The Court of Appeal recently delivered an important and interesting judgment in Francis and Hinds v The State. The appeal was heard exceptionally by a five-person panel comprising Chief Justice Ivor Archie and appellate judges Peter Jamadar, Nolan Bereaux, Paula Mae Weekes and Alice Yorke-Soo Hon.
The matter concerned an appeal against the mandatory minimum sentence prescribed by Section 5(5) of the Dangerous Drugs Act (DDA) of 2000 and the constitutionality of that section conjointly with Section 61. Section 61 of the DDA disapplied the section of the Interpretation Act, which gives the judiciary the ultimate discretion in fixing sentence, notwithstanding the specific provisions of any legislation.
The discretion is important, in that it provides the convicted person with constitutionally protected due process all the way through to the sentencing phase of his trial. There are two lengthy opinions. The majority judgment is written by Bereaux JA, with the agreement of Weekes and Yorke-Soo Hon JJA. The second opinion by Archie CJ and Jamadar JA does not dissent from the conclusions and the order of the majority judgment but rather takes issue with the tests employed to determine whether Section 5(5) of the DDA is inconsistent with Sections 4 and 5 of the Constitution and whether the inconsistency so found was reasonably justifiable in accordance with Section 13(1) of the Constitution.
In the particular case considered, the differences between the majority and the “dissenting” judges did not affect the outcome. Section 5(5), taken together with Section 61 of the DDA, was found to be inconsistent and not reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual. Section 61 was struck down, thus allowing the court to set appropriate sentences for Francis and Hinds. So one might be led to think the differences between the majority and the “dissenters” were purely academic. They are not.
The essence of the disagreement between the judges is that Bereaux JA and the majority follow the thinking of the Privy Council in Suratt and take the view that the rights outlined in Section 4 of the Constitution are not absolute, that “not every limitation on a fundamental right will amount to an infringement for the purposes of Section 13(1) of the Constitution” and, consequently, not every restriction of a fundamental right will require a parliamentary majority. Suratt was concerned the setting up of the tribunal under the Equal Opportunities Act, which was passed by a simple majority, and the act was held to be unconstitutional at first instance and then by a unanimous Court of Appeal. Baroness Hale, giving the majority judgment of the Privy Council, overturned our Court of Appeal. However, the outstanding jurist, Tom Bingham, dissented from that Privy Council ruling.
Jamadar JA and Archie CJ, in their lengthy 93-page opinion, disagree strongly with the Privy Council’s ruling in Suratt, describing it as per incuriam, and disagree with its approval and use by the majority in Francis and Hinds. Considering in great detail the history of the development of the Constitution of Trinidad and Tobago and the seminal decisions of Lord Diplock in Hinds v R and of Justice Telford Georges in Thornhill, they argue that other than in an emergency, the fundamental rights expressed in Section 4 are not to be infringed by new law unless the Parliament has passed the infringing law with the requisite special majority and, if it is challenged, the courts find the infringement is reasonably justifiable in a democratic society. They object to the use of Baroness Hale’s proportionality test because it can lead to Parliament in-
fringing fundamental rights without the requisite special majority. Suratt would be an instance of how such a perverse outcome could happen.
The reasoning in the majority opinion on the inconsistency of Section 5(5) of the DDA with Section 4 of the Constitution is impeccable. However, at the second stage, they did conclude the impugned conjoint sections were not reasonably justifiable, but not by using the proportionality test. They claim to follow the approach of Lord Templeman in Morgan, which seems to involve essentially assessing our legislation against comparable legislation of other countries which also have respect for democracy. And while our legislation may have its own “local flavour” and our cultural “peculiarities” need to be considered, “the assessment must be made against norms and accepted standards of civilised nations which subscribe to democratic principles, democratic systems of governance and the rule of law”. It is moot whether the majority is entirely convincing with this approach.
While Bereaux JA and the majority, in considering whether an infringement is reasonably justified, are prepared to be “deferential to the views of the elected representatives in Parliament”, Jamadar JA and Archie CJ are deeply concerned with “whether the power of Parliament and the executive will be enlarged at the expense of the protection of the fundamental rights and freedoms, or whether the protection of [these] rights will be preserved and the power of Parliament and the executive limited”. Given the recent successive amendments to the Bail Act, limiting judicial discretion in the granting of bail, the attempt to include the judiciary within the Integrity in Public Life Act and the breaching of the principle of the separation of powers in the Central Bank Amendment Act, the concerns of Jamadar JA and Archie CJ have validity. However, the majority in Francis and Hinds were themselves clear in respect of the Dangerous Drugs Act, Parliament had over-reached.
The difference of perspective within our Court of Appeal on the validity of the Suratt decision and the proportionality test it advocates needs to be resolved. It would be pointless to take this matter back to the very Privy Council that made the dubious ruling in Suratt. It is clearly a case for the Caribbean Court of Justice (CCJ), our regional appellate court, which understands our constitutional history, our society and what the framers of our Constitution wanted to implement. It is a great pity that we in Trinidad and Tobago are unable to access the appellate jurisdiction of our own regional court on a matter of fundamental constitutional importance.
• Dr Terrence Farrell is a former deputy Central Bank governor and former chief executive of One Caribbean Media Ltd, parent company of the Trinidad Express Newspapers.