand alone. It must be read together with S. 54 (5) and in the context of the entirety of S.54 and with the overriding effect of S.2 in mind. When all things are taken into account I find that I agree with the conclusion of Jones J in her finding in the matter of Integrity in Public Life Act 2000 H.C.A of 2005 that in order to alter provisions identified in S.54 (2) and S.54 (3) the Constitution itself would have to be amended. A Constitution Amendment Bill would have to be introduced in parliament. This is what obviates the necessity for such an act to state its purpose. The title of such a bill would be sufficient to alert members of both houses as to the true colour of the legislation that is up for consideration. The purpose would be obvious from the title. Page 8 of 12

9 16. I am fortified in my view on this point for two further reasons. The first is that any other construction of this would lead to an undesirable result. It would allow for unconscious alteration, an entrenched provision could be altered unconsciously by a side wind if the required majorities voted in Parliament. Moreover this would be achievable with greater ease than in the case of a non-entrenched provision. Secondly, it would lead to two separate and inconsistent modes of amending the entrenched fundamental rights provisions at sections (4) and (5). There would be one method prescribed by S.13 which requires inter alia, a three-fifths majority and a statement as to inconsistency and another under S.54 (2) requiring a two-thirds majority and no statement of purpose. These consequences could not have been intended. 17. I hold that the Constitution permits effective alteration by legislation which is inconsistent with its provisions in two cases. The first is expressly provided for in S.13 in relation to entrenched fundamental rights provisions. The second is under S. 54 (5) which excludes provisions inconsistent with those covered by Sections 54 (2) and 54 (3), but it does not nullify the effect of Section. 54 (2) and (3) which precede it. S. 54 (5) simply permits the alteration of non-entrenched provisions of the constitution by other enactments where such enactments state that they are acts for that purpose, with the express exception that an act which makes provision for any case or class of case which is inconsistent with any non- Page 9 of 12

10 entrenched provision, may be construed as altering the constitution, even in the absence of such a statement. 18. I return to the issue in this case and S.410 of the Shipping Act. There could be few better examples of a provision for a special class of case. The Act makes provision for the registration and licensing of ships, matters relating to crews, safety of lives at sea and matters incidental thereto. In so far as S.410 is concerned, its scope is even more limited in applicability in that it fixes limitation of liability in maritime collisions. It is also a class of case which touches and concerns matters of broader international obligations because of the nature of the shipping business and the obvious need for confidence based on a uniformity of approach in matters of international maritime law and international trade. But it was conceded by the State that S.410 was inconsistent with S.53 and S.61 of the Constitution which are entrenched provisions. In those circumstances in the absence of an amendment to the Constitution itself, this section of the Act cannot be construed as altering S.53 and S.61, even for a special class of case. I find that S.410 of the Shipping Act is null and void and of no effect. 19. I am mindful that a declaration to this effect may have negative implications for persons engaged in an important sphere of international commercial activity and it may place us, that is, the Government of Trinidad and Tobago in an unfavourable position in so far as our international Page 10 of 12

11 obligations are concerned. But the situation can very easily be rectified by simply resorting to the procedure set out under the Constitution. This is hardly likely to be a contentious matter. It is not everyday that the government accedes to international conventions. If they are to be meaningfully adhered to, steps must be taken to properly legislate them into effect. 20. I return to further submissions of the claimants who adopted the arguments of the Attorney General on this issue but reserved their position otherwise. I understand their remaining arguments to be as follows: (1) That S. 410 does not purport to give effect to provisions of Treaties even where such have not been enacted in the Parliament. This is a simple updating device applicable in a very limited sphere which ensures that in it s practice in Maritime Affairs, (given the implication for international trade), that Trinidad and Tobago meets international requirements. (2) Further, that S.410 does not in effect delegate law making power to the executive. (3) That this is a form of legislation common to several neighbouring jurisdictions. (4) That the CPR accepted the limits under the maritime convention. 21. The response to the last two points is simple. The rules of the Court which are in the nature of subsidiary legislation cannot validate legislation which is inconsistent with the Constitution and the fact that this form of Page 11 of 12

12 legislation might be common in our neighbouring jurisdiction makes no difference. It may well be that there are other constitutional arrangements or simply that there has to date been no challenge. 22. On the substantive issue which arises under (1) and (2) above, I have been persuaded by the very comprehensive and lucid (to use State Counsel s words) arguments of Mr. Hosein for the intervenors, that the section purports to impermissibly delegate legislative power to the executive. The concession of Mr. Mendez for the Attorney General, in no small measure, further satisfied me that I should accept the submissions of the Intervenors. 23. Order: The Court declares S.410 of the Shipping Act Ch.50:10 to be unconstitutional, null and void and of no effect. 24. I shall hear the parties on the issue of costs. Dated this 1 st day of June 2010 CAROL GOBIN JUDGE Page 12 of 12