Caribono Newsletter - Vol. 3, No. 1 (August 2019) by Hugh Wooding Law School Human Rights Law Clinic

Volume 3 No 1, August 2019

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< IN THIS ISSUE >

Editors’ note . . .

Editors’ Note . . . 1 What’s Happening . . . 2 Ramkissoon, “Constitutional Developments across the Region” . . . 6

Articles Ali et al, “Protecting Refugees within Trinidad and Tobago’s Legal Framework”. . . 14

This newsletter includes many of the usual elements— short articles, briefs of recent cases and general updates. This overdue newsletter also gives you an update on the 2018 Port of Spain Caribono meeting and an April 2019 smaller strategic planning meeting held in Port of Spain.

Thomas, “LGBT Rights in the Commonwealth Caribbean: A 21st Century Emancipation” . . . 18

Recent Cases • New Decision involving Caribono Members as Counsel . . . 22 • Mandatory Aspect of the Death Penalty contrary to Fundamental Rights in Barbados Constitution and not Immunised from Judicial Review by Savings Law Clause . . . 23

One new feature is a summary of constitutional developments across the Caribbean Community (CARICOM) region, prepared by Chelvi Ramkissoon, a graduate of the Faculty of Law, The UWI St. Augustine and a current student at Hugh Wooding Law School (HWLS). This update covers not only the independent states in the Anglophone Caribbean, but the CARICOM states of Haiti and Suriname.

• Constitutional Amendment limiting number of Presidential Terms did not Alter by Implication Articles 1 and 9 of the Guyana Constitution . . . 24 • Lawyers’ Association permitted to Investigate Allegations against Chief Justice to determine the course it wishes to take in respect of the Allegations . . . 25 • Executive has a Duty to Obey the Law entitling Commonwealth Citizens in Barbados to Vote . . . 27

The articles in this newsletter address current issues and developments related to refugees in Trinidad and Tobago and LGBT persons in the Caribbean. Both articles have alsol been prepared by graduates of the Faculty of Law, The UWI St. Augustine who are current students at HWLS.

• Delineating the Test for a Trial within a Reasonable Time under Jamaica Constitution . . . 28 • The Head of State adds another Layer of Protection from Political Interference for a Senior Public Officer in Grenada . . . 29 • CCJ Upholds the Prosecution’s Right to Appeal as Compatible with the Guyana Constitution . . . 30 • Mandatory Minimum Life Sentence in Belize Unconstitutional . . . 31

Students in the Human Rights Law Clinic at HWLS also contributed to the preparation of case briefs for this newsletter. They are Arvin Arjoonsingh, Stephanie Sankar, Anella Singh, Matthew Yearwood, Ansar

• Criminalisation of Same-sex Consensual Activities between Adults in Private Unconstitutional in Trinidad and Tobago . . . 33 • Prohibition of Same-sex Marriage contravenes Rights to Freedom of Conscience and Protection against Discrimination on the basis of ‘Creed’ in Bermuda . . . 34 • ‘Supervised visit’ with Attorney-at-law in violation of Right to be Afforded Reasonable Facilities for Private Communications with Attorney . . . 35

Editors’ note (cont’d)

What’s

Happening Jason Nathu, Co-Tutor Nisha Mathura-Allahar, students in the HWLS Clinic, the makers of the film ‘Judgment Day’, which chronicles the Jones v AG case, which was screened by the clinic, and Rishi Dass, one of the attorneys representing the claimant.

Strategic Planning Meeting on the Caribono Network

Mohammed, Rachel Weekes, Casiana Sankar, Sara Martinez, Brian Blackman, Ashelle Edwards, Asante Brathwaite and Adora Howell.

Port of Spain, Thursday April 25, 2019

The Human Rights Law Clinic is a specialised clinical programme offered to final year students at the Hugh Wooding Law School, which provides training to participants on public education and advocacy on human rights issues and to work for social justice. Caribono member and Tutor at the Hugh Wooding Law School, Jason Nathu, is a Co-Tutor for the Human Rights Clinic.

On April 25, 2019, U-RAP hosted a small strategic planning meeting on the Caribono Network at the Hyatt Regency Hotel in Port of Spain, that included some of the newest members of the Network. Caribono members in attendance included Amaya Athill, Rashad Brathwaite, Shenae Cunningham, Keoma Griffith, Kashka Hemans, Knijah Knowles, Tenesha Myrie and Nastassia Robinson.

ARIF BULKAN AND TRACY ROBINSON

Coordinators, Faculty of Law The UWI Rights Advocacy Project (U-RAP)

The small planning meeting followed another planning meeting held by U-RAP on April 24, 2019 to discuss possible new lines of work for U-RAP related to intimate partner killings of women in the Caribbean. As a result, the Caribono planning meeting also included U-RAP members and student fellows and some civil society actors who attended the meeting the previous day.

The small working group on April 25, identified Caribono’s primary goal, as clarified, as realizing systemic change in the Caribbean through securing the protection of human rights, with a focus on populations in situations of vulnerability.

The main objectives of the meeting were to assess the functioning of the network over the last two years, streamline the operations of Caribono and create mechanisms that result in a more active and engaged Caribono Network in the pursuit of the objectives of the network. 2

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U-RAP member Westmin James and Caribono member Rashad Brathwaite making a presentation

The small working group on April 25 identified Caribono’s primary goal, as clarified, as realizing systemic change in the Caribbean through securing the protection of human rights, with a focus on populations in situations of vulnerability. Caribono’s primary activities are focused on the provision of legal services, the undertaking of public and legal education, strategic advocacy, and policy and legal reform.

Caribono member Knijah Knowles

clinic moved onto a broader organizational planning discussion on how Caribono could systematically, and with impact, respond to gender-based violence and the other focus areas of the network.

Utilizing the Caribono Clinic-model, which was a highlight of the August 2018 Caribono meeting, the planning meeting transitioned to, Caribono Clinic on State Inaction to Gender-Based Violence: A Case from the Coalition Against Domestic Violence. This provided the opportunity for a client impacted by gender based

Some highlights of the strategic planning and proposed modalities include: •

• • •

the holding of virtual legal clinics every two months to strengthen the capacity of legal professionals to undertake services for the benefit of vulnerable groups, and to address the direct needs of a particular client; the use of Slack as the nucleus of communication for Caribono (sign up, if you haven’t yet!); the hosting of national Caribono events to encourage more significant group interaction; and pursuing strategic funding opportunities to enhance the sustainability of the network.

Participants agreed that the meeting achieved its broad objectives, and a more focused plan of action now exists to guide the network

Shanae Cunningham presents on her working group’s contribution to the Strategic Plan as members of the network look on.

violence to movingly share her experience and for participants to engage in a collaborative session to assess this case, and strategic next steps. This individual 3

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Inclusion (CAISO) and U-RAP titled, ‘Living Good: A Conversation About The Right To Dignified Lives and Just Communities’. The forum discussed the right to dignified lives as the heart of respect for and protection of human rights and just communities, from different perspectives. The panel and public discussion linked the foundational concept of human dignity and the right to life to suggest that we all have rights to dignified lives that include the ability to pursue our life plan, and to have access to the minimum conditions to have a decent life. With standing-room only, the event was engaging, thought-provoking and the launch of a meaningful discourse on the transformative role the concept of dignity can play in our understandings of law and the good life. caribbono Dignified Lives Public Forum, Chauguanas, Trinidad and Tobago

Caribono Network Meeting

Participants agreed that the meeting achieved its broad objectives, and a more focused plan of action now exists to guide the network. Sub-groups and subgroup leaders for the next year identified are: Communications: Amaya Athill and Shani Bennett; Clinics: Rashad Brathwaite, Gabrielle Elliott-Williams and Kashka Hemans; Fundraising: U-RAP Team; and Community Lawyering: Tenesha Myrie and Jewel Amoah.

Port of Spain, August 16 & 17, 2018 On August 16 and 17, 2018, U-RAP hosted a very successful second regional meeting on pro-bono lawyering and social justice at the Hyatt Regency in Port of Spain. The first meeting was held on Dec 1 & 2, 2016 in Trinidad at the Hilton Hotel. This meeting saw the participation of approximately 43 participants comprising attorneys-at-law and civil society actors from Antigua & Barbuda, The Bahamas, Barbados, Belize, Dominica, Guyana, Jamaica, Puerto Rico, Suriname, Trinidad & Tobago and the United Kingdom. There were 8 sessions over the 2-day meeting, one of which included a keynote delivered by the Chair of the Judicial Education Institute of Trinidad & Tobago, The Hon. Mr Justice Peter Jamadar JA.

Caribono members attending the strategic planning meeting also attended a public discussion on Wednesday, April 24, 2019, hosted by Trinidad and Tobago Equal Opportunities Commission, UNAIDS, NGC Bocas Lit Fest, Coalition Advocating for Sexual Orientation

Dignified Lives Public Forum, Chauguanas, Trinidad and Tobago: Amaya Athill (Caribono), Knijah Knowles (Caribono), Ramona Biholar (U-RAP), Gillian Mason (Woman Inc), Gabrielle Elliott Williams (The UWI Mona)

The members of the Caribono group are primarily regional lawyers who have made a commitment to provide pro bono legal services to groups and persons who face discrimination and who are underserved in their access to legal services. The group agreed that new members should be invited by an existing member to join and that the group’s newsletters in the future should be public documents. 4

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In forefront (L-R): Leslie Mendez, Belize; Craig Jacas, Antigua & Barbuda In background (L-R): Gaetano Best, Suriname; Jacqueline Sealy-Burke, Grenada and Philip Dayle, Jamaica and the UK

The theme of the Second Caribono Meeting was ‘Lawyering for Social Justice and Change in the Caribbean’. The presenters at the Meeting included all members of the U-RAP Team, except Bulkan who was still then on leave. The participants unanimously agreed that the main objectives of the Meeting were met over the two days.

4. Lawyers Contributing to Changing Law and Culture: The Problem of Gender Based Violence 5. Social Justice Lawyering in Difficult Cases 6. Caribono Clinic: Lawyers Serving Rights-Based Civil Society Organisations and Actors 7. Difference and Diversity: Researching, Understanding and Serving, Lessons from U-RAP. caribbono

The main objectives of the Meeting were to strengthen the skills and awareness relevant to social justice lawyering in the Caribbean; strengthen relationships and networks within the Caribono community to facilitate mentoring and ongoing collaborations across the Caribbean, including Suriname; and to refine and develop the purpose of Caribono, its lines of work, its leadership and future.

UPCOMING Events & Conferences •

Caribbean Child Research Conference 2019: ‘The CRC @ 30: What Does It Mean for Caribbean Children?’: November 14–15, 2019 in Barbados. This conference will be hosted by the Sir Arthur Lewis Institute of Social and Economics Studies in partnership with The United Nations Children’s Fund (UNICEF, Eastern Caribbean) under the broad theme ‘Promoting Child Rights through Research’.

•

OECS 16th Regional Law Conference: As the World Turns and The Pendulum Swings, So Should the Law? September 13–15, 2019; St. James Club and Villas, Antigua.

•

Caribbean Studies Association Conference 2020, ‘Identity Politics, Industry, Ecology and the Intelligent Economy in Caribbean Societies’ June 1–5, 2020, Pegasus Hotel, Georgetown, Guyana.

The 2-day agenda included the following sessions: 1. Introductions and Expectations 2. Improving Trust and Fairness in the Administration of Justice a. Keynote Address, ‘The Beauty of Fairness: Improving Confidence in Court Systems and Compliance with Court Orders’ – The Hon. Mr Justice Peter Jamadar, Court of Appeal, Chair, Judicial Education Institute of Trinidad and Tobago b. Towards de-Biased Lawyering and Judging 3. How Justice Works: Rites of Domination, A Role Play? 5

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Constitutional Developments across the Region CHELVI RAMKISSOON

The UWI (St. Augustine) ’18, HWLS (2018– )

to ensure that all registered voters in Barbuda could be transported to Antigua to vote and that no one was disenfranchised. Leader of the Barbuda People’s Movement, Trevor Walker, sought an injunction from the High Court to restrain the ABEC from doing so. He alleged that the election of the representative from the constituency of Barbuda should take place in Barbuda and that he was denied his constitutional right to vote in Barbuda where he resides. On March 15, 2018, the High Court denied him such an injunction, stating that his application was premature.1

Antigua & Barbuda rejects CCJ as final appellate court in referendum On November 6, 2018, the referendum which sought to replace the Judicial Committee of the Privy Council with the Caribbean Court of Justice as Antigua and Barbuda’s final appellate court, failed to achieve the requisite majority. Although admitting that reaching the 67% threshold was ‘an extremely daunting task’, Prime Minister Gaston Browne was left dejected after the result was announced. He stated that his biggest disappointment was ‘the impact of this failure on future constitutional reform.’ Nevertheless, the Cabinet agreed to move forward with constitutional reform by appointing a Constitutional Reform Committee whose mandate would be limited to those items which do not require a referendum. These items include permitting persons of the cloth, and citizens of Antigua and Barbuda born in other countries, to participate in electoral politics.2

Antigua and Barbuda Barbudans voting in mainland Antigua for general elections The havoc of Hurricane Irma in September 2017 forced some 1,600 residents of Barbuda to evacuate to mainland Antigua, though some have since returned to Barbuda. In light of these circumstances, the Antigua and Barbuda Electoral Commission (ABEC) decided to conduct polling for the constituency of Barbuda in mainland Antigua. The National Office of Disaster Services, together with the ABEC, put plans in place

See https://antiguaobserver.com/barbudans-will-be-brought-to-themainland-to-vote/; https://antiguaobserver.com/walker-moves-toblock-barbudans-voting-in-antigua/; https://antiguaobserver.com/court-decision-paves-way-for-barbudans-to-vote-in-antigua/.

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repeating itself, with criticisms being generated over the delay in the appointment. Progressive Liberal Party chairman, Fred Mitchell, called for the appointment to be made forthwith, stating that it was as an insult to the judiciary for such appointment to be made ‘on the personal whims and fancies of the Prime Minister’. Acting Chief Justice, Vera Watkins, said that this ‘tenuous position’ presents a tremendous challenge for the judiciary.4 Brian Moree, QC, assumed the post of Chief Justice in June 2019, over nine months after the passing of Stephen Isaacs. This was the longest delay in filling the position of Chief Justice in the last 60 years.5

The Bahamas Concerns raised over acting appointment of Chief Justice The post of Chief Justice was left vacant following Sir Hartman Longley’s retirement. In December 2017, Prime Minister Dr. Hubert Minnis appointed Justice Stephen Isaacs as acting Chief Justice. This raised concerns among lawyers that Prime Minister Minnis undermined judicial independence and the constitutional guarantee of security of tenure. It was seen to be a ‘blatant attack on the judiciary’ for someone to be appointed as acting Chief Justice while the substantive post of Chief Justice was vacant. Anthony Newbold, the Prime Minister’s secretary, stated that the appointment of the acting Chief Justice was recognized by the Constitution. However, Kahlil Parker, President of the Bahamas Bar Association, opined that Prime Minister Minnis had a ‘tremendous misapprehension’ of the constitutional provisions relating to appointment of the Chief Justice. On July 10, 2018, after months of speculation and criticism, Justice Stephen Isaacs was officially sworn in as Chief Justice, and Supreme Court judge, Vera Watkins, was sworn in as acting Chief Justice.3

Barbados BLP wins landslide victory; Bishop Joseph Atherley crosses the floor to become Leader of the Opposition In a landslide victory, the Barbados Labour Party (BLP), led by Mia Mottley, won all 30 seats in the 2018 general election, creating an unprecedented Opposition void. Prime Minister Mottley was considering a constitutional amendment to allow the opposition party with the most votes to nominate two Senators. In an unexpected move, Bishop Joseph Atherley, winner of the seat for St. Michael West, opted to cross over to become the Leader of the Opposition, pointing out that constitutionally, political parties are not recognized within Parliament’s halls. He reasoned that his actions were to expand the platform of democracy. Atherley’s move means that he now held the power to name the two Senators, negating the necessity for the constitutional amendment.6

Further delays in appointing Chief Justice On August 24, 2018, only a few weeks after being sworn in as Chief Justice, Justice Stephen Isaacs passed away, leaving the substantive post of Chief Justice vacant yet again. In January 2019, Prime Minister Minnis said that the country would soon know who would fill the substantive post, but that he was not committing to a timeline. It seems that history is

4. 2.

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See https://antiguaobserver.com/defeat-for-ccj-what-is-next/; https://antiguaobserver.com/govt-to-proceed-with-constitutionalreform/; https://www.stabroeknews.com/2018/features/in-the-diaspora/11/13/another-perspective-on-the-failed-referenda-2/. See http://www.tribune242.com/news/2018/feb/13/concerns-raisedo v e r - a c t i n g - c h i e f - j u s t i c e - r o l e / ; https://thenassauguardian.com/2018/04/24/pms-cj-remarks-werenonsense/; http://www.tribune242.com/news/2018/jul/12/actingchief-justice-given-full-role-last/.

5. 6.

See http://www.tribune242.com/news/2018/aug/24/chief-justices t e p h e n - i s a a c s - d i e s - a g e - 6 3 / ; http://www.tribune242.com/news/2019/jan/08/no-timeline-overn e w - c h i e f - j u s t i c e - b a h a m a s / ; http://www.tribune242.com/news/2019/jan/11/newbold-pm-willreveal-chief-justice-choice-due-co/; http://jonesbahamas.com/acting-chief-justice-laments-tenuous-position/. www.tribune242.com/news/2019/mar/12/moree-take-over-chiefjustice-june-1/. See https://barbadostoday.bb/2018/05/25/blp-takes-landslide-election-victory/; https://www.barbadosadvocate.com/news/bishopatherley-now-leader-opposition; http://www.nationnews.com/nation-

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Franklyn, also criticized the amendment on the basis that it transformed the Caribbean Court of Justice (CCJ) into a ‘legislating court’. In June 2018, the CCJ ruled that the mandatory death penalty in Barbados is unconstitutional.8

Constitutional amendment to change eligibility rules for Senators The newly-elected Mia Mottley Government got the ball rolling with a constitutional amendment. The Constitution of Barbados had precluded three senators-designate from serving in the Senate because they did not reside in Barbados for twelve consecutive months. The amendment aimed to allow any Barbadian, of 21 years or more, to qualify to be appointed to the Senate. Describing the Barbadian Diaspora as an ‘untapped and underused asset’, Senator Dr. Jerome Walcott described the amendment as a move to bring the Constitution into the modern era. On the reverse side of the coin, Opposition Senator Caswell Franklyn said that the rush to amend the Constitution, without discussing the change nationally first, was an ‘elite’ move amounting to ‘constitutional abuse’. The Constitutional Amendment Act 2018 was passed in June 2018.7

Grounds for removal of judges expanded On 4 April 2019, the Constitutional (Amendment) (No.2) Act, 2019 was assented to by the GovernorGeneral of Barbados. The amendment expands the grounds of removal for a judge and now include ‘delay of more than six months in delivering judgements.’ It further permits the Prime Minister to initiate the process of referral for a disciplinary investigation of any judge on any of the listed grounds after consultation with the Chief Justice. Historically, the Prime Minister only exercised this power with reference to the Chief Justice.9

Belize

CCJ rules that the mandatory death penalty is unconstitutional in Barbados

Belize votes in favour of ICJ referendum to resolve Belize-Guatemala territorial dispute

On November 7, 2018, the Constitutional (Amendment) (No. 2) Bill, 2018 which purported to remove the mandatory death penalty for murder and to alter the Governor General’s exercise of the prerogative of mercy, was defeated in the Senate. Notwithstanding the government’s majority in the lower house, the amendment bill failed to acquire the requisite twothirds majority in the Senate. Independent Senator, Kevin Boyce, strongly opposed the amendment, asserting that it erodes the protection of life by making the condemned man make the submission for the exercise of the prerogative of mercy. Boyce stated that the Constitution should instead retain the provision which automatically triggers review of the death sentence by the Governor General. Opposition Senator, Caswell

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In a dispute that has lingered for centuries, Guatemala claims to be the rightful owner of 11,000 square kilometres of Belize’s territory. In a referendum held in May 2019, Belizeans voted in support of sending the dispute to the International Court of Justice (ICJ) to finally put an end to the territorial dispute. Members of the opposition filed an application for an injunction restraining the holding of the referendum which was granted on the basis that there was a serious issue to be tried regarding the validity of the Writ of Referendum. 8.

news/news/163196/atherley-opposition-senators; https://barbadostoday.bb/2018/12/26/year-in-review-politics/. See https://www.barbadosadvocate.com/news/necessary-amendment; https://barbadostoday.bb/2018/06/08/opposition-senator-knocksamendment-as-elite-move/; https://www.barbadosadvocate.com/columns/editorial-constitutional-amendment.

See https://www.pressreader.com/barbados/daily-nationbarbados/20181109/281492162335948;https://www.barbadosadvoc ate. c om / c olu m ns / e d itor i a l - f ai l e d - l e g i s l at ive - atte mpt; https://barbadostoday.bb/2018/11/07/senator-launches-attack-onjudiciary/. https://www.barbadosparliament.com/uploads/document/76007f7 b0e10313a10cf1548fb602b22.pdf; https://barbadostoday.bb/2019/04/04/pm-constitutional-amendments-important-to-barbados-progress/.

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The Court rejected the argument that the 2008 Special Agreement was illegally and unconstitutionally approved. The Court of Appeal, in a majority decision, upheld the injunction granted to the applicants on April 3rd to halt the referendum. On April 15th, the Belize Territorial Dispute Referendum Bill, 2019 was passed which addressed any technical deficiencies of the Writ of Referendum prior to the May 2019 referendum.

Savarin. Since Linton did not respond within this promised timeframe, the government proceeded to Parliament to elect Savarin as President.11

On June 12, 2019, the ICJ stated that it had been ‘seised of a dispute between Guatemala and Belize by way of special agreement’. Belize’s official submission of documents on June 7, 2019 marked one step forward in the process. Guatemala has until June 7, 2020 to submit its first set of documents.10

November 6, 2018 marked another sad day in Grenada’s history as Grenadians voted ‘no’ to the referendum seeking to replace the Privy Council with the Caribbean Court of Justice (CCJ) as Grenada’s final appellate court. The referendum was held on the same date as the one in Antigua and Barbuda, and marks the second time in two years that Grenadians voted to retain the Privy Council as their final appellate court.12

Grenada Another failed CCJ referendum

Dominica President elected despite opposition objections

Guyana

On October 1, 2018, Charles Angelo Savarin was elected as the President of Dominica once again. However, the Opposition, the United Workers Party (UWP), strongly objected to the constitutionality of the Parliamentary meeting convened to elect Savarin, citing the constitutional requirement for such meeting to be held only after expiration of the 14-day period allowed for nomination of candidates. The UWP alleged that the 14-day nomination period began on September 21, 2018 and would have ended on October 4, 2018, rendering the meeting of October 1, 2018 premature and thus unconstitutional. Prime Minister Roosevelt Skerrit stated that on August 3, 2018, the Opposition Leader, Lennox Linton, had promised that he needed 15 days to determine whether he concurred with the government’s choice to nominate

On June 26, 2018, the Caribbean Court of Justice (CCJ) upheld the validity of constitutional amendments barring a President from serving more than two terms. This ruling overturned decisions from the High Court and the Court of Appeal in favour of a private citizen, Cedric Richardson, who alleged that the amendment ‘unconstitutionally curtails and restricts’ his rights as an elector to elect the former President and current Opposition Leader, Bharrat Jadgeo, as President. The CCJ’s decision eliminates any possibility of Jagdeo running for a third term as President.13

Presidency limited to two terms

11. See http://dominicanewsonline.com/news/homepage/news/general/ charles-savarin-elected-president-of-dominica-despite-oppositionobjections. 12. See https://www.nowgrenada.com/2018/11/pm-mitchell-said-he-isdisappointed-with-the-outcome-of-the-referendum-poll/; https://www.nowgrenada.com/2018/11/video-tuesdays-failed-referendum-another-sad-day-in-grenadas-history/. 13. See https://www.stabroeknews.com/2018/news/guyana/06/27/ccjupholds-presidential-term-limit/ http://guyanachronicle.com/2018/06/26/ccj-upholds-presidentiallimit.

10. See https://www.reuters.com/article/us-belize-referendum-guatemala-border/belizeans-vote-to-ask-u-n-court-to-settle-guatemalaborder-dispute-idUSKCN1SF1QT; https://www.breakingbelizenews.com/2019/06/13/icj-acknowledgespending-belize-guatemala-case/; https://www.sanpedrosun.com/government/2019/01/24/cabinet-unanimously-supports-a-yes-vote-inicj-referendum/; https://www.sanpedrosun.com/government/2018/04/16/guatemalavotes-yes-take-territorial-dispute-belize-icj/.

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up to 51%. On July 14, 2018, Prime Minister Lafontant informed President Jovenel Moïse of his resignation which Moïse then accepted. Lafontant’s resignation preceded a vote of no confidence in him which was expected to be called in Parliament. On September 16, 2018, Jean Henry Céant was ratified as Haiti’s new Prime Minister. However, after holding office for only six months, Haiti’s Lower Chamber of Deputies voted in favour of ousting Céant and his government from office. Neither Céant nor any of his Cabinet Ministers were present for the vote, and Céant described the decision as illegal and unconstitutional. On April 9, 2019, Jean-Michel Lapin became the new Prime Minister, having served as acting Prime Minister since Céant’s removal from office in March 2019. Prime Minister Lapin stated that he does not intend to resign.15

Coalition government in Guyana fails to win confidence vote in Parliament On December 21, 2018, in a surprise move, government backbencher Charrandass Persaud voted against the government in a vote of no confidence brought by the Opposition People’s Progressive Party. This gave an extra vote to the Opposition, which controls 32 seats in the National Assembly, ensuring that the vote of no confidence passed with 33 votes in favour and 32 against. Initially accepting the results of the vote, which the Speaker had declared was enough to carry the motion, the coalition government subsequently reversed itself and challenged the outcome on multiple grounds – including that a majority of 65 members is 34 and not 33. On January 31, 2019, acting Chief Justice Roxane George-Wiltshire upheld the validity of the no confidence vote. This is notwithstanding her finding that Charrandas Persaud occupied his seat in violation of the Constitution on the ground that he was a dual citizen and thus constitutionally barred from being elected as a Member of the House. The effect of a no confidence vote means that elections must be held within three months from the passage of the no confidence motion, and that the President and ministers cannot remain in government beyond such time. On July 18, 2019 the CCJ upheld the decision of the CJ, ruling that the no confidence vote obtained a majority in the Assembly (33 out of 65 votes) and was thus validly passed.14

Plans to amend the Constitution In August 2018, after a year of work and consultations, the special committee of the Chamber of Deputies proposed to amend 30 sections of Haiti’s Constitution. These proposals included changing the parliamentary system to a Presidential system where there is no Prime Minister, but instead a Vice President who is elected along with a President by universal suffrage. Another amendment seeks to subject the President to ordinary courts to answer any allegations of corruption, financial or administrative mismanagement during office.16

Violent protests to force President’s resignation

Haiti Three Prime Ministers since 2017

In 2018, the Democratic and Popular Movement, comprising 20 oppositional political parties, called

Violent protests erupted over the then Prime Minister Jack Guy Lafontant’s decision to raise fuel prices by

15. See https://edition.cnn.com/2018/07/14/americas/haiti-prime-minister-resigns/index.html; https://www.bbc.com/news/world-latinamerica-44836472; https://haitiantimes.com/2018/09/17/haiti-finallyhas-a-new-government-after-riots-over-fuel-prices/; h t t p s : / / w w w. m i a m i h e r a l d . c o m / n e w s / n a t i o n world/world/americas/haiti/article218493170.html; https://www.miamiherald.com/news/nation-world/world/ americas/haiti/article228084084.html; https://www.caribbeannewsnow.com/2019/04/12/haitis-president-confirms-lapin-as-new-primeminister/; https://www.haitilibre.com/en/news-27962-haiti-flashprime-minister-does-not-intend-to-resign.html. 16. http://constitutionnet.org/news/parliamentary-committee-proposesamend-haitis-constitution.

14. See https://www.nytimes.com/2018/12/22/world/americas/guyanagovernment-falls.html ; https://newsroom.gy/2019/01/31/breakingchief-justice-rules-no-confidence-vote-valid/; https://www.kaieteurnewsonline.com/2019/02/13/guyana-being-pushed-towards-itsworst-constitutional-crisis-as-president-continues-to-hold-on-topower-ram/; https://www.stabroeknews.com/2019/news/guyana/06/18/motionof-no-confidence-was-properly-passed-ccj/.

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for a two-day strike to demand the resignation of President Jovenel Moïse. Moïse has been accused of failing to investigate allegations of corruption in the previous government over PetroCaribe. In November 2018, thousands took to the streets in a nationwide protest, which has persisted to date. Protestors shouted ‘Where is the PetroCaribe money?’ alleging that the money was used to enrich the minority to the detriment of the poor and hungry majority. The violence, though quelled by police with tear gas, has resulted in fatalities and dozens of injured protestors. President Moise refused to resign from office, stating that ‘no one … whatever the pretext, [can] threaten the interests of the country or put the nation in danger.’17

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judicial independence. On February 11, 2018, Prime Minister Holness succumbed to public pressure, declaring that there was no intention for the executive to supervise or direct the judiciary. Sykes was appointed to the substantive post of Chief Justice on March 1, 2018.18

Montserrat Government backbencher pivotal in defeating no confidence motion On October 29, 2018, a no confidence motion in the government brought by Opposition member, Dr. Ingrid Buffonge, was defeated by a vote of 5: 4, with all five remaining government legislators voting in favour of keeping the four-year-old Donaldson Romeo administration in office. The determining vote was that of government backbencher and former agricultural minister, Claude Hogan, who declined to support a vote of no confidence notwithstanding his absence from prior parliamentary meetings since being fired in 2017.19

Jamaica Prime Minister ignites controversy with remarks about appointment of acting Chief Justice On February 1, 2018, after the retirement of former Chief Justice Zaila McCalla, Justice Bryan Sykes was appointed as acting Chief Justice, leaving the substantive post vacant. During Sykes’ swearing-in ceremony, Prime Minister Andrew Holness remarked, ‘Actions that bring results will determine the assumption of the role of chief justice’, which seemed to imply that Sykes’ permanent appointment as Chief Justice would depend on his performance. This triggered severe criticism, with 97 judges signing a declaration requesting the Prime Minister to ‘retract his statements and to publicly acknowledge that the Chief Justice is not answerable to him’. While not commenting on the constitutionality, legality or validity of the acting appointment, the judges stated that the Prime Minister’s remarks compromised separation of powers and

St. Kitts and Nevis Opposition Leader’s allegiance cast under scrutiny for holding Dominican diplomatic passport The Constitution of St. Kitts and Nevis prohibits Members of Parliament from holding dual citizenship. It was alleged that Opposition Leader, Dr. Denzil 18. See http://jamaica-gleaner.com/article/news/20180212/full-statement-judges-gravely-concerned-about-pms-comment-acting-chiefjustice; http://jamaica-gleaner.com/article/lead-stories/20180214/holness-backs-down-pm-appoint-chief-justice-short-order. http://www.jamaicaobserver.com/latestnews/Justice_Bryan_Sykes_swor n_in_as_chief_justice 19. See https://www.themontserratreporter.com/a-motion-wasting-thep eoples-time-of-confidence-imp or tance-and-business/; http://www.mnialive.com/articles/mni-view-a-review-of-montserrats-recently-concluded-motion-of-no-confidence; https://discovermni.com/2018/10/30/no-confidence-motion-defeated/; https://www.stlucianewsonline.com/montserrat-government-appearssafe-from-motion-of-no-confidence/.

17. https://haitiantimes.com/2018/11/30/opposition-in-haiti-calls-forstrike-to-force-resignation-of-president-moise/; https://haitiantimes.com/2018/11/30/change-in-haiti-governmentl i k e l y - o v e r - o p p o s i t i o n - p r o t e s t s / ; https://www.nytimes.com/aponline/2019/02/07/world/americas/apcb-haiti-protest.html; https://haitiantimes.com/2019/02/08/its-been33-years-since-haiti-welcomed-democracy-how-did-it-mark-theday-protests/; https://www.bbc.com/news/world-latin-america47247999; https://www.bbc.com/news/world-latin-america-47193837.

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Douglas, exhibited adherence, allegiance and obedience to a foreign power by holding and using a diplomatic passport from Dominica. The constitutional motion was initially raised by the Attorney General of St. Kitts and Nevis in February 2018 and the parties appeared for trial before Justice Trevor Ward in the High Court on January 10, 2019. The Attorney General asked the High Court to declare that Dr. Douglas has vacated his seat by holding the Dominican diplomatic passport, and to grant an injunction restraining Dr. Douglas from taking part in proceedings of the National Assembly. Counsel for Dr. Douglas argued that the diplomatic passport was given out of courtesy and professionalism, and that Dr. Douglas never declared citizenship of Dominica. Both parties were confident that they would emerge victorious. On February 20, 2019, Justice Ward ruled in favour of Dr. Douglas.20

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vacant at any time before the next dissolution of Parliament, the House shall, as soon as convenient, elect another member of the House to that office’. Further, Francois is seeking an order mandating the Attorney General to advise the Prime Minister to appoint a Deputy Speaker within three months or such other reasonable time as the court deems fit, failing which all proceedings of the House would be stayed until further order.21

‘Historic’ No Confidence Motion Defeated On November 20, 2018, the Opposition, the St. Lucia Labour Party (SLP), filed a no confidence motion against the Allen Chastanet government, requesting Prime Minister Chastanet’s immediate resignation. Opposition Leader, Philip Pierre, stated that since Chastanet’s appointment and installation as Prime Minister and Minister of Finance, ‘St. Lucia has been governed in a manner which undermined [its] Constitution, its conventions and practices.’ Among other things, Pierre further attributed blame to Chastanet for ‘recklessly and irresponsibly [allowing] the economy to descend into unsustainable deficit’. On January 30, 2019, the no confidence motion was defeated. However, the SLP stated that the motion was ‘truly historic in the annals of politics’ in St. Lucia. It claimed that it successfully highlighted the Prime Minister’s deficiencies and gave St. Lucians the opportunity to witness whether the Prime Minister’s Cabinet members really represented the interests of St Lucians or their own interests.22

St. Lucia No Deputy Speaker of the House of Assembly Following the resignation of Former Deputy Speaker, Sarah Flood-Beaubrun, the position of Deputy Speaker remained vacant since July 25, 2016. Local attorney, Martinus Francois, initiated a constitutional motion against Prime Minister Allen Chastanet over the Prime Minister’s subsequent failure to nominate a person to serve as Deputy Speaker of the House of Assembly. During the first hearing in October 2018, the judge ordered a trial in the matter to commence on February 13, 2019.

St. Vincent and the Grenadines Speaker says he erred in allowing amendment to no confidence motion

Francois is asking the High Court for a declaration as to the proper construction of ‘as soon as convenient’ as used in Section 36(1) of the St. Lucia Constitution which states that ‘if the office of Deputy Speaker falls

In January 2018, the Opposition tabled a no confidence motion against the Ralph Gonsalves government.

20. See https://www.thestkittsnevisobserver.com/featured/dr-douglastrial-questions-where-his-allegiance-lies/. https://www.thedailyherald.sx/regional/84495-both-sides-confidentof-win-in-dominica-diplomatic-passport-case-involving-st-kittsnevis-opposition-leader. http://dominicanewsonline.com/news/homepage/news/denzil-douglas-wins-passport-case-in-st-kitts/.

21. See https://www.caribbeannewsnow.com/2018/10/26/st-lucia-attorney-wins-first-round-of-constitutional-challenge/. 22. See https://stluciatimes.com/pierre-issues-statement-on-no-confidence-motion/; https://www.stlucianewsonline.com/slp-describesmotion-of-no-confidence-as-historic-congratulates-oppositionmembers/.

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However, on January 31, 2018, Speaker of the House, Jomo Thomas, did not allow a debate on the no confidence motion, instead allowing the government to amend the motion into a motion of confidence which government lawmakers thereafter debated and passed in the absence of Opposition leaders who stayed away in protest. However, in a Facebook post a few days later, Thomas stated that he ‘erred in entertaining the amendment’ and should have allowed the no confidence motion to go for debate. In February 2019, it was hinted that Opposition lawmakers may bring another no confidence motion in the Ralph Gonsalves government.23

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Trinidad and Tobago Privy Council rules that Law Association can initiate its own inquiry into allegations against the Chief Justice to determine if it wishes to make a complaint to the Prime Minister In 2017, a series of allegations were made against the Chief Justice, Ivor Archie. These allegations included: that he recommended people for the Housing Development Corporation; and that he discussed the judiciary’s security needs with his friend, convicted fraudster, Dillian Johnson. In August 2018, the Privy Council ruled that the Law Association of Trinidad and Tobago (LATT) had the power to initiate its own inquiry into the allegations to guide its membership as to what further steps it could or should make, including that of making a complaint to the Prime Minister. Following this ruling, LATT launched an internal probe into the allegations, sending its report to the Prime Minister, Keith Rowley, in December 2018. Constitutionally, the Prime Minister is the only person who can decide whether to initiate removal proceedings against the Chief Justice. The Prime Minister has since indicated that he will not initiate the impeachment process. The law association has said that it is considering applying for judical review of the Prime Minister’s decision.

Suriname Sentence yet to be passed in President Bouterse’s trial On December 8, 1982, over a dozen revolutionary soldiers in Suriname executed 15 opponents of the then military government. The trial of 14 of the initial 25 suspects is now nearing a close. Among these 14 suspects is current President, Desi Bouterse, who in 1980 staged a coup to remove the elected government. Bouterse denied ordering the killings but accepted ‘political responsibility’ for them because he was Army commander at the time. Although prosecutors recommended that Bouterse be sentenced to 20 years imprisonment, Parliament enacted a controversial amnesty law in 2012 which can preclude Bouterse from serving any prison time for the executions. The legality of the amnesty law is being disputed by judges. In 2016, Bouterse also sought to invoke constitutional provisions to halt his trial in the interest of national security, but the court overruled this attempt to escape imprisonment. The court is expected to set a date for sentencing of the suspects in 2019.24

Judicial and Legal Services Commission improperly constituted In February 2019, the Privy Council ruled that the Judicial and Legal Services Commission (JLSC) was improperly constituted when, in 2017, it selected several judges including former chief magistrate Marcia Ayers-Caesar – because there were two retired judges sitting on the JLSC and the Commission was one member short at the time. Nevertheless, the Privy Council’s ruling does not invalidate past appointments or past decisions of the JLSC.25

23. See https://searchlight.vc/searchlight/front-page/2018/02/06/speakersays-he-erred-in-allowing-amendment-to-no-confidence-motion/; https://www.iwnsvg.com/2019/02/11/leacock-hints-at-another-noconfidence-motion/. 24. See http://amsterdamnews.com/news/2018/nov/08/court-soon-rulemilitary-executions-trial-suriname/; http://amsterdamnews.com/news/2017/jul/06/surinamese-presidentfacing-20-years-mass-murder/; https://caricom.org/cochog/view/car-

icom-leaders-briefed-on-political-situation-in-suriname. 25. See https://newsday.co.tt/2019/02/11/privy-council-jlsc-illegallyconstituted/.

Articles Protecting Refugees within Trinidad and Tobago’s Legal Framework ANISSA ALI, MARISE AYOUNG, SUE RAMDHANIE & SHARAD RAGHUNATH

The UWI (St. Augustine) ’18, HWLS (2018– )

he United Nations Refugee Agency (UNHCR) estimated in 2018 that there were 68.5 million persons forcibly displaced worldwide, amongst them 25.4 million refugees.1 The Caribbean has not escaped unscathed from this problem. Escalating tensions and unrest in Venezuela have led to a rapid increase in Venezuelan asylum seekers and refugees across the region, with Trinidad and Tobago being a prime destination. According to the UNHCR, Trinidad and Tobago is the third largest refugee-receiving country in the Caribbean after Belize and the Dominican Republic.2 But whereas the latter two countries have specific legislation to manage the influx of refugees, 1. 2.

there is nothing comparable in Trinidad and Tobago. In the ensuing void, authorities resort to the Immigration Act (IA), which has proved to be an inadequate stop-gap since that Act does not adequately support Trinidad and Tobago’s international obligations and is compounded by a lack of international monitoring and enforcement.

International Obligations and Domestic Realization Trinidad and Tobago is a signatory to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (‘The Refugee Convention’), but is yet to incorporate its obligations thereunder into domestic legislation. Thus, refugee protection is governed by the IA, which has a distinct nationalist ethos and

UNHCR, ‘Figures at a Glance’ (19 June 2018) < https://www.unhcr.org/ figures-at-a-glance.html > accessed 10 February 2019. Anna-Lisa Paul, ‘T&T third most favoured Caribbean country for refugees’ Trinidad and Tobago Guardian Newspaper, 15 June 2017 <http://www.classifieds.guardian.co.tt/news/2017-06-15/tt-thirdmost-favoured-caribbean-country-refugees> accessed 10 February 2019.

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the length of detention for Venezuelans.8 In its media release the Ministry asserted that the Government respects the right of asylum but also has a right to repatriate any foreign citizen who is found in breach of domestic law.9 However, whether detention was warranted in the first place is questionable, particularly since, as the UNHCR pointed out, 13 of the deportees were registered asylum seekers and a further 19 were in the process of registering with the UNHCR. The UNHCR has since criticized the deportation as a violation of international law, specifically the principles of non-refoulement, non-penalization and confidentiality.10

lacks specific provisions relating to refugees and asylum seekers. The primary mandate to parties to the Refugee Convention is the principle of non-refoulement,3 which protects an asylum seeker from being returned to the very state from which s/he fled in fear of persecution. No reservations to this principle are permitted and the only justifiable exception is in instances where the refugee poses a security threat to the receiving state.4 Moreover, returning a person to a state in which they fear persecution can represent a threat to the right to life. Both the right to life and the principle of nonrefoulement have been crystallized into customary international law and have created a legitimate expectation amongst asylum seekers and refugees.

The Refugee Convention dictates that refugees be free from arbitrary detention and underscores non-penalisation for illegal entry.11 The IA does not live up to this mandate because of its lack of mechanisms to provide easily recognizable and valid identification documents to refugees, the latter also required by article 27 of the Convention. This failure leaves refugee seekers vulnerable to arrest and detention,12 and was a point of complaint by the UNHCR at Trinidad and Tobago’s last UPR hearing.13

Under Section 17(1) of the IA refugees and asylum seekers may be granted an order of supervision which enables any person detained to be released on conditions such as reporting requirements, examinations and inquiries. A supervision order enables freedom of movement, non-penalization for illegal entry and crucially, non-refoulement. However, in Henry Obumneme Ekwedike v. The Chief Immigration Officer,5 the High Court of Trinidad and Tobago qualified the supervision order as being valid only if the person to whom it is granted has been ‘arrested or detained pursuant to section 16’ of the said Act.6 The effect of this ruling means that in absence of prior detention, the supervision order is ultra vires,7 an absurdly restrictive situation since all refugees are not subject to administrative detention. The ruling has thus undermined the ability of the statute to give effect to the protection from refoulement for refugees.

The right to work, to earn a salary and freedom from exploitation14 are all enshrined in the Refugee Convention to facilitate some form of independence for refugees in receiving states. However, the IA does not enable refugees to engage in wage earning employment. As articulated by 2011 UPR Trinidad and Tobago,15 refugees are not ‘entitled to any form of legal status or 8. 9.

Moreover, the government’s actions towards asylum seekers have evinced a blatant disregard of the nonrefoulement mandate. On April 21, 2018 the Ministry of National Security summarily removed 82 Venezuelan nationals from the Immigration Detention Centre and deported them to Venezuela. The Ministry claimed that the ‘repatriation’ was voluntary and authorized by the Venezuelan Ambassador as a method of reducing 3. 4. 5. 6. 7.

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10.

11. 12. 13.

Refugee Convention, Article 33 (1). Refugee Convention, Article 33(2). 11 August 2017, CV2017- 02148 (HC TT). Ibid, [18]. Ibid, [9].

14. 15.

‘Ministry: All protocols observed’ (24 April 2018) Trinidad and Tobago Newsday <http://newsday.co.tt/2018/04/24/ministry-allprotocols-observed/> accessed 10 February 2019. Ministry of National Security, ‘Media Release: Government Clarifies Information on Asylum Seekers’ (23 April 2018) <http://www.nationa l s e c u r i t y. g o v. t t / P o r t a l s / 0 / M e d i a % 2 0 R e l e a s e % 2 0 %20Government%20Clarifies%20Information%20on%20Asylum%20S eekers.pdf > accessed 10 February 2019 Amnesty International, ‘Trinidad and Tobago: Deportation of 82 Venezuelans violates human rights obligations’ (23 April 2018) < https://www.amnesty.org/en/latest/news/2018/04/trinidad-andtobago-deportation-of-82-venezuelans-violates-human-rights-obligations/> accessed 10 February 2019. Refugee Convention, Article 31. Interview with anonymous forced migrant (Preysal, 19 March 2018). UNHCR, ‘Submission by the United Nations High Commissioner for Refugees for the Office of the High Commissioner for Human Rights’ Compilation Report, Universal Periodic Review: Trinidad and Tobago’ (March 2011) <https://www.refworld.org/docid/ 4d886a9f2.html> accessed 10 February 2019. Refugee Convention, Article 17. UNHCR (n13).

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documentation that would entitle them to work legally’ within Trinidad and Tobago. Therefore, whilst the IA allows work permits to be granted by the Minister, such permits are not available to recognized refugees. Consequently, refugees and asylum-seekers are forced to engage in illegal work, resulting in ‘detention, prosecution for illegal work (and) increased vulnerability to labour exploitation’.16

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progressive legislative reform would propel the public discourse in a manner more open and accepting of refugee rights. Ultimately, refugee rights should not be left to languish in the current legal framework. Trinidad and Tobago is currently able to shirk its international obligations due largely to the lack of enforcement of international obligations, which renders refugee protection a voluntary assumption by the state with no consequences for non-compliance.

The Refugee Convention also emphasizes the right to public education17 as a minimum standard requirement. This right ensures that the refugee is at least given the opportunity to attain elementary level education. While the state has succeeded in its obligation under the Convention on the Rights of the Child to provide free elementary education to nationals18 most refugee children cannot enjoy this right due to the stumbling blocks associated with a lack of documentation. Depriving refugees of access to education, especially young girls, can render them vulnerable to child marriages, domestic labour and sexual exploitation.19 This can also further compromise obligations in other treaties, such as the right to free choice of profession and employment for women.20

Enforcement of International Obligations There are two types of supervisory mechanisms put in place to monitor compliance with human rights treaties: treaty-based and non-treaty based mechanisms.23 The inter-state complaint procedure is a treaty-based mechanism which allows states to report matters of another. However, this measure is rarely used, perhaps due to the impracticality of States compromising their inter-state relations to aid foreigners.24 The individual complaint procedure is another treatybased mechanism where individuals can initiate proceedings against a State to protect their rights. The applicable human rights forum for Trinidad and Tobago is the Inter-American Human Rights system. Unfortunately, Trinidad and Tobago withdrew from the American Convention on Human Rights on 26 May 1998. In so doing, it eliminated the ability of the Inter-American court to hear cases from Trinidad and Tobago. Furthermore, although the ICCPR safeguards the right to life,25 non-refoulement26 and the right to liberty and security from arbitrary arrest,27 Trinidad and Tobago denounced the First Optional Protocol, thereby preventing individuals from bringing claims under this covenant.

Thus the state has to date successfully circumvented its international obligations related to non-refoulement, non-penalization, the right to education and the right to work. Legislative amendment is required to adequately address refugee rights domestically, but none of the seven amendments made to the IA since 196921 has purported to strengthen the protection of refugees and asylum seekers. While political opinion and social distrust of migrants potentially obstruct legislative change, these factors should not forestall progressive reform altogether and perpetuate the cycle of public resistance to refugee protection. Sales believes that ‘restrictive policy . . . is not just a response to . . . public hostility, but creates and nourishes this type of sentiment’ (emphasis added).22 Arguably, therefore,

22. Rosemary Sales, Understanding Immigration and Refugee Policy: Contradictions and Continuities (Policy Press, 2007) 215. 23. Icelandic Human Rights Centre, ‘International Supervisory Mechanisms for Human Rights’ <http://www.humanrights.is/en/humanrights-education-project/human-rights-concepts-ideas-and-fora/parti-the-concept-of-human-rights/international-supervisory-mechanisms-for-human-rights> accessed 10 February 2019. 24. Scott Leckie, ‘Inter-State Complaints Procedure in International Human Rights Law: Hopeful prospects or Wishful thinking?’ (1988) 10 Human Rights Quart 249. 25. ICCPR, Article 6. 26. Ibid, Article 7. 27. Ibid, Article 9(1).

16. 17. 18. 19.

Ibid. Refugee Convention, Article 22. Convention on the Rights of the Child, Article 28. UNHCR, ‘Syrian Refugee girl emphasizes importance of education’ (13 October 2016). <https://www.unrefugees.org/news/educatingrefugee-children-provides-hope-opportunity-and-a-future/> accessed 10 February 2019. 20. Convention on the Elimination of all Forms of Discrimination against Women, Article 11. 21. In 1974, 1978, 1980, 1988, 1990, 1995, 2005.

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advises on thematic or country-specific mandates. Rapporteurs or working groups have to raise human rights issues with governments to institute fact-finding missions and publicize their findings.34 If violations are found, then Trinidad and Tobago may become a country of concern. Thus far, no fact-finding missions concerning the refugee crisis have been conducted in Trinidad and Tobago.

Perhaps the most effective mechanism that may be employed to enforce human rights obligations is the cutting of economic ties. However, the effect of these economic withdrawals go beyond the government and inevitably hurts citizens. Non-treaty based supervisory mechanisms by charter bodies often lack binding authority. The UN Human Rights Council introduced the ‘Universal Periodic Review’ (UPR) to overlook the ‘fulfilment of its human rights obligations and commitments’ and provide core reports on each member.28 In the first cycle dated 5 October 2011, the national report of Trinidad and Tobago29 made no mention of any refugee provisions that would be on the country’s agenda. According to the national report by the working group, the only accommodation for refugees mentioned was the establishment of the Immigration Detention Centre in November 2009.30 In the second cycle dated 10 May 2016, the state reaffirmed its commitment to the Refugee Convention by stating that the Draft National Refugee Policy was approved in 2014, which would enable gradual development of refugee protection.31 More than 5 years later, that policy has yet to come to fruition. Such inaction suggests that the state utilizes the UPR as a forum to issue positive statements,32 but which do not reflect sincere efforts to bolster refugee protection. Furthermore, there is often a lack of feasible recommendations, investigation and follow-up by the working group.33 As such, the UPR appears to be merely a formality without practical results. Another enforcement mechanism by a charter body is the use of the Human Rights Committee which reports and

Perhaps the most effective mechanism that may be employed to enforce human rights obligations is the cutting of economic ties. However, the effect of these economic withdrawals go beyond the government and inevitably hurts citizens. Moreover, states will often refuse to cut sources of income since economic self-interest is prioritized over human rights. For example, Venezuela and Trinidad and Tobago have partnered in several financial agreements such as the CARICOM/Venezuela Agreement on Trade and Investment, the Natural Gas Supply Project Agreement and the supply of manufactured goods from Trinidad and Tobago to Venezuela. Thus, there is an unwillingness to provide refugee protection to Venezuelans since it will indirectly affect Trinidad and Tobago’s economic interest and threaten political tension by highlighting the Venezuelan government’s human rights violations. Overall the current legislative framework provides numerous challenges for the protection of refugees domestically. However, such obstacles are not insurmountable and an amendment of the Immigration Act or the introduction of refugee-specific legislation with adherence to Trinidad and Tobago’s commitments under the Refugee Convention is essential, as the country continues to attract refugees. Legislative reform must make provisions for the state’s obligations of non-refoulement, non-penalization, the right to work and the right to education. The weakness of international monitoring necessitates proactive steps by the government to uphold human dignity and deter the marginalization of refugees. caribbono

28. State Library New South Wales, ‘Overview of enforcement mechanisms’ <http://legalanswers.sl.nsw.gov.au/enforcing-international-humanrights/overview-enforcement-mechanisms > accessed 10 February 2019. 29. Government of Trinidad and Tobago, ‘National report submitted in accordance with paragraph 15 (a) of the annex to Human Rights Council resolution 5/1’ (2011). 30. The Working Group, ‘Report of the Working Group on the Universal Periodic Review’ (2011). 31. Government of Trinidad and Tobago, ‘National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21’ (2016). 32. Matthew Davies, ‘Rhetorical Inaction? Compliance and Human

Rights Council of the UN’ (2010) 35 Alternatives 463. 33. Hannah Moscrop, ‘Enforcing International Human Rights Law: Problems and Prospects’ (2014) <http://www.eir.info/2014/04/29/enforcing-international-human-rights-law-problems-and-prospects/> accessed 10 February 2019.

34. Human Rights House Network Program, ‘Efficiency of the Use of International Human Rights Mechanisms in Respect of Belarus’ (2014) <humanrightshouse.org/noop/file.php?id=20842> accessed 10 February 2019.

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LGBT Rights in the Commonwealth Caribbean A 21st Century Emancipation VAUGHN THOMAS

The UWI (St. Augustine) ’18, HWLS (2018- )

‘We both went to school together from small we was always partner breaking biche and pitching marbles in d’yard, m’lord what is this? like meh partner gone mad . . . he’s not a man again I hear he even gone so far to change he name to Norma . . . ah say no this not true, he even wearing makeup too, Norman is that you?’ —The Merchant, ‘Norman, is that you?’ (1978)

clothing ‘for an improper purpose.’ The taunts, heckling and even violence which they were made to endure on account only of their unconventional appearance and mannerisms tell an unfortunate tale. In this vein, after eluding four Guyanese judges, the Caribbean Court of Justice in the case of Quincy McEwan and others v Attorney General of Guyana1 declared that ‘it is for courts to afford the protection of law to those who experience the brunt of such behaviour.’

In a judgment that marked a watershed moment in the struggle for equality, the CCJ in McEwan struck down section 153 (1)(xlvii) of the Summary Jurisdiction (Offences) Act [G], which made it a crime for a man to dress in female attire or vice versa in public for an improper purpose and set aside the convictions of the appellants. In arriving at its decision, the Court acknowledged the hostility and discrimination that members of the LGBT community in the Caribbean face in their daily lives, vis-à-vis the fundamental goal of a constitutional democracy to develop a society in which all citizens are regarded as equal. The law in question disproportionately impacted trans persons, unjustifiably interfered with a person’s right to make decisions about their lives, and stigmatized by criminalization those who did not conform to traditional gendered clothing. The CCJ also criticized the provision as being a convenient tool to justify harassment of the LGBT community. The proclamation that ‘no one should have to live under the constant threat that, at any moment, for an unconventional form of expression that poses no risk to society s/he may suffer such

ome forty years later, Merchant’s lyrics still capture the entrenched misunderstanding, derision and rejection experienced by members of the Lesbian, Gay, Bisexual, and Transgender (LGBT) community in Caribbean society. Often the mere perception that a person does not meet society’s expectations of gender normative behavior provokes disgust, confusion and fear among a significant constituency of the Caribbean public. This response has for centuries been accommodated and often mandated by the law, enduring despite the advent of entrenched human rights of equality and freedom of conscience. However, beholden not to notions of what is popular but armed with a mandate to vindicate the rule of law, the Courts have in recent times dared venture where Parliament feared to trod to extend the protection of the law to persons identifying as LGBT. The depth of anti-LGBT animus was revealed when 7 trans persons were arrested, made to languish for a weekend in a cramped holding cell of a Georgetown police station, and then called upon to answer a colonial vagrancy-type offence of wearing female

[2018] CCJ 30 (AJ).

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treatment’ reverberates through Guyana and across the Caribbean as a reminder that equality not prejudice is the value upon which our post-colonial nations were founded. The judgment underscores that where legislative will may be lacking to extend constitutional protection to minority groups, some Courts are ready and willing to fulfill their role as the guardian of the constitutional promise of the equal and inalienable rights with which all members of the human family are endowed.2

Across the Caribbean not only were outward representations of gender identity criminalized but the invasive reach of State extended to the private sexual decisions made by consenting adults through buggery laws. In Belize and Trinidad and Tobago successful challenges were mounted against statutes which criminalized anal sexual intercourse. In Caleb Orozco v Attorney General of Belize,3 Benjamin CJ held that section 53 of the Belize Criminal Code, which outlawed ‘carnal intercourse against the order of nature’, contravened the fundamental rights of homosexual men insofar as it criminalized consensual sexual relations between two adult men in private. The provision was found to be discriminatory in effect, as citizens have been rendered criminal by virtue of their homosexuality, it violated individuals’ freedom to express his/her sexual preference or orientation and builds security and vulnerability into the daily lives of gay men degrading, devaluing and invading their right to human dignity as human persons.4

from the criminalization of homosexual acts between consenting adults. The court rightly rubbished the submissions of the Attorney General that the laws were not enforced and that they were aimed at preserving the ‘traditional family and values that represent society.’ In dealing with the former Rampersad J likened the position to holding ‘a big stick over a minority to try to enforce a portion of society’s morality over it’ as it made no logical sense to maintain an unenforced law. In relation to the latter, the court observed that single parent families are becoming the norm in Trinidad and Tobago, rendering the traditional template of the nuclear family ‘no longer sufficiently important’ to justify denying the fundamental right of adult homosexuals to make decisions about their sexual conduct in private.

A similar outcome was realized in the case of Jason Jones v Attorney General of Trinidad and Tobago and others.5 Rampersad J declared that sections 13 and 16 of the Sexual Offences Act of Trinidad and Tobago was not reasonably justifiable in a society that has a proper respect for the rights of the freedoms of the individual and thus are unconstitutional, null, void and of no effect insofar as they criminalize any acts constituting consensual sexual conduct between the parties. This position was premised on the trend that democratic societies across the globe are moving away 2. 3. 4. 5.

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These two decisions have gone a long way towards carving out a more inclusive space for all citizens, whether gay or straight, to conduct their personal lives without fear of the might of the State’s criminal law being brought upon them. Meanwhile, in Bermuda the LGBT community has been engaged in a battle not against criminalization of homosexual conduct but one for marriage equality. In Goodwin and DeRoche v The Registrar General of Bermuda,6 the applicants were refused a marriage license on the ground that they were both male. In a

See Universal Declaration of Human Rights, Article 1. (2016) 90 WIR 161 (SC Bze). National Coalition for Gay and Lesbian Equality v Minister of Justice [1999] (1) SA 6, cited in Orozco. 18 April 2018 Claim No. CV 2017-00720 (HC T&T).

[2017] SC Bda 75 Civ BM 2017 SC 75 (Claim No. 259 of 2016) (SC Berm).

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The constitutional order in the Commonwealth Caribbean is constructed not to rubberstamp majoritarian views (whether religious or otherwise) but to ensure that the fundamental rights and freedoms of minority interests are preserved regardless of popular support. custody and access to children.â&#x20AC;&#x2122;7 Similarly, in A and B v Director of Child Services,8 the courts have struck down legislation in Bermuda restricting male samesex couples from adopting a child. Also in Bermuda, immigration legislation treating a non-Bermudan same-sex partner differently from his heterosexual counterparts was struck down.9

complex analysis of the Bermudian legal landscape, the Supreme Court found that both the common law definition of marriage as a voluntary union between one man and one woman and its reflection in the Marriage Act constitute deliberate different treatment on the basis of sexual orientation by excluding samesex couples from the institution of marriage. In impressing its imprimatur of support for same-sex marriage, the Court ruled that the historic and insular perspective as reflected in the common law definition of marriage was out of step with Bermuda in the 21st century. This decision represented a massive legal victory for not only the LGBT community in Bermuda but it may also contribute to achieving marriage equality throughout the Commonwealth Caribbean.

In the Bahamian case of Marr v Collie,10 the Privy Council extended the application of the common intention constructive trust principles to resolve disputes involving the property of cohabiting samesex couples after the breakdown of the relationship. The application of this remedy is complex and uncertain when compared to the ease with which property redistribution is conducted for heterosexual couples under the cohabitational relationship and matrimonial legislation in countries like Trinidad and Tobago. In fact, the Trinidadian courts have bemoaned the lack of statutory protection for same-sex couples with regard to proprietary and inheritance matters.11 While the Courts have gone as far as the common law allows, LGBT couples still remain disadvantaged in the admin-

Often overlooked is the variety of private law cases where, well before the first public law challenges, the courts have sought to extend family and property rights to the LGBT community, without which the decriminalization of their lifestyle would have been a pyrrhic victory. In family law, the notion that heterosexual unions are the most effective means of rearing healthy, happy, and well-adjusted children has been turned on its head. The court in the Bahamas has declared that â&#x20AC;&#x2DC;notwithstanding his sexual orientation a father is entitled to equal treatment in matters relating to

7. 8. 9.

E v A BS 2007 SC 43 (SC Bah). [2015] Bda LR 13. Bermuda Bred Company v Minister of Home Affairs [2005] Bda LR 106. 10. [2017] UKPC 17 (Bah). 11. Anand Matadeen v Raymond Mark TT 2018 HC 251 (Claim No. CV2018-00857).

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istration of their proprietary affairs.

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Critically, the potency of religious opposition to LGBT equality cannot be overlooked. The influence of the religious interests on executive policy and the extent to which they represent the sentiments of wider Bermudian society is concerning. In both Orozco and Jones a number of civil society organizations, particularly various Christian denominations and the Sanatan Dharma Maha Sabha for the Hindus in Trinidad and Tobago, went so far as to obtain intervener status to seek to convince the courts of the ‘dangers’ of equality. These interventions prompted the court in Orozco to note that ‘there can be no doubt [their] views are representative of the majority of the Christian community and perhaps of the population of Belize.’ This reality, perhaps, accounts for the political leaders’ reluctance to expressly embrace LGBT equality rights. However, the court cannot act upon prevailing majority views or what is popularly accepted as moral. As Rampersad J put it ‘this is not a religious debate.’14

While these cases represent bold strides in Commonwealth Caribbean human rights jurisprudence the extent of public support for the new regime remains uncertain. While the Guyanese Prime Minister is reported to have ‘applauded’12 the ruling in McEwan, the extent of Executive push-back to the decisions in some jurisdictions is unfortunate. In Trinidad and Tobago, the Attorney General has vowed to contest the Jones ruling all the way to the Privy Council. In Bermuda, following the legalization of same-sex marriages by the court, Parliament enacted the Domestic Partnership Act (DPA) in 2018 to disapply Godwin and to introduce a comprehensive scheme for samesex relationships short of marriage. This was in fulfilment of an election promise and a response to demands by lobbyist groups such as Preserve Marriage Bermuda and other religious interests. Nonetheless, section 53 of the DPA, which excluded same-sex couples from contracting marriages, was successfully challenged in Ferguson v Attorney General of Bermuda13 on the basis that it was passed for a mainly religious purpose and amounted to a breach of freedom of conscience. Thus, the decision in Goodwin was ultimately restored as the law in Bermuda.

The judicial position is both laudable and arguably correct, since the Constitution created an independent judiciary in an explicitly secular State, completing what has been an evolving separation of Church and State. The constitutional order in the Commonwealth Caribbean is constructed not to rubberstamp majoritarian views (whether religious or otherwise) but to ensure that the fundamental rights and freedoms of minority interests are preserved regardless of popular support. By decriminalizing sodomy and cross-dressing in some countries and permitting same-sex marriage in others, it is hoped that right-thinking citizens generally would, as one Guyanese letter writer put it ‘be proud citizens of a truly dynamically diverse and progressive society.’15

These protections, although not ideal, represent a willingness by the courts to adopt innovative and radical measures to ensure the development of the common law, such that equality before the law prevails for all people. For their pioneering decisions ensuring inclusion and respect for the LGBT community in an often hostile society, Commonwealth Caribbean courts have found their ‘Spartacus moment.’

12. Pan Caribbean Partnership Against HIV/AIDS, ‘Guyana respects CCJ decision on cross-dressing – Prime Minister of Guyana’, Press Release, November 27, 2018. 13. (2018) 93 WIR 226 (CA Berm).

14. n 5. 15. Ferlin Pedro, ‘CCJ cross-dressing ruling should be welcomed by every Guyanese’, Stabroek News, November 16, 2018.

Recent Cases for the DBC for another 16 months. However, while the respondent acknowledged that the Prime Minister was aware of the appellant’s continued employment as general manager after the expiration of her fixed term contract, he apparently did not give any written advice on the issue pursuant to s 6. As such, the respondent argued that the appellant’s continued employment was ultra vires, and both the judge at first instance and the court of appeal agreed.

New decision involving Caribono member as Counsel Mariette Warrington v Dominica Broadcasting Corporation [2018] CCJ 31 (AJ) (Dom)

On further appeal, the CCJ overturned the lower courts, holding that there ‘can be little doubt that the Prime Minister, by approving the continued performance by Ms. Warrington of the duties and functions of General Manager and engaging with the Board on the question as to the duration of her contract, thereby communicated his acceptance that she had been appointed the Corporation’s General Manager, even though the Board had not settled on the period of engagement.’ [21] The effect of this judgment is that an employee will not suffer detrimental effects if a Prime Minister, or any other public official, arbitrarily

Mariette Warrington, the appellant, was employed by the State-owned Dominica Broadcasting Corporation on a fixed term contract, which terminated on December 31, 2008. Section 6 of the Dominica Broadcasting Corporation Act, Chap 45:06, requires that the Board ‘acting on the advice of the Prime Minister’ appoint a manager. Prior to the termination of this contract, the appellant communicated to the respondent’s Board that she would like to continue in her employment as the Corporation’s general manager. The Board unanimously agreed to extend the appellant’s employment contract, and she then continued working 22

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refuses to give advice on whether that employee’s employment should continue or not, while having knowledge of the continued employment.

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found that the mandatory death penalty was a violation of international human rights standards as ratified by Barbados and constituted inhuman and degrading treatment, in violation of section 15 of the Barbados Constitution, it dismissed appeals by both men on the ground that the penalty was saved as an existing law (pursuant to the Barbados Constitution section 26). In so holding the court of appeal applied the decision of the Privy Council in Boyce v R, considering itself bound thereby unless and until the latter was overruled by the CCJ.

A separate concurring judgment was delivered by President of the Court, Justice Adrian Saunders. Taking a practical approach, Saunders P held that ‘law must be premised on principle and must also make sense. Notwithstanding the requirement that the Prime Minister should advise or approve the appointment of the manager, it would be unreal to suppose that, throughout the 15 months after the expiry of the 2004 contract, there was no employment arrangement in existence between Ms. Warrington and the Board.’

Further appeals to the CCJ were allowed on the basis that the mandatory aspect of the death penalty violated a number of rights in the Constitution, including protection of the law (s 11(c)), the rights to life (s 12), to be protected against inhuman and degrading treatment or punishment (15) and to a fair trial (s 18). Byron P gave the majority decision, with whom Saunders, Wit, Hayton, Rajnauth-Lee and Barrow JJCCJ agreed; Anderson JCCJ delivered a separate concurrence on a different basis.

This decision was historic in more than one sense. It was Dominica’s first case before the Caribbean Court of Justice. It was also what many described as a case of David versus Goliath, since the Respondent Corporation was represented by three Senior Counsel at different stages in the case, while at the Court of Appeal and the Caribbean Court of Justice, the appellant was represented by attorney-at-law and Caribono member, Cara Shillingford. Ultimately, this decision could have a beneficial impact on the rights of employees, and it certainly sends a message to politicians about the limits of executive power and the courts’ refusal to tolerate arbitrary decisions or inaction.

The majority first ruled that section 11 of the Constitution, given its location and content, is separately enforceable, thereby rejecting the argument of the Crown that it was a mere preamble. Byron P noted that section 11 is not a preliminary statement before the commencement of the Constitution, but is located in the substantive section. Moreover, the language of the provision is not aspirational, nor is it a preliminary statement of reasons which make the passage of the Constitution, or sections of it, desirable. Instead, it plainly indicates that the rights which are enforceable are those mentioned earlier in the same section 11. This right to protection of the law is the same as due process and is therefore inherent to the Constitution, and it includes the right to a fair trial. The mandatory death penalty deprives a court of the opportunity to exercise its judicial function of tailoring punishment to fit crime. Sentencing is a congruent component of a fair trial, as well as mitigation. The principle of a fair trial must be accorded to the sentencing stage too. Therefore, the mandatory nature of section 2 of the OAPA violates the protection of law, as guaranteed in section 11(c) of the Barbados Constitution. Section 1 of the Constitution of Barbados provides that laws in

Mandatory Aspect of the Death Penalty contrary to Fundamental Rights in Barbados Constitution and not Immunised from Judicial Review by Savings Law Clause Nervais and Severin v R [2018] CCJ 19 (AJ), 92 WIR 178 (CCJ Bar)

The appellants were convicted of murder in separate trials and each sentenced to death as required by section 2 of the Barbados Offences against the Person Act (OAPA). Although the court of appeal of Barbados

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violation of the Constitution shall be void to the extent of the inconsistency; as such, the death penalty is void only to the extent that it is mandatory and valid to the extent that it is permissive.

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may be necessary to bring them into conformity with the Constitution. Finally, the majority found (Anderson JCCJ concurring on this point) that the mandatory nature of the death penalty also violated the separation of powers principle, on the basis that it reduces the court’s sentencing role to ‘rubber-stamping’ the dictates of the Legislature. Sentencing is a role which the Constitution specifically reserved for the Judiciary. The mandatory element impairs the judicial process and compromises judicial legitimacy and independence.

The appellants also contended that the mandatory death penalty violates a number of detailed rights – namely, the right to life (s 12), to be protected against inhuman and degrading punishments (s 15) and to a fair trial (s 18). However, the Crown countered that the savings clause in s 26 immunized the penalty, as an existing law, from judicial scrutiny under these rights. The majority ruled on this point that the effect of section 26 has long been misunderstood, to the extent that it was given priority over the mandate to modify in the Independence Order. By virtue of section 4(1) of the Independence Order, existing laws must first be brought into conformity with the Constitution. In this way, the courts will not be prevented from ensuring that the laws conform to the supreme law of the Constitution and are not calcified to reflect the colonial times. As such, given that section 2 of the OAPA was found to violate the rights to life, protection against inhuman and degrading punishment and to a fair trial as alleged, it had to be modified pursuant to s 4(1) of the Independence Order 1966. This meant changing its mandatory aspect to a discretionary one, which would eliminate its unconstitutional feature.

Constitutional Amendment limiting number of Presidential Terms did not Alter by Implication Articles 1 and 9 of the Guyana Constitution AG v Richardson [2018] CCJ 17 (AJ), (2018) 92 WIR 416 (CCJ Guy)

The respondent brought this motion seeking a declaration that the amendment to Art 90 of the 1980 Constitution effected in 2001, by which a limit of two terms was imposed on the office of the Presidency, is unconstitutional on the ground that it was merely passed by a two-thirds majority when in fact it required an affirmative majority vote in a referendum. The respondent complained that his right to choose whomsoever he wanted to be President, impliedly conferred by Arts 1 (declaring Guyana to be an ‘indivisible, secular, democratic sovereign state’) and 9 (vesting sovereignty of Guyana in its people, exercising that right through their representatives and democratic organs) of the Constitution, was diluted by that amendment. As well as the disqualification complained of, Art 90 as amended also disqualified (i) citizens by registration, and (ii) citizens not resident in Guyana for seven years prior to the date of nomination.

As to the effect of the general savings law clause, Byron P declared that it constituted ‘an unacceptable diminution of the freedom of newly independent peoples who fought for that freedom with unshakeable faith in fundamental human rights. The idea that even where a provision is inconsistent with a fundamental right a court is prevented from declaring the truth of that inconsistency just because the laws formed part of the inherited laws from the colonial regime must be condemned.’ According to the majority, the correct approach to interpreting this clause is to give it a restrictive interpretation which would give the individual full measure of the fundamental rights and freedoms enshrined by the Constitution. Where there is a conflict between an existing law and the Constitution, the Constitution must prevail and the courts must apply the existing laws as mandated by the Independence Order with such modifications as

Article 164 of the Constitution, which sets out the procedure for altering the constitution, stipulates that a Bill to alter Article 90 does not require a referendum 24

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if it is supported by a two-thirds majority in the Assembly. It was agreed by all parties that Art 90 had been amended in full compliance with the procedural requirements stipulated by Art 164(2)(b).

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diminish substantive voter choice. Indeed, the concept of qualifications for office is not open ended and usually includes matters of age, citizenship, residence and term limits. Further, Byron P urged that the meaning of the impugned articles (Art 1 democracy and Art 9 sovereignty) is best delineated by reference to the internal discussion and struggles in Guyana itself, rather than importing the meaning from elsewhere. History and context reveal that the amendment in question formed part of a participatory and exhaustive period of constitutional reform that garnered an unprecedented level of consensus in an evenly divided Parliament. Quite the contrary, the spectre of postelection ethnic violence has not reared its head in the elections that have occurred since these changes to the Constitution. In Byron P’s view, ‘Democracy and people power have evolved. It may be concluded that Article 13 has also been applied so that the people have a greater sense of inclusion with increased opportunities for participation in the decision-making process.’ For these reasons, the court concluded that no case was made out to disturb the will of the people expressed through the amending Act, given that it ‘did not dilute democracy in, nor undermine the sovereignty of the people of, Guyana’.

The amendment was ruled invalid both at first instance by Chang CJ (ag.) and in the Court of Appeal of Guyana (Cummings-Edwards JA dissenting) on the basis that an essential feature of a sovereign democratic state was the freedom of people to choose whom they wished to represent them, which right was adversely affected by the further disqualifications imposed. A further appeal to the CCJ by the Attorney General of Guyana was upheld (by a majority, Anderson J dissenting). Byron P, delivering the majority judgment with which all the remaining members of the court agreed, advanced two reasons – one procedural and the other substantive – for explaining why there was no implied amendment to Articles 1 and 9 of the Constitution. He made reference to Article 164, which prescribes the majorities required for alteration, reasoning that if it were intended that alterations to Article 90 were to be enacted in the same way as alterations to Articles 1 and 9 they would have been given the same level of entrenchment. The inescapable conclusion from this is that the framers of the constitution did not envisage that altering the qualifications to be President would necessarily impact on democracy or the sovereignty of the people in Guyana enshrined in Articles 1 and 9. Byron P was fortified by the reasoning of Lord Diplock in the Trinidadian case, AG v McLeod, where he held that it was irrational to consider that section 49(2) of the Trinidad and Tobago Constitution should be entrenched even though it was conspicuously omitted from the list of entrenched provisions.

Lawyers’ Association permitted to Investigate Allegations against Chief Justice to determine the course it wishes to take in respect of the Allegations Chief Justice v Law Association of Trinidad & Tobago

Byron P’s substantive reason for rejecting amendment by implication lay in the nature of a democracy and sovereignty of the people, the two articles (1 and 9 respectively) that were argued to be affected by the additional disqualifying factors imposed on those seeking the presidency. Byron P reasoned that the premise that Articles 1 or 9 imply an unlimited right to choose the Head of State is not obvious. The establishment of qualifications for the position of President is normal in Constitutions and does not necessarily

[2018] UKPC 23 (T&T)

Following a series of articles in the Press alleging improper conduct on the part of the Chief Justice of Trinidad and Tobago (seeking to influence an application for public housing by a friend/convicted felon; persuading colleagues to switch their state provided 25

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security to that of the felon’s company), the Law Association of Trinidad and Tobago (LATT) sought to establish a committee to ascertain the basis of the allegations and whether it should request of the Prime Minister to set the section 137 removal procedure into motion. The LATT resolved to set up a committee to inquire into the allegations against the Chief Justice with a view to deciding what course of action to take, including whether or not to make a complaint to the Prime Minister. Under section 137 of the Constitution of Trinidad and Tobago, the Prime Minister is the only person who can advise the President to initiate a formal inquiry into the conduct of a member of the higher judiciary which might in due course lead to his removal from office.

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s/he sees fit. Further, as a body of lawyers it could be counted on to conduct any investigation and present its conclusions in a responsible manner. Regarding the second objection raised by the Chief Justice, the Privy Council held that the LATT has no power to ‘hold the Chief Justice accountable’, though under s 5 of the Legal Profession Act 1986 and pursuant to Rule 36(4) of its Code of Ethics, it does have the power to make a formal complaint where this is justified and the duty to defend the judiciary against unjustified criticism. Some inquiry to establish whether or not there is a prima facie case for making a complaint is the obvious way to reconcile those two purposes. Further, the investigation by the LATT could not be equated with a judicial or quasi-judicial determination of legal rights and liabilities to which the conventional rules of natural justice apply – as the LATT would not be determining any civil rights or liabilities of the Chief Justice, not acting in a disciplinary capacity, nor acting as prosecutor or decision-maker in relation to any rights, liabilities or responsibilities of the Chief Justice.

The Chief Justice brought judicial review proceedings against the LATT, claiming that it had no power to conduct the proposed inquiry because the formal procedure under section 137 of the Constitution is the only type of inquiry into a judge’s conduct which is permitted, and also because the proposed inquiry was not within the statutory powers of the LATT. The Chief Justice also alleged apparent bias, bad faith and procedural unfairness. He succeeded on his two principal grounds at first instance (but not on the others). The LATT’s appeal was allowed (and the Chief Justice’s cross-appeal dismissed) by a unanimous Court of Appeal.

Finally, the Board held that there was no evidence to support the allegation of apparent bias, and certainly not the no confidence motion passed against the Chief Justice and some members of the JLSC in relation to the appointment of the Chief Magistrate to the Supreme Court bench at a time when she had many outstanding part-heard matters. A majority of the Court of Appeal felt there was nothing that disclosed a real possibility of bias and what LATT was demanding was the same as what many others in the society were also demanding, a view with which the Board would not disagree since it felt that the local courts were best placed to determine what the fair-minded and informed observer would make of the matters complained of. In other words, whatever the requirements of fairness were in this situation, the view of the Court of Appeal that they were met by LATT was upheld by the Board.

A further appeal to the Privy Council was dismissed, with the Board holding that nothing in section 137 indicates that it is the only way in which the conduct of a judge could be lawfully investigated. The fears of the Chief Justice that any investigation by LATT could undermine the section 137 procedure (by pre-judgment, or making a subsequent investigation more difficult, or by undermining public confidence in the Chief Justice if the findings are unfavourable, or undermining the protection offered by section 137 if the effect is to put pressure on the Chief Justice to resign by reason of the media coverage etc.) were all dismissed as unfounded because the LATT is in no position to make findings of fact that would be in any way binding upon the Chief Justice or any tribunal established under section 137. At the most, the LATT could refer a complaint to the Prime Minister, to treat with as

Delivering the judgment of the Board, Lady Hale underscored ([18]) the importance of judicial independence to the rule of law, ‘principally’ obtained by providing for ‘security of tenure’. This required ‘that a judge may only be removed from office, or otherwise

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penalised, for inability or misbehaviour and not because the government does not like the decisions which he or she makes. It is also required that removal from office should be in accordance with a procedure which guarantees fairness and the independence of the decision-makers from government.’

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allowing the appeal, that the applicant had standing to bring the proceedings. On the substantive issue, the CCJ found that the statutory framework was unambiguous and allowed only two options: either an applicant met the statutory criteria, in which case their name had to be entered on the register as an elector, or the applicant failed to do so, in which case they had to be duly informed. At no time, however, did the CEO have any discretion to add any further conditions for registration to those specified by the statute.

Executive has a Duty to Obey the Law entitling Commonwealth Citizens in Barbados to Vote

Delivering the judgment of the CCJ, Byron P had strong words for the failure of the CEO and/or her agents to register the applicant on the basis of a policy that was not set out in the law, holding that there was ‘a wider and more important principle at stake’ than the mere right to vote. Elaborating, Byron P described that principle as ‘one that was long fought over in England and which was finally settled as long ago as the Glorious Revolution of 1688-1689. It is that the Crown or the Executive Authority is subordinate to Parliament; that Acts of Parliament must be obeyed by the Executive Authority. This is a fundamental aspect of the rule of law which is at the core of Barbados’ constitutionalism. Neither the Executive Authority nor the Electoral Officer is entitled with impunity to establish or implement a policy that is at variance with the Constitution and laws of Barbados. To the extent that this is what is precisely being advanced here, the court must resolutely set its face against it. If there is good reason for the claimed policy to exist, then before it can lawfully be implemented the Executive must seek to have Parliament alter the law. Unless the law is altered any such policy is illegal and void and the courts must say so…’

Ventose v Chief Electoral Officer [2018] CCJ 13 (AJ); 92 WIR 118 (Bar)

Professor Eddy Ventose (the applicant) is a Commonwealth citizen, residing and working in Barbados under a CARICOM Skilled-National Certificate since 2006. He wanted to be registered as an elector in Barbados, ahead of the May 24th, 2018 elections. On three occasions between 2013 and 2018, the applicant submitted claims for registration, and on each occasion the Chief Electoral Officer (CEO) responded that the ‘long-standing policy’ of the Electoral and Boundaries Commission (EBC) was that persons are only registered if they are Barbadian citizens, permanent residents or holders of permitted immigrant status. In January 2018, the applicant commenced a judicial review application claiming that he should be registered as an elector as of right since he satisfied the conditions in section 7 of the Barbados Representation of the People Act, Cap 12 (ROPA). Gibson CJ upheld the claim and granted a mandamus order compelling the CEO to register the applicant within 14 days. On appeal by the CEO, the court of appeal of Barbados held that while the applicant satisfied the conditions in section 7, he was entitled only to a declaration to that effect, and quashed the mandamus order on the ground that there was no duty in the ROPA which compelled the CEO to register the applicant. The applicant sought special leave to appeal to the CCJ.

Thus, since the Court of Appeal had already determined on the evidence that the applicant was qualified to be registered, it was not open to the respondent or a registering officer to investigate the details on his application form and determine that he was not qualified. Accordingly, the CCJ ordered the respondent to cause the applicant’s name and address to be entered on the register in accordance with the governing regulations by 12:00 noon on 14 May 2018.

It was held by the CCJ, granting the special leave and

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i) if the person is in custody or subject to stringent bail conditions then the shorter the period attributable to institutional delay because these types of cases should receive priority especially custody cases.

Delineating the Test for a Trial within a Reasonable Time under Jamaica Constitution

b. What is the inherent time requirement of a case of the nature as the one under examination? i) the more complex the case the more likely that the inherent time requirements will be greater;

Mervin Cameron v Attorney General of Jamaica [2018] JMFC FULL 1 (Jam)

The claimant, a labourer with three previous convictions, was first offered bail in September 2017. After being in custody since his arrest he was ultimately charged in March 2013 with two murders. A preliminary inquiry was commenced on a date unknown and remained stalled since October 2016 before the filing of a constitutional motion. He alleged that the four year delay breached his right to trial within a reasonable time as guaranteed by section 14(3) of the Jamaican Constitution and its Charter of Fundamental Rights and Freedoms. He sought an order to stay the preliminary inquiry and a consequential order that he be released immediately if the preliminary inquiry was stayed.

ii) the determination of the inherent time requirement should be determined by statistical evidence or some other objective measure if available, and if not available the experience and sense of reasonableness of the court should be the guide; iii) the time is not influenced by the availability of counsel for the Crown or the defence. c. the periods are to be determined using either reliable statistical evidence and where this is absent the court will have to rely on its own experience and sense of reasonableness. 3. How much of the delay that actually occurred counts against the state? a. only the period that can count against the state or possibly some private person is included because the sections 14 (3) and 16 (1) is directed mainly against the state but in Jamaica may include private citizens; b. delay attributable to the defendant including waiver does not count against the state or any third party; c. other delay attributable to the defendant such as unreasonable conduct. This includes late changes of counsel, or failure to attend court or counselâ&#x20AC;&#x2122;s failure to examine disclosed material in a timely way to enable trial dates to be set; d. delays such as periods of emergency, natural disasters such as hurricanes, flooding or illness of a trial participant should not count against the state. 4. Was the delay that counts against the state unreasonable?

The Full Court held that there was no rational or legitimate reason for the right to be tried within a reasonable time to be encumbered by considerations of whether a fair trial is no longer possible. The Court adopted the analytical model of Cromwell J in Barrett Jordan v Her Majesty the Queen and the Attorney General of Alberta, et al [2016] 1 SCR 631; 398 DLR (4th) 38, seeing it as a refinement of the Privy Council precedent of Bell v Director of Public Prosecutions of Jamaica and another [1985] AC 937. In assessing whether there was a breach of section 14(3) the Court considered the following questions: 1. Is an unreasonable delay inquiry justified? a. has the defendant established that the overall length of time from charge/detention or arrest such that further inquiry is needed? If no, the enquiry stops and the defendant fails. If yes, move to question 2. 2. What is a reasonable time for the disposition of a case like this one? a. is any of the period attributable to institutional delay? 28

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a. In answering this question, the earlier questions 2 and 3 are to be determined in order to arrive at the time that the trial ought to have taken place; b. determine whether the time actually taken has exceeded the time that a case of the nature under examination should take. 5. Whether the delay was justified on an acceptable basis? a. If the time taken exceeds what a case of the type under examination should take, is there an acceptable explanation? b. if the explanation is acceptable then the delay is not unreasonable and therefore no violation has occurred; c. if the explanation is unacceptable then the violation has been established. 6. Other matters a. proof of prejudice is not required but if present strengthens the case for the defendants; b. absence of prejudice cannot make unreasonable delay reasonable; c. there may be cases where a case does not exceed the time for a case of that nature in the normal course of things but circumstances are such that what would be reasonable normally may well be unreasonable; d. a sudden and temporary condition such as the need to try another case urgently because witnesses are severely ill or may leave the island for extended periods may push a case out of the list and such an occurrence should not account against the state; e. bad faith, abuse of process or gross negligence on the part of the Crown resulting in delay counts more heavily against the state; 7. What is the appropriate remedy? a. if the breach is pre-trial, depending on the circumstances of the case the remedies may be 1) a declaration; ii) speedy trial order;

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v) any other remedy the court fashions under section 19 (3) of Charter b. If post-trial i) not likely to arise since the matter can be raised on appeal from the conviction but theoretically a constitutional challenge may be mounted; ii) quashing of the conviction. The Court concluded that the Claimant established a violation of his rights under section 14(3) of the Constitution. The majority held that the appropriate remedies in this case were a reduction in bail, constitutional damages, the completion of the preliminary inquiry and a determination whether the claimant should be committed for trial, failing which a stay of the proceedings and lastly, costs.

The Head of State adds another Layer of Protection from Political Interference for a Senior Public Officer in Grenada Bain-Thomas v Attorney General [2018] (2017) 91 WIR 324 (CA Gren)

The appellant was the highest public officer in the Public Service of Grenada (PSG), namely, a Cabinet Secretary. On February 6, 2014, the appellant received a letter from the Governor General, transferring her to another post within the PSG which was â&#x20AC;&#x2DC;to be determined by the Public Service Commission (PSC)â&#x20AC;&#x2122;. By letter, on that same date, the PSC appointed the appellant as the Executive Director of the Anti-Money Laundering and Counter Terrorism Financing Commission (AML/CTFC). The appellant commenced a constitutional action asserting that the manner of her removal and transfer from her post was in contravention of Section 85(2) of the Grenadian Constitution. At first instance the trial judge declared that her purported transfer by the

iii) compensation to be assessed at the end of the trial; iv) stay of proceedings; 29

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GG was void, but relying on a previous decision of the court of appeal, he refused to grant the other declarations sought. Both sides appealed.

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CCJ Upholds the Prosecution’s Right to Appeal as Compatible with the Guyana Constitution

The appeal was allowed in part, with damages and two-thirds costs to the appellant, while the crossappeal was dismissed. The court of appeal upheld the declaration that the transfer of the appellant from Cabinet Secretary was unconstitutional and void, and also held unconstitutional her purported appointment by the PSC as the Executive Director, AML/CTFC.

Hyles and Williams v DPP [2018] CCJ 12 (AJ); 93 WIR 353 (CCJ Guy)

In January 2008 eleven persons in Lusignan, a village in Guyana, were murdered in their sleep one night. Arising out of that horrific incident, the two appellants were arrested and charged with murder. The evidence against them included a confession by the second named appellant and testimony from two accomplices, against whom no charges were pursued. Both appellants were acquitted at trial. Pursuant to a newly included power, section 33B of the Court of Appeal Act, the Director of Public Prosecutions (DPP) appealed the acquittals, on the ground that there were material irregularities in the trial but for which the appellants would have been convicted. The court of appeal of Guyana allowed the appeal and ordered a re-trial, whereupon the two appellants appealed to the CCJ.

Blenman JA reasoned that the appellant’s office of Secretary to the Cabinet was protected from improper actions or unfairness in the PSC by another layer of insulation, namely the Governor General. By convention, the GG was required to be independent and, by law, was mandated to act fairly and objectively and not merely to ‘rubber stamp’ the decisions of the PSC. At no time could the PSC act independently of the Governor General, in relation to the appellant. The conjoint effects of the letters of the Governor General and PSC could not satisfy the constitutional requirements. When the Governor General left the PSC to determine the appellant’s post, this was in contravention of the spirit and intention of section 85(2) as she ought to have indicated the public office to which the appellant was to be appointed and ‘not leave it up to the whims of the PSC’.

Broadly, two types of issues were raised before the CCJ: the constitutionality of the amendments which gave the DPP a right to appeal a jury’s acquittal, and a number of (criminal) procedural points, whose impact on the verdict was contested. While upholding the constitutionality of the amendment conferring the right of a prosecution appeal, the CCJ disagreed with the court of appeal’s assessment of the nature and impact of the procedural irregularities at trial, and thus restored the jury’s verdict of acquittal of both appellants.

Da-Silva, the authority relied on by the judge at first instance, would not be followed. In particular, the Constitution mandated that the appointment and removal had to be done by the GG acting on the advice of the PSC. Any purported unilateral act by the PSC could not meet the constitutional requirement. Accordingly, the appellant was entitled to the second declaration sought, namely that the decision of the PSC to appoint her to the post of Executive Director was contrary to s 85(2) of the Constitution and was therefore null and void. Moreover, as the appellant had been unlawfully removed from the office of Secretary to the Cabinet, she was entitled to be compensated in damages for the breach of her constitutional right.

The CCJ dismissed the appellants’ contention that section 33B violated the protection against double jeopardy enshrined in Article 144(5) of the Guyana Constitution since the text of the article itself expressly excludes appeal proceedings from its ambit. This position mirrors that prescribed in Article 14(7) of the ICCPR, by which the rule against double jeopardy is not an absolute one, only operating once an acquittal is final—that is, once affirmed by an appellate court. 30

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Delivering the judgment of the court, Wit J explained ([42]) that despite the need for finality in proceedings and the principle of legal certainty, this exception facilitating prosecution appeals was justified by the need for ‘fundamental fairness’ and the ‘protection of the rights of other stakeholders in the criminal justice process’. But in a nod to the competing interests to be balanced, the legislation must have ‘proper safeguards’ in order to be constitutional, which it did for a number of reasons including its narrow temporal limit, its application to only a few serious offences, and the limited procedural grounds on which the DPP could appeal.

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lished—namely that the error actually led to the acquittal. Having regard to the specific procedural irregularities complained about by the DPP, the CCJ agreed with the Court of Appeal that there had been material irregularities at trial—namely, in the incorrect procedure adopted by the trial judge with regard to questioning the jurors prior to selection so as to determine potential bias, in the failure to investigate a relationship between a juror and a man alleged to be the appellant’s father, and finally in the judge’s failure to give a proper direction with regard to the appellants’ unsubstantiated allegations of police impropriety. However, applying the higher standard said to be more appropriate to prosecution appeals, the CCJ felt unable to infer that the appellants were acquitted because of those irregularities. Accordingly, the Court of Appeal decision on this point could not be upheld, and thus the jury’s verdict of acquittal of the appellants was restored.

The appellants also contended that section 33B did not apply to them as it had not been in existence at the time the charges were instituted, nor did the amendment specify that it was to have retroactive effect. Relying on The State v Boyce (Brad) [2006] 2 AC 76, however, the CCJ noted that it is only when an indictment is filed that a High Court trial begins. Since the Appellants were indicted in 2013 and the amendment had taken effect in 2010, the provisions applied to them.

Mandatory Minimum Life Sentence in Belize Unconstitutional

The court made short shrift of the final objection to the amendment’s constitutionality, holding that merely conferring a right of appeal on the DPP did not conflict with the principle of separation of powers. Since exercising a right to appeal could not pre-determine the outcome, which remained wholly with the judiciary, there was no encroachment on the judicial function by the executive.

August and another v R [2018] 3 LRC 552 (CCJ Bel)

Gregory August and Alwin Gabb were charged for murder in two separate matters. They were both convicted and sentenced to life imprisonment as per section 106(1) of the Belize Criminal Code. Both parties appealed to the Court of Appeal. A number of grounds were canvassed on appeal: as regards the conviction, the first appellant alleged that the failure of the trial judge to give a good character direction rendered his conviction unsafe and further that the trial judge had failed to direct the jury properly as regards material inconsistencies in the prosecution’s case; as regards the sentence, it was submitted that the mandatory minimum life sentence for murder pursuant to the proviso to s 106(1) was unconstitutional.

Regarding the procedural points, the CCJ found that the Court of Appeal applied the wrong test in allowing the DPP’s appeal, noting that where the prosecution is appealing a different and higher standard applies. Borrowing from the extensive jurisprudence from Canada on this issue, the CCJ held that on a prosecution appeal the prosecution must satisfy the court that, based on the evidence as a whole and the nature of the judicial errors, it can be inferred ‘with a substantial degree of certainty’ that had the errors not occurred, the accused would not have been acquitted. As with a conviction appeal there must be a material error, but in prosecution appeals an extra layer has to be estab-

The Court of Appeal upheld both convictions, but found that the mandatory minimum life sentence was 31

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unconstitutional to the extent that its mandatory nature, by not allowing for the individualization of the sentence, was disproportionate, irreducible and inhumane. The appellants appealed to the CCJ, but before the hearing, new legislation was enacted in Belize, including a Parole Act, in order to correct the deficiencies in the extant sentencing regime as identified by the court of appeal. Before the CCJ the parties agreed that the substituted provision created a discretionary sentence, but the appellants contended that there were serious deficiencies in the parole process outlined in the Parole Act – namely that it was comprised of a majority of members appointed by the Executive and could not be regarded as independent or impartial.

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time of sentencing, was required to ‘individualise’ the sentence by imposing a minimum period which had to be served. Noting the change in phrasing of the amended statute, along with other provisions of the said Act which clearly indicated the instances in which the legislature intended to impose a mandatory sentence, the majority concluded that section 106(1) as amended allowed for a maximum sentence of life, not a mandatory minimum sentence of life imprisonment. Saunders JCCJ dissented on the ground that the prescription of a mandatory life sentence was not sufficiently counterbalanced by the possibility of parole. In his view, sentences should be judicially determined and thus persons were short-changed by the legislatively imposed sentencing regime in which the starting obligation was the imposition of a sentence of life imprisonment.

By a majority (Wit JCCJ dissenting), the CCJ dismissed the appeals. Affirming the conviction of the first named appellant, Byron P (for the majority) agreed with the reasoning of the Court of Appeal of Belize that the first appellant was not entitled to the credibility limb of a good character direction since he did not give sworn testimony. While he was entitled to the propensity limb of a good character direction, the case against him was ‘sufficiently strong’ so that his conviction was inevitable. The majority also found no fault with the general directions on inconsistencies in the prosecution’s case, and clarified that there was no requirement for a trial judge to identify and discuss every inconsistency arising on the evidence. Considering the summing-up as a whole, there was no unfairness on this ground. Byron P also noted that the judge’s directions on circumstantial evidence were unduly favourable to the first appellant. Byron P held that in cases built on circumstantial evidence, the cogency of the inference of guilt was built not on any particular strand of evidence but on the cumulative strength of the strands of circumstantial evidence. Crucially, there is no need for each strand of evidence to point to guilt beyond a reasonable doubt; rather, it is the cumulative effect of all the evidence that matters and which must point inevitably to guilt.

Finally, the majority upheld the parole regime outlined in the newly enacted Parole Act. Regarding the objection to the composition of the Parole Board, Byron P distinguished the minister’s power of appointment from the power of selection. At least two members were appointed ex officio and not by the Minister; as regards the others, ‘it would be expected’, Byron P reasoned, that they would be appointed either by or after consultation with the respective Heads of the agencies or departments they represented. Moreover, once appointed the Board is autonomous—not required to report to the Minister or take directions from him, and enjoying security of tenure. In all the circumstances, it would be premature to make assumptions that the implementation of this new parole scheme would be improper or lead to concerns about the impartiality of the persons appointed to be on the Board. However, the majority concluded that the power of the Parole Board to extend the duration of the period of imprisonment set by the trial judge was an unconstitutional extension to the extent that they could consider factors beyond the safety of the public. The overarching consideration had to be safety of the public as mentioned in section 4(3)(c), and with that limitation the Parole Act was found to be in conformity with the Constitution.

As regards the joint appeal against the sentence, the majority (Saunders JCCJ dissenting) held that the new legislation did not mandate a life sentence but conferred a discretion on the trial judge who, at the 32

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that it intended to ‘repeal and replace’ the laws of Trinidad and Tobago in relation to sexual offences, it could not be saved by section 6 which only saves modified laws that ‘repeal and re-enact’ what was there before. According to Rampersad J, to ‘replace’ is qualitatively different from ‘re-enacting’, connoting ‘something new being introduced and enacted instead of what existed before’. Further, because the penalties for buggery and serious indecency were substantially increased in 1986, the new law did not merely repeal and re-enact but derogated to a greater extent from the rights of persons, thereby losing its ‘existing law’ status.

Criminalisation of Same-sex Consensual Activities between Adults in Private Unconstitutional in Trinidad and Tobago Jason Jones v AG of Trinidad and Tobago [2018] 3 LRC 651 (HC TT)

Sections 13 and 16 of the Trinidad and Tobago Sexual Offences Act 1986, Chapter 11:28 criminalise consensual sexual relations between persons of the same sex. The claimant, a gay man, argued that those sections prevented him from exercising his constitutional right to privacy and family life as it prevented him from forming a family unit and developing an intimate relationship with his partner. Further, he alleged that the prohibitions violated section 4(b) of the Constitution, which affords him equality before the law and protection against unreasonable, arbitrary and differential treatment of himself and his partner on the ground of sexual orientation. He sought declarations that the impugned sections violated his rights and be declared unconstitutional.

Turning to section 13’s Special Act exception, here too Rampersad J found that it could not be utilised to save the impugned sections. Identifying the approach as first requiring a finding that the law in question is a violation of a fundamental right, the judge held that there were multiple breaches here covering several rights – namely those to private and family life, human dignity, equality before the law and freedom of thought and expression. As to the second limb, whether the offensive law is ‘reasonably justifiable in a society that has proper respect for the rights and freedoms of the individual’, Rampersad J applied the test laid down in earlier authority, which was based on that articulated by the Canadian Supreme Court in R v Oakes [1986] 1 SCR 103. Having regard to the evidence and submissions before the court on all sides, he concluded that there was no cogent evidence that the legislative objective was sufficiently important to justify limiting the claimant’s rights. Moreover, since there already existed legislation which could address the actual criminal offence intended to be covered by the particular acts, the infringement was shown to be unjustified without even having to consider the second limb.

The defendant contended that sections 13 and 16 of the Act were saved by virtue of section 6 of the Constitution. Alternatively, that having been enacted with higher parliamentary majorities and being reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual, they were saved from unconstitutionality by section 13 of the Constitution. At first instance, Rampersad J rejected the Attorney General’s arguments and granted the declarations sought, namely that that sections 13 and 16 of the Act are unconstitutional and of no effect to the extent that those laws criminalised any acts constituting consensual sexual conduct between adults. The learned judge first held that the sections were not saved because of the amendments made to them after the Constitution had come into force. He reasoned that because the long title of the Sexual Offences Act 1986 disclosed

The court concluded that the claimant had proven, on a balance of probabilities, that the law is not sufficiently important to justify limiting his fundamental rights. To deny a minority their right to human dignity would be to sanction superiority based on the beliefs of only some persons in society. Rampersad J noted: ‘There is no doubt that maintaining the traditional family and values that represent society are important concepts but those words have now to be adapted to a 33

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different world than medieval and Victorian times.’ In his view, the religious views of one cannot trump the rights and freedoms of another; it is the role of the Court to uphold the Constitution and recognize the dignity of even one citizen whose rights and freedoms have been invalidly taken away.

disappointed. It was only at the stage of assessing the constitutionality of a limitation that there was greater room for differing legal policy approaches, depending on how much importance individual judges place upon individual liberty as opposed to executive or legislative authority and/or collective, community rights.

Prohibition of Same-sex Marriage contravenes Rights to Freedom of Conscience and Protection against Discrimination on the basis of ‘Creed’ in Bermuda

While the Court held that the Bermuda Constitution is secular and religious views could not be legislated, it rejected the submission that the revocation provisions of the DPA were enacted substantially or solely on religious grounds. In light of the doctrine of separation of powers, the Court found there was insufficient evidence to conclude otherwise. The only valid argument was that the impugned provisions of the DPA interfered with the applicants’ fundamental rights to freedom of conscience and protection against discrimination on the basis of creed. As to the former, Kawaley CJ held that it was self-evident that beliefs in relation to samesex marriage qualified for protection under s 8(1) of the Constitution. A law that prevented same-sex couples from marrying interfered with (or hindered) the ability of those who believed in a legally recognised marriage as an important institution to manifest that belief by participating in a legally recognised marriage ceremony. Those adversely affected included not simply LGBT persons, but their families, friends and/or their religious ministers as well.

Ferguson v Attorney General; OUTBermuda and others v Attorney General (2018) 93 WIR 226 (CA Berm)

In February 2018 the Parliament of Bermuda enacted the Domestic Partnership Act, which (inter alia) revoked judicial authority of the previous year (Godwin v Registrar General [2017] 3 LRC 596) that had guaranteed same-sex couples the right to marry. Further, the DPA provided that the 1981 Act would not take precedence over its provisions, which facilitated recognition only for a marriage between a man and a woman. The DPA also introduced a scheme of ‘domestic partnerships’ into which same-sex couples could enter. The applicants sought declarations that Parliament could not validly reverse the court’s decision that same-sex marriage was a right guaranteed by Bermudian law, on the basis that the DPA infringed their constitutional right to freedom of conscience (section 8), and their right not to be discriminated against on the ground of creed (section 12).

Regarding the prohibition of discrimination on the basis of ‘creed’, this ground was not confined to religious-based beliefs. In this case, the discrimination was suffered by those who were prevented from manifesting their beliefs by celebrating same-sex marriages, and such an interference was impermissible by reason of section 12 of the Constitution.

A law that prevented same-sex couples from marrying interfered with (or hindered) the ability of those who believed in a legally recognised marriage as an important institution to manifest that belief by participating in a legally recognised marriage ceremony.

Granting the applications, the court first maintained, following Minister of Home Affairs v Fisher (1979) 44 WIR 107 (PC Ber) that fundamental rights were to be interpreted as broadly as possible, with the evidential bar for establishing an interference being set as low as possible, so as to ensure that the importance of the right in question was vindicated rather than 34

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consistent with the vigour with which her attorney had insisted on her right to communicate with him and was in keeping with the reluctance of the police to permit any visit with an attorney. Further, the judge noted and was persuaded by the detail and consistency of the attorney’s testimony, which was not shaken under cross-examination, as compared unfavourably with the vacillating versions put forward by the police witnesses and the ‘halting and guarded’ manner in which some of them testified. On these facts, the court held that the presence of an officer/s in the interview room or deliberately keeping the door of the interview room open and standing at the doorway in execution of what they characterized as a ‘supervised visit’ did not afford Ms. Duncan reasonable facilities for private communication with her attorney, as required by section 3(2) of the St. Lucia Constitution.

‘Supervised visit’ with Attorney-at-law in violation of Right to be Afforded Reasonable Facilities for Private Communications with Attorney Nina Duncan v AG of St Lucia 31 January 2018, LC 2018 HC 2 (HC St Luc)

The claimant, Nina Duncan, was arrested for the offence of stealing by reason of employment upon her arrival into St Lucia. She was taken to the Central Police Station, where initially three police officers of varying rank did not want to permit her attorney to see her. It was only after her attorney began demanding names and numbers did they relent and permit a ‘supervised visit’. However, accounts of how the supervised visit played out differed. The claimant alleged that two police officers stood inside the interview room and one stood in the hallway outside the open door, all within earshot and observing the consultation. Conversely, the police witnesses stated that only one police officer stood in the hallway for security purposes and no police officer heard the conversation between the claimant and her attorney.

However, contrary to the position taken by both counsel, Smith J found that section 589 of the Criminal Code could be interpreted so as not to conflict with section 3(2) of the Constitution and the sanctity of conversations passing between counsel and client, by permitting visual surveillance. Any supervision beyond that, such as by listening in on a private interview, would be unnecessary and constitute a breach of both the Code and the Constitution. Smith J added that the fact that St Lucian police stations did not have soundproof interview rooms (as would be available in more developed countries), as argued by counsel for the respondent, could not diminish the plenitude of the claimant’s right to expect reasonable facilities for private communication with her attorney.

The claimant brought proceedings alleging that the police officers breached her constitutional right to be afforded reasonable facilities for private communication with her attorney under section 3(2) of the St. Lucia Constitution. The respondent denied that the police officers were in the interview room, admitting only that one was nearby for security reasons but could not hear any communications between the claimant and her attorney. Further, the respondent relied on section 589 of the Criminal Code, which permits surveillance of attorney-client communication when necessary, submitting that this operated as a limitation on the constitutional right.

Regarding redress, Smith J observed that a bare declaration of the breach of the claimant’s right would have been appropriate given that the only obstruction occurred at the CPS and that the police appeared not to be acting in bad faith but under the mistaken belief that section 589 permitted them to supervise the visit as they did. However, given the frequency of cases of police abuses before the courts, the socio-cultural reality in the Caribbean that bare declarations do not sufficiently deter abuse of power by the state, and the importance of the constitutional right to private communication, he chose instead to award vindicatory damages of $15,000 to the claimant for the breach of her right under section 3(2) of the Constitution. caribbono

In the Eastern Caribbean Supreme Court, Godfrey Smith J found in favour of the claimant and awarded her vindicatory damages for the breach of her constitutional right to private communications with her attorney. Smith J accepted the version of the facts given on behalf of the claimant because it was more 35

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CREDITS

Second Caribono Meeting, Port of Spain, Trinidad, August 2018; (Speaking) Cara Shillingford, Dominica

EDITORS: ARIF BULKAN, TRACY ROBINSON ASSISTANT EDITORS: RASHAD BRATHWAITE, ANDREW HUTCHINSON DESIGN: ROBERT HARRIS