devant maharaj v the attorney general...

of 27

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV 2009- 03591

BETWEEN

DEVANT MAHARAJ Claimant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant

Before: R. Boodoosingh J.

Appearances:

Mr Anand Ramlogan instructed by Ms Cindy Bhagwandeen for the Claimant

Mr Ian Benjamin instructed by Ms Rehanna Hosein for the Defendant

Delivered: 4 May 2010

JUDGMENT

1. Mr Devant Maharaj is the head of the Indo-Trinbago Equality Council (ITEC).

He is an executive member of a prominent Hindu organisation, the Sanatan Dharma

Maha Sabha (Maha Sabha), and he also stood for election in 2007 as a Member of

Parliament for a political party, the Congress of the People (COP). Over a period of

several months he had written to the Integrity Commission requesting they investigate

of 27

several complaints. One complaint, in particular, was on behalf of the Maha Sabha

regarding the non-issue of a radio licence to it.

2. The President of the Republic is empowered under the Constitution and in

accordance with the Integrity in Public Life Act, Chap. 22:01 to appoint an Integrity

Commission. He makes this appointment after consultation with the Prime Minister and

the Leader of the Opposition.

3. In February 2009 the members of the Integrity Commission resigned. In May

2009 the President appointed different persons to be members of the Integrity

Commission. For various reasons, all the members of the Commission appointed in May

2009 resigned. It is a matter of public record that the President appointed members of the

Integrity Commission on 15 March 2010.

4. Mr Maharaj in this claim says his right to the protection of the law under section 4

(b) of the Constitution has been violated by the delay in the appointment of the Integrity

Commission.

5. Mr Maharaj filed an affidavit in support of the claim. The defendant filed two

affidavits. The first is by Mrs J. Serrette, Private Secretary to the President, and the

second by Ms Rehanna Hosein, an attorney at law in the Office of the Attorney General.

6. Based on the contentions of the parties the issues for decision are as follows:

of 27

1. Can the court enquire into the non appointment of the Integrity Commission up to

15 March 2010?

2. Can this non appointment be challenged as a breach of the protection of the law

clause of the Constitution?

3. Can delay in appointing the Integrity Commission be considered a breach of the

protection of the law clause?

4. What consequence must any delay cause to amount to a breach of the protection

of law clause?

The Ouster Clauses

7. Section 80 (2) of the Constitution provides that the President shall act in

accordance with the direction of the Cabinet or a Minister. There are functions which the

President performs, however, not on the advice of a Minister or the Cabinet, but in his

own judgment. In certain cases he is required to consult with the Prime Minister and the

Leader of the Opposition before making specific decisions or appointments to offices.

One of those functions is the appointment of members of the Integrity Commission.

Another is the appointment of a Chief Justice. There are other functions which the

President performs in his own deliberate judgment without the requirement of

consultation.

8. Section 38 (1) of the Constitution states:

of 27

“38. (1) Subject to section 36, the President shall not be answerable to any court

for the performance of the functions of his office or for any act done by him in the

performance of his functions.”

9. This is a general section.

10. Section 80 (2) states:

“Where by this Constitution the President is required to act in accordance with the

advice of, or after consultation with, any person or authority, the question whether

he has in any case so acted shall not be enquired into in any court.”

11. This is a more limited but direct section. The court cannot under this section

enquire into whether the President has acted in accordance with the advice of, or after

consultation with, the specified persons. In other words, the court cannot enquire into the

nature of the process of advice or consultation.

12. The effect of section 38 (1) is to oust the jurisdiction of the court from enquiring

into the actions of the President. But this is not an absolute ouster. The President’s

actions cannot be enquired into once his actions are lawful. In my view, his actions will

not be protected if they are unlawful.

of 27

13. The Constitution must be read as a whole. It must also be given effect to as a

whole. The ouster provision cannot trump other provisions of the Constitution if the

President acts contrary to them.

14. This was hinted at in the case of Florence Bobb and Girlie Moses v Patrick

Manning [2006] UKPC 22 per Lord Bingham of Cornhill at para. 3:

“Acting under section 76 (1) (b), the President appointed the respondent as Prime

Minister on 24 December 2001. The appellants have made no criticism of that

action. Sections 38 and 80(3) of the Constitution would appear to preclude any

challenge to the President’s decision in any event. But it is not suggested that the

President acted other than properly in the difficult, and no doubt unwelcome,

situation in which he found himself.”

15. Further, and more directly at paragraph 14, Lord Bingham continued:

“The rule of law requires that those exercising public power should not do so

unlawfully. They must act in accordance with the Constitution and any other

relevant law. In some contingencies these instruments may make quite clear what

an office-holder must do. For instance, if a resolution of no confidence in the

Prime Minister is passed by the House by the required majority, he must within

seven days resign or advise the President to dissolve Parliament, and if he fails to

do so the President must revoke his appointment. There is no grey area here. But

some contingencies are not the subject of express constitutional provisions, and

the respondent’s situation on 6 April 2002 was one of them. His duty was then to

of 27

act as the Constitution required or (put negatively) to avoid acting inconsistently

with it.”

16. This statement was broadly made. The language is mandatory. In the given

situation the Prime Minister “must within seven days resign or advise the President to

dissolve Parliament” and the President “must revoke his appointment” (emphasis

supplied). Notwithstanding the ouster provision in relation to the President, there is no

reason in principle why the court should not have the power of review in relation to the

President where he is mandated to act and does not so act. The rule of law is a

fundamental principle which underlies the Constitution. Requiring the President to act in

accordance with the Constitution is doing no more than remaining faithful to the rule of

law.

17. In addition, a few examples will show why the constitutional framework requires

that unlawful actions of the President must be reviewable. First, after a general election,

the President must appoint the leader of the party who commands the support of the

majority of members of the House of Representatives to be Prime Minister. If the

President does not appoint the leader of the party who commands the support of the

majority of members of the House the President would have acted unlawfully.

18. Second, assume after an election the leader of a previous opposition party wins

the support of the majority of members of the House, if the President deliberately refuses

of 27

to revoke the appointment of the sitting Prime Minister and to appoint that person, he

would be acting unlawfully.

19. Third, assume that after a general election the President decides deliberately not

to appoint anyone to the post of Prime Minister, he would be acting unlawfully.

20. Fourth, the President appoints members of the Integrity Commission. One of the

members must be an attorney at law of ten years standing. Should he appoint an attorney

at law to fill that particular position who is not yet of ten years standing, again, he would

be acting unlawfully.

21. Fifth, if he appoints a person who is unqualified because he is a person in public

life under the purview of the Integrity Commission, he would be acting unlawfully.

22. It could not be that the actions of the President in those circumstances cannot be

challenged in court. To so hold would be to rewrite the Constitution to provide for

supremacy of the President instead of supremacy of the Constitution. It would mean the

Constitution is subject to the President instead of the President being subject to the

Constitution.

23. Once, however, the President acts consistently with the Constitution, then his

actions cannot be challenged. His lawful discretion cannot be challenged. To illustrate,

if the President appoints an attorney at law of ten years standing who is not otherwise

of 27

disqualified by the Constitution, then the President’s choice cannot be challenged. There

may, objectively, be better persons available to be appointed. But the court is prevented

from enquiring. He would have acted within the discretion allowed by the Constitution.

There is a difference between the fact of appointing persons and who is appointed, once

the persons are lawfully qualified. This holds for various appointments which the

President makes in his judgment such as the Chief Justice and Independent Senators. In

this regard I was referred to the case of Re: Blake (1994) 47 WIR 174, a decision of the

Eastern Caribbean Court of Appeal. This concerned the appointment of the Prime

Minister of St Christopher and Nevis by the Governor General. That case was

distinguishable since the appointment was one made under the discretion allowed where

the Governor General had to make a judgment as to who was “likely to command the

support of the majority of the Representatives.” It called for subjective evaluation. That

case is clearly one that would not be subject to review. It is different from the examples

cited above.

24. Further, the court is prevented from enquiring into the nature of the consultations

which the President holds with the Prime Minister and the Leader of the Opposition

where such consultations are prescribed under the Constitution. It is up to the President

to decide the method of consultation and how this is to be effected. It would not,

however, be legitimate to use the consultation process as a reason for saying that other

functions cannot be performed. Since the consultation process is fully within the control

of the President it would be open to the President to modify the consultation process if

of 27

this is necessary to perform other functions such as the appointment of persons to

particular offices.

25. It also cannot be that the only recourse then available would be to initiate the

constitutional procedure for the removal of the President. In the first three examples set

out above, the failure to make the appropriate appointment would make it almost

impossible for Parliament to be called. If Parliament cannot be called then the

procedures for the removal of the President cannot be initiated.

26. These extreme examples are cited to show that the ouster provisions must be read

carefully and with common sense. In a constitutional democracy the court as the ultimate

guardian of the Constitution must be allowed to review unlawful executive action even

when such action may reside with the Head of State. The relevant question is each case

would be whether the President is acting unlawfully.

Protection of the Law

27. The next issue that then arises is how wide the ambit of the protection of the law

clause is. It has traditionally been thought that this right is synonymous with a person

having access to the courts. This is reflected in the decision of the Privy Council in

Attorney General v Mc Leod [1984] 1 WLR 522 where Lord Diplock made the

statement at page 532:

of 27

“Access to a court of justice for that purpose is itself “the protection of the law” to

which all individuals are entitled under section 4(b)”.

28. In that case, however, the Privy Council specifically declined to supply a

comprehensive definition of the meaning of protection of the law. There was no detailed

discussion of the full ambit of the scope of that clause in the Constitution. The issue was

left open to be developed and decided later on. It is plain to see that Lord Diplock’s

“access to the court” comment must be confined to the facts presented in that case since

the Privy Council explicitly declined to provide a comprehensive definition.

29. In Suratt v The Attorney General HCA No. 1526 of 2003, Smith J. (as he then

was) considering the case of Vriend v Alberta (1998) 3LRC 483 at paragraph 21 said:

“Suffice it to say that I preferred the arguments proferred by the Applicants and I

find that all things being equal, the suspension/non-implementation of the Act

would have deprived the Applicants of the due protection of the law.

I found support from this view from the case of Vriend v Alberta (1998) 3

LRC 483 (Supreme Court Canada) a case which will be referred to again later in

this judgment. In Vriend’s case, it was held (inter alia) that the failure of the

Legislature to secure the enactment of laws which purported to give rights to

persons in homosexual or lesbian relationships on the basis solely of their sexual

orientation amounted to discrimination and was a denial of (inter alia) the rights

to equal protection of the law and of access to the remedial procedures established

by the Individual’s Rights Protection Act 1980 (see page 514). These rights seem

of 27

to equate roughly to those provided for in sections 4 (b) and 5 (2) (h) of the

Constitution.

This case lends support for the proposition that a failure to enact or to

implement laws which purport to give rights to individuals can be a denial of the

right of those individuals to the protection of the law and/or to the remedial

procedures established by such laws.”

30. While the Privy Council did not specifically deal with this issue in the appeals in

the Suratt case, it being considered unnecessary to do so, there is much force to this

statement and relevance to this case. A failure to implement a law which gives certain

protections or rights, broadly speaking, can amount to a denial of the protection of the

law. To apply this statement to this case, the failure to appoint members to an Integrity

Commission can in effect deny persons the option to make a complaint and have it

investigated and determined.

31. Again in Suratt, there was no decision on the extent of the clause. In this regard,

see the judgment at paragraphs 5 to 8 and 37. There have been no direct authority cited

which sets out the meaning of this clause which is binding on this court. It is therefore

left for me to consider the section and to give it the purposive construction that

fundamental rights provisions must be given.

32. The starting point here, therefore, is consideration of the provisions of the

Constitution on the Integrity Commission and the Integrity in Public Life Act. Section

of 27

138 (1) of the Constitution says “There shall be an Integrity Commission…” Section 138

(2) sets out the duties. These are receiving declarations of assets and liabilities and

incomes of prescribed persons, supervision of matters connected to this, supervision and

monitoring of standards of ethical conduct of prescribed persons and the monitoring and

investigating of conduct, practices and procedures which are dishonest and corrupt.

These functions are fleshed out in the Integrity in Public Life Act, Chap. 22:01.

Section 5 of that Act sets out the functions of the Commission. Section 5 states:

5. (1) The Commission shall—

(a) carry out those functions and exercise the powers specified in this Act;

(b) receive, examine and retain all declarations filed with it under this Act;

(c) make such enquiries as it considers necessary in order to verify or determine

the accuracy of a declaration filed under this Act;

(d) compile and maintain a Register of Interests;

(e) receive and investigate complaints regarding any alleged breaches of this Act

or the commission or any suspected offence under the Prevention of Corruption

Act;

(f) investigate the conduct of any person falling under the purview of the

Commission which, in the opinion of the Commission, may be considered

dishonest or conducive to corruption;

(g) examine the practices and procedures of public bodies, in order to facilitate the

discovery of corrupt practices;

(h) instruct, advise and assist the heads of public bodies of changes in practices or

procedures which may be necessary to reduce the occurrence of corrupt practices;

(i) carry out programs of public education intended to foster an understanding of

standard of integrity; and

(j) perform such other functions and exercise such powers as are required by this

Act.

33. Section 5 (2) (b) and (c) provides:

(2) In the exercise of its powers and performance of its functions under this Act,

the Commission—

(b) may in all cases where it considers it appropriate to do so, make use of the

services or draw upon the expertise of any law enforcement agency or the Public

Service; and

(c) shall have the power to authorise investigations, summon witnesses, require

the production of any reports, documents, other relevant information, and to do all

of 27

such things as it considers necessary or expedient for the purpose of carrying out

its functions.

34. Section 11 provides for a duty of persons in public life to furnish declarations of

their income assets and liabilities to be examined by the Integrity Commission. Section

12 says the Integrity Commission “shall examine every declaration that is filed” and may

request any information or explanation from a declarant. Section 14 provides for a

person in public life to file a Statement of Registrable Interests. The Commission has a

duty to compile a Register of Interests which any member of the public can inspect.

Section 17 provides for the Commission to take appropriate action where a breach of the

Act occurs. Where it is satisfied an offence has been committed it shall refer the matter

to the Director of Public Prosecutions. There is a special regime regarding declarations.

There are specific offences relating to declarations. Under 17 (2), it must stay its

proceedings regarding declarations if certain action is being taken by the police or the

DPP. There is a duty to maintain the confidentiality of declarations. Under section 22

the Commission can order a person to place his or her assets in a blind trust if a breach of

the Act occurs.

35. Part IV relates to the conduct of persons in public life. Section 24 requires

persons in public life to carry out their functions and administer public resources in an

efficient and effective manner. Section 24 states:

24. (1) A person to whom this Part applies shall ensure that he performs his

functions and administers the public resources for which he is responsible in an

effective and efficient manner and shall—

(a) be fair and impartial in exercising his public duty;

(b) afford no undue preferential treatment to any group or individual;

of 27

(c) arrange his private interests whether pecuniary or otherwise in such a manner

as to maintain public confidence and trust in his integrity.

(2) A person to whom this Part applies shall not—

(a) use his office for the improper advancement of his own or his family’s

personal or financial interests or the interest of any person;

(b) engage in any transaction, acquire any position or have any commercial or

other interest that is incompatible with his office, function and duty or the

discharge thereof;

(c) use public property or services for activities not related to his official work; or

(d) directly or indirectly use his office for private gain.

(3) No person to whom this Part applies shall be a party to or shall undertake any

project or activity involving the use of public funds in disregard of the Financial

Orders or other Regulations applicable to such funds.

36. Sections 25 to 29 deal with various matters including insider information,

influence, gifts, confidentiality and conflict of interests. Under section 31 the

Commission shall report any breach of Part IV to the appropriate Service Commission,

Board or Authority and to the DPP.

37. Section 32 gives a member of the public the power to make a complaint in

writing. This section provides:

32. (1) A member of the public who wishes to allege or make a complaint that a

person in public life or any person exercising a public function—

(a) is in contravention of this Act;

(b) in relation to the Register of Interests, has a conflict of interest; or

(c) is committing or has committed an offence under the Prevention of Corruption

Act,

may do so in writing to the Commission.

38. Under section 33 the Commission must on the complaint of a member of the

public consider and enquire into alleged breaches of the Act. The section states:

of 27

33. The Commission—

(a) may on its own initiative; or

(b) shall upon the complaint of any member of the public, consider and enquire

into any alleged breaches of the Act or any allegations of corrupt or dishonest

conduct.

39. Special powers of investigation are set out in section 34. These are extensive but

include powers to authorise an investigating officer to conduct an enquiry; to require a

person to produce within a specified time books, records, accounts etc; to require a

person to furnish information or answer questions; to summon witnesses; to require a

person to furnish a statement in writing of property held or monies held; and, to require

officials of banks or financial institutions to provide information regarding accounts of

persons being investigated. Where there are reasonable grounds for suspecting an

offence has been committed the Commission shall make a report to the DPP: Section 34

(5).

40. This legislation is clearly far reaching. The short title sets out that its purpose is

to make provision for the prevention of corruption by requiring public disclosure, to

regulate the conduct of persons exercising public functions and to preserve and promote

integrity of public officials and institutions. Mechanisms were provided to give effect to

these objectives. The powers of the Commission are wide as section 5 shows. Under

Part IV specific mention is made of particular types of conduct that are desirable and

conduct which is not permitted. The public is given a special opportunity to make

complaints and the Act sets out a duty on the Commission to consider and enquire into

those complaints. Specified investigative tools are given to the Commission.

of 27

41. The complaint mechanism is a vital provision when considering the protection of

the law clause. The various acts and conduct of persons in public life which the Act

seeks to deal with can have both a direct and indirect impact on individuals and groups.

Corruption takes away resources which may properly be channeled to individuals and

groups. Acts of public officials may impact on other constitutional rights such as the

right to equality of treatment. The complaints mechanism is a way in which these

violations can be discouraged, exposed, remedied and punished. It is a means by which

redress in a broad sense can be had. It at very least initiates the process by which these

results can be realised. Groups such as those with which Mr Maharaj is concerned have a

special interest in the functioning of the Integrity Commission. The allocation of

resources in a plural society, such as Trinidad and Tobago is, can be very contentious.

There is a strong public interest factor in the functioning of the Integrity Commission.

The Integrity Commission with its protections and duties is an important institution in

developing and promoting good administration and governance. It is important in

protecting the resources of the State and ensuring its fair distribution. A properly

functioning Integrity Commission promotes accountability.

42. The Act as a whole is designed to achieve identified objectives and to regulate

conduct. It is plainly in the public interest for these objectives to be realized.

43. Mr Benjamin submitted that Mr Maharaj has alternative remedies. He can make a

report to the police or he can write to the Director of Public Prosecutions. Thus, he says,

of 27

Mr Maharaj is still guaranteed the protection of the law because he can go elsewhere.

That however, respectfully, is not the right question.

44. To the extent that the framework of the Integrity Commission is part of the

schema of the protection of the law, the issue is whether the failure to appoint for the

period under consideration has denied him the protection of the law. One must look to

the effect or consequence of this act and not to whether he can do otherwise. The

legislation gives him the option of filing a complaint with the Integrity Commission and

to have the complaint run the course of consideration by the Integrity Commission. The

Constitution and the supporting legislation gives him this specific option. To the extent

he was denied pursuing this option he could be denied the protection of the law provided

by the Constitution. An aspect of the range of protection of the law mechanisms can be

said to be denied him because he has no effective access to the Commission. No one is

there to consider, investigate, adjudicate, and act on his complaint.

45. Mr Benjamin has advanced that there are alternative courses of action or remedies

available to Mr Maharaj and therefore there is no breach of the protection of law clause.

He advances that the court should not give a constitutional law remedy in this case. In

my view, the existence of an alternative remedy or other courses of action does not

necessarily mean that there is no breach of the protection of law clause. Parliament has

in statute prescribed an avenue through which Mr Maharaj can exercise a right. This is

specific. There are many reasons why he may wish to avail himself of this particular

remedy. It may be a more cost effective remedy. It may be he has no confidence in other

of 27

remedies. It may be that he thinks this is a more direct route. It may also be that,

practically speaking, other authorities or functionaries aware of the Integrity Commission

route may await their lead. They may defer to the Integrity Commission. They may be

prepared to sit back and wait. They, for other reasons, may be choosing not to act.

It is not as simple as saying there are alternatives.

46. Considering the Integrity Commission statute there are options open to the

Commissioners which may not be available otherwise. One of the powers of the

Commission as set out above is to refer the case for disciplinary action. But this would

be done after an investigative process. The Act sets up a framework for investigations. It

may be far more feasible or effective to pursue this avenue in preference to a complaint

made to a Service Commission. Further, the consideration and investigation by the

Integrity Commission may enhance the ability of other organs of the State to more

successfully prosecute cases. It may lead to more careful scrutiny of the specific types of

complaints identified under the legislation.

47. Parliament has prescribed rights and options to complainants in the Integrity

Commission legislation. If complainants are effectively denied the chance to have their

complaints considered and determined within a reasonable time this is a denial of the

protection of the law. It does not matter that there are other options open unless those

options can be shown to be equal or more effective or more appropriate. Given the

extensive jurisdiction of the Commission in respect of sensitive matters it cannot be said

that other options may be equal, more effective or more appropriate. I refer in support of

of 27

this conclusion specifically to the Part IV ambit of the Commission. Also, the

Commission is permitted by section 5 (2) of the Act to use the services of any law

enforcement agency or the Public Service.

48. It cannot be that the will of Parliament in setting up a statutory framework if

matters relating to integrity in public life can be simply cast aside by the suggestion that a

complainant can take his complaint elsewhere.

49. One cannot say a right is not breached because the claimant still has another

option. The right is being breached in relation to the particular option provided by the

avenue of the Integrity Commission.

Unreasonable Delay

50. The next issue is whether there was unreasonable delay in the appointment of the

Integrity Commission.

51. There are four facts of importance to this case recited in the affidavit of Mrs

Serrette sworn 4 December 2009. She says that she is able to say that since May 2009 at

least 30 persons have been approached by the President to determine their willingness to

serve as members of the Integrity Commission. His Excellency had written to both the

Prime Minister and the Leader of the Opposition and they have both responded. His

Excellency has not completed the exercise. She finally says she is aware that a particular

of 27

challenge for His Excellency is that one member of the Integrity Commission must be a

chartered or certified accountant and it is not merely enough for such an individual to

merely have experience or degree qualification in that area.

52. This evidence was not challenged. It follows that the President made efforts to

secure the services of persons to serve as members of the Integrity Commission. Those

efforts eventually bore fruit. The court is not placed in the position to enquire into the

nature of the process adopted or to pronounce on the thoroughness of the search

conducted. The court must, considering any explanations advanced, decide whether there

has been unreasonable delay in the appointment of an Integrity Commission.

53. Given what had transpired with the membership of the last two Commissions, it is

understandable that the President would have wished to approach his task on this

occasion with a great degree of care, discretion and sensitivity. However, the President,

given the constitutional mandate to appoint an Integrity Commission, must have balanced

this against the need to act without unreasonable delay. This motion was filed on 6

October 2009. The last Integrity Commission had resigned in May 2009, some 4 and a

half months before. The last functioning Integrity Commission had resigned in February

2009, almost 8 months before.

54. Mr Benjamin urged me to consider the time taken for the appointments to be

made in light of the relative importance of the body concerned to the functioning of the

State. Whereas appointments to other offices may be seriously detrimental to the

of 27

functioning of the State it was suggested that the country continued to function without

significant disruption in the absence of an Integrity Commission. While I accept that the

time allowable must vary depending on the necessity of the position to the functioning of

the State (for example, the appointment of a Prime Minister and the swearing in of an

Attorney General after a general election to constitute a Cabinet) this would only be a

matter of degree. The Integrity Commission is an important public institution. It is both

a symbol for members of the public who desire that the behaviour of public officials

should meet certain standards and a mechanism to ensure that those standards are

achieved. It is entirely significant that the Commission is established not by an ordinary

statute but by the Constitution itself.

55. In making appointments to the different offices the President must be given a

wide measure of leeway and flexibility. These offices are by nature sensitive. Careful

consideration must be given to these appointments. The President must be given a more

than fair opportunity to look carefully at the choices and to exercise his judgment. At the

same time the Constitution uses mandatory language when it says, “There shall be an

Integrity Commission…” The need for very careful scrutiny must be balanced by the

importance the framers of the Constitution accorded to these institutions by incorporating

their existence into the Constitution itself.

56. The Constitution is not an ordinary statute. It is the supreme law. It follows that

reasonable expedition must be adopted by the President in fulfilling the dictates of the

Constitution. This is summed up in the test that there must not be unreasonable delay.

of 27

The Constitution does not contemplate that the President will not appoint an Integrity

Commission or would do so only after unreasonable delay. It is a question of balance.

Just as a judge in giving a decision will be allowed a fair opportunity to consider a

complex case and come to a decision, so too must the President be given a fair chance to

make these appointments. But similarly, just as the delay by a judge in giving a decision

can eventually amount to a breach of the protection of the law clause, so too can the delay

of the President breach that clause when making appointments in an appropriate case.

This breach can occur if the citizen is being effectively denied the opportunity to avail

him or herself of the avenues provided by the law for assertion, ventilation or

determination of a legal right.

57. What had happened regarding the resignation of the members of the respective

Integrity Commissions in February and May 2009 was bound to impact on the President

in his making appointments on this occasion. He may have wanted to exercise greater

care in scrutinising the proposed members. He may have also wanted to conduct more

complete investigations. He may have wanted to consult and search more widely. He

may have wanted to adopt a new process to investigate the proposed members. In doing

this the President would have been entitled to seek additional resources from the

executive or legislature. All of these matters would have been for the President and about

which the court has no place in enquiring.

58. It may also have been legitimate for him to take more time to come up with

prospective names. But this could only be excused for so long. This factor is different in

of 27

character from those mentioned in the previous paragraph. The Constitution demands the

appointment of an Integrity Commission. Because of this, appointments have to be made

without unreasonable delay. The court is permitted to enquire into this factor as surely as

it is not permitted to enquire into the process adopted.

59. Time for appointments to offices provided by the Constitution must be considered

in terms of hours, days and weeks, or in exceptional cases, a few months (maybe 3 to 6)

but not many months and certainly not a year or years. To permit unreasonable delay

would fail to give effect to the clear provisions of the Constitution. The significance of

the appointment to the functioning of the State is a relevant factor but not one that

excuses unreasonable delay.

60. I therefore hold that unreasonable delay in the appointment of members of the

Integrity commission can in an appropriate case lead to a breach of the protection of the

law clause of the Constitution. I also find that notwithstanding the significant difficulties

faced by the President there was unreasonable delay in making the appointments to the

Integrity Commission on this occasion.

Consequences of the Delay

61. The final element is to consider the consequences of the delay. This determines if

there has been an actual breach of the protection of the law clause.

of 27

62. In Jerome Boodhoo v Attorney General of Trinidad and Tobago, [2004]

UKPC 17 per Lord Carswell, para 12, the Privy Council said:

“In their Lordship’s opinion delay in producing a judgment would be capable of

depriving an individual of his right to the protection of the law, as provided for in

section 4 (b) of the Constitution of Trinidad and Tobago, but only in

circumstances where by reason thereof the judge could no longer produce a

proper judgment or the parties were unable to obtain from the decision the benefit

which they should. For example, on an application to prevent the threatened

abduction of a child, any delay in giving judgment might deprive both the

applicant and the child of the benefit which the legal remedy was there to provide.

Their lordships do not think it profitable to attempt to define more precisely the

circumstances in which this may occur or to specify periods of delay which may

bring about such a result, since cases vary infinitely and each has to be considered

on its merits applying this principle.”

63. Considering this dicta it is important to examine if there is any benefit which the

applicant in this case could be said to be deprived of in this case. Benefit can be an

elastic concept depending on what is being looked at. In the case of the threatened

abduction the benefit will derive from not being spirited away and thus being denied the

protection of family. Here Mr Maharaj has asserted he wears several hats. He is an

executive member of a religious organisation. He is the Chair of the Indo-Trinbago

Equality Council. He has also contested national elections. One complaint relates to

favouritism in the provision of land by the Tobago House of Assembly to one religious

of 27

grouping. Other complaints concern the conduct of the Prime Minister, the Attorney

General, and the Acting Commissioner of Police. There are other complaints regarding

the conduct of public officials.

64. In considering this issue I find some assistance in considering the Jerome

Boodhoo case cited above. This case concerned delay in giving a judgment. Both De La

Bastide CJ and the Privy Council made remarks which give an indication of the effects

which delay must have to lead to a breach of the protection of the law clause. In this

connection the issue is not one of resources but of the quality of justice (paragraph 8). At

paragraph 12, cited above, Lord Carswell noted that the right to protection of the law

would be deprived where by reason of the delay the judge could no longer produce a

proper judgment or the parties were unable to obtain from the decision the benefit which

they should. Earlier, at paragraph 11, Lord Carswell stated:

“… delay may have so adversely affected the quality of the decision that it cannot

be allowed to stand. It may be established that the judge’s ability to deal properly

with the issues has been compromised by the passage of time, for example if his

recollection of important matters is no longer sufficiently clear or notes have been

mislaid.”

65. I think it is possible to draw an analogy with the capacity of an appointed

Integrity Commission to deal properly with the issues raised in the various complaints

and to make a proper judgment on the complaints and to give the benefit sought by a

of 27

complainant. Such a benefit would be a fair and thorough investigation of the complaint

and the taking of such action as the members consider appropriate.

66. I am mindful that it is difficult for an applicant to prove the prejudice the delay in

conducting an investigation will cause. That can better be gleaned after the results of the

investigation are known. Then it can be seen if important evidence has been lost, or if

tracks were covered up, or if complainants have become frustrated. At this stage a fair

amount of speculation is involved.

67. And while I am also mindful that delay in conducting investigations can lead to

prejudice to the proper determination of a complaint, I do not think there is sufficient

evidence before me to come to the conclusion that the appointed Integrity Commission

on account of the delay in this case will be unable to deal properly with the issues, make

a proper judgment or give the benefit sought by Mr Maharaj. I have not come to this

conclusion lightly but, as much as I could, by examining the nature of the complaints that

Mr Maharaj has filed with the Integrity Commission. Looking at the complaints, I think

a fair investigation is still very much possible. I also think proper conclusions and action

can follow. Much will depend on the diligence of the members of the present Integrity

Commission in the way they approach their task and on their commitment to make up for

lost time.

68. I do not find therefore that there has been a breach of the protection of the law

clause in this case, even though I find there has been unreasonable delay in the

of 27

appointment of the Integrity Commission. The declarations sought are accordingly

refused and the claim is dismissed.

69. I would ask for brief written submissions on costs within three weeks.

Ronnie Boodoosingh

Judge

devant maharaj v the attorney general...

Documents