in the high court of justice cv 2015-00892 earl elie the...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV 2015-00892

Between

EARL ELIE Claimant

And

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Defendant

BEFORE THE HONOURABLE MADAM JUSTICE DEAN-ARMORER

APPEARANCES:

Ramesh Lawrence Maharaj (S.C) leading Ms. Vijaya Maharaj, instructed by Nyala Badal,

Attorneys-at-Law on behalf of the Claimant

Russell Martineau (S.C) leading Sanjeev Lalla, instructed by Laura Persad and Ryan Grant,

Attorneys-at-Law on behalf of the Defendant

JUDGMENT1

Introduction

1. In August, 2011, the ruling Government, declared a State of Emergency in Trinidad and

Tobago. Three years later, proceedings were initiated under section 14 of the Constitution

challenging the legality of the State of Emergency.

1 On the 1st December, 2017, the Court read a summary of its judgment into the Record.

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2. In the course of this judgment, the Court considered the circumstances in which the Court

would review the decision of the Executive to declare a State of Public Emergency and

whether the Emergency Powers Regulations were reasonably justifiable for the purpose for

which they had been enacted.

Evidence

3. The evidence in this matter was by Affidavit only. The Claimant relied on his own Affidavit.

The Defendant relied on Affidavits sworn by the following deponents:

Gary Edwards2

Basdeo Ramdhanie3

Surajdeen Persad4

Dave Williams5

Ann Marie Alleyne-Daly6

Don Lezama7

Mervyn Richardson8

John Sandy9

Rajnauth Lutchman10

2 Filed on 11th September, 2015 3 Filed on 11th September, 2015 4 Filed on 11th September, 2015 5 Filed on 2nd October, 2015 6 Filed on 2nd October, 2015 7 Filed on 2nd October, 2015 8 Filed on 29th February, 2016 9 Filed on 29th February, 2016 10 Filed on 21st March, 2016

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Facts

4. On the 21st August, 2011, the President of Trinidad and Tobago, by Proclamation No. 8 of

2011, declared that a State of Public Emergency existed in Trinidad and Tobago. The

President had acted on the advice of the Cabinet, the members of which had debated the

issue and concluded, that the declaration of a state of emergency was the correct step to take.

5. The complete terms of the Proclamation are set out below:

“WHEREAS it is enacted by:

(a) Section 8(1) of the Constitution that the President may, from time to time,

make a Proclamation that a state of public emergency exists; and

(b) section 8(2) of the Constitution that a Proclamation made by the President

shall not be effective unless it contains a declaration that the President is

satisfied that action has been taken or is immediately threatened by any

person, of such a nature and on so extensive a scale as to be likely to

endanger the public safety.

Now, therefore, I, GEORGE MAXWELL RICHARDS, President as aforesaid,

in pursuance of the powers conferred upon me by section 8(1) of the

Constitution hereby declare that:

(a) I am satisfied that action has been taken or is immediately threatened by

persons or bodies of persons of such a nature and on so extensive a scale

as to be likely to endanger the public safety; and

(b) a state of public emergency exists in the Republic of Trinidad and Tobago.

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Given under my Hand and the Seal of the President of the Republic of Trinidad

and Tobago, at the Office of the President, St. Ann’s, this 21st day of

August, 2011

6. On the same day, His Excellency enacted the Emergency Powers Regulations 2011. These

were preceded by a statement by the Honourable Kamla Persad Bissessar, who at the time

was the Prime Minister of Trinidad and Tobago. The Prime Minister’s statement was

reported in the media. It’s salient parts are set out below:

“The entire nation has been rocked with the recent tragic news of the spate

of murders over the past few days. The situation has reached proportions

which the government must respond to in the most definitive manner

possible. I am advised that one of the causations for the spike in murders is

ironically linked to the success by the police in the discovery of large drug

hauls with values in excess of twenty million dollars in just one raid. These

large sums of money simply do not disappear from the drug trade without

consequences and in some of the cases now occurring, this is the result. The

question though isn't just what is causing it but how do we deal with it?

As you know, we have deployed more financial and human resources than any

government in recent time in dealing with the scourge of crime and until this

recent upsurge the nation had been encouraged by the decline shown by year

to years statistics. But a problem of this nature that has been the result of

years of neglect will not disappear overnight and we reassess day by day each

strategy deployed and how effective it is in achieving short term and long term

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objectives in reducing crime. But the current crime spree dictates that more

must be done and stronger action has to be employed now.

The situation cannot continue like this without a response commensurate with

the wanton acts of violence and lawlessness; it must be a response as well that

will halt the current spike in gang activity and crime in general in the shortest

possible time. After much deliberation with the National Security Council and

members of the Cabinet it has been agreed that the government consider the

imposition of a limited state of emergency in hot spots across the country.

Such a consideration must of course have the agreement of the President of

the Republic of Trinidad and Tobago, His Excellency, George Maxwell

Richards and I will be meeting with him to discuss this matter. The limited

state of emergency will allow us to achieve a number of things in relation to

crime reduction which would not be prudent for me to disclose in advance of

the action taken. We are aware that such a decision will have an impact on

the daily lives of innocent, law abiding citizens in these areas but I feel

confident that they will recognise and appreciate the need to protect them and

bring the current crime surge affecting them under control. We have the will

to tackle the crime problem in Trinidad and Tobago and the commitment to

place every resource at our disposal towards waging and winning this war on

crime. We will succeed. The nation will not be held to ransom by marauding

groups of thugs bent on creating havoc on our society. The limited state of

emergency in hot spots across Trinidad and Tobago is merely part of a larger

aggressive reaction response [sic] by the government. As these measures are

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being deployed using both our police and military we ask all citizens to bear

with the inconveniences that may arise from time to time. This is in everyone's

interest. In fact, I intend to hold discussions with the Leader of the Opposition

to seek his party's support with certain legislative matters in Parliament.

Trinidad and Tobago comes first. Nothing is more important than the right of

each citizen to be protected and to enjoy a life of peace and tranquillity”.

7. On 23rd August, 2011, the President delivered a statement to the Speaker of the House of

Representatives. His Excellency delivered this statement as he was required to do under

section 9 (1) of the Constitution11. The statement of His Excellency was read in the House

of Representatives by the Honourable Minister on National Security on 2nd September, 2011.

8. By his Affidavit, filed on the 29th February, 2016, John E. Sandy, who had, at the material

time, been the Minister of National Security, set out the rationale which motivated the

declaration of the State of Emergency.

9. At paragraph six (6) of his Affidavit, Mr Sandy referred to a number of “drug busts” by the

police in August, 2011. These culminated in the seizure of twenty two million dollars

($22,000,000) worth of cocaine at the Piarco International Airport on 16th August, 2011.

According to Mr Sandy, the seizure of cocaine was followed by a series of senseless and

brutal killings.

10. The former Minister of National Security alluded to further information and the assimilation

of intelligence, on the basis of which, Mr Sandy requested the Prime Minister to convene a

meeting of the National Security Council12.

11 Ch 1:01 12 See paragraph 7

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11. The National Security Council in fact met on 21st August, 2011. This meeting was followed

by an Emergency meeting of the Cabinet. Cabinet, at the meeting, considered the intelligence

received, as well as what might occur if Cabinet ignored the intelligence and the possible

consequences, if the intelligence was true.

12. Cabinet held the view that it would have been irresponsible to ignore the intelligence, having

regard to the extent of damage and the number of lives that could be lost. Alluding to the

1990 attempted coup, Mr Sandy said:

“We considered that the risk was too high”13

13. During the first fifteen (15) days of the State of Emergency, disturbing information was

unearthed with police discovering sophisticated arms and ammunition. It was the view of

the law enforcement authorities, that more time was required to conduct further

investigations. The State of Emergency was extended beyond the fifteen (15) days, pursuant

to section 10 (1) of the Constitution.14

14. During the extended state of emergency, the Special Branch of the Police Service began to

receive information of a plan to disrupt the nation and to assassinate the Prime Minister. The

Claimant was named as one of the suspects.15

15. Corporal Dave Williams of the Special Branch discussed this information with Surajdeen

Persad, who at the time had been the Director of National Security of the Strategic Services

Agency. Corporal Williams then prepared a report which was forwarded to Ann Marie

Alleyne-Daly, who was the acting Deputy Commissioner of Police16. The Acting Deputy

Commissioner of Police forwarded the report to Deputy Commissioner of Police Richardson

13 See paragraph 10 of the Affidavit of John Sandy filed on 29th February, 2016 14 Ibid. at paragraph 14 15 See the Affidavit of Dave Williams filed on the 2nd October, 2015 16 See the Affidavit of An Marie Alleyne-Daly filed on 2nd October, 2015

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to launch an investigation. It was her view that the best course of action would be to detain

and interrogate the suspects.

16. Investigations were subdivided, with one officer dealing with locating and detaining

suspects, the second dealing with the conducting of interviews and the third dealing with

answering telephone calls17. On 11th November, 2011, Commissioner of Police Dwayne

Gibbs and DCP Mervyn Richardson visited John Sandy at the Hyatt and informed him of

the results of the police investigation.18

17. It was against this backdrop that Deputy Commissioner of Police Richardson directed

Assistant Superintendent (ASP) Basdeo Ramdhanie to arrest the Claimant.

18. It is not disputed that ASP Ramdhanie had no knowledge of the offence for which the

Claimant was arrested. ASP Ramdhanie knew only that the arrest was pursuant to the

Emergency Powers Regulations, but nothing else. He arrested the Claimant at the St Clair

Police Station on 23rd November, 2011, and as directed, took the Claimant to the

Woodbrook Police Station.

19. On the 23rd November, 2011, at around 2:30 p.m. the Claimant was on duty at the St. Clair

Police station as Administrative Sergeant, when he was arrested by ASP Ramdhanie. ASP

Ramdhanie informed Mr Elie of instructions to detain him. ASP Ramdhanie then took him

to the Woodbrook Police Station. At the Woodbrook Police Station Mr. Elie was not

handcuffed, but sat on a chair in the reception area.

20. After about an hour had passed, ASP Ramdhanie informed Mr. Elie that he was detained

pursuant to the Emergency Power Regulations 2011. He was then taken to his home where

officers conducted a search for illegal firearms where nothing was found.

17 See the Affidavit of Don Lezama filed herein on the 2nd October, 2015 18 See paragraph 17 of the Affidavit of John Sandy

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21. Thereafter, Mr Elie was taken to the Four Roads Police Station where he was greeted by

ASP Edwards of the Criminal Investigations Department. Mr Elie was told that he would

later be informed of the reason for his detention by investigators.

22. On that day, the then Deputy Commissioner of Police, Mervyn Richardson, authorised the

continued detention of Mr. Elie, as this was required for the completion of necessary

enquiries.

23. On the 24th November, 2011, Mr. Elie, while in a holding cell, was informed by officers on

duty he was detained because he “he made threats to public safety and was involved in plan to

assassinate the Prime Minister and other Ministers”.19 Mr Elie was later interrogated by

Superintendent Don Lezama. Mr Lezama told Mr Elie that due to the “sensitive nature of the

investigations” he could not be permitted to consult a legal representative20. Mr. Elie also

deposed that he was not at all given any particulars of the allegations being made against him.21

24. On the evening of the 29th November, 2011, the Minister of National Security authorised

Mr. Elie’s detention pursuant to paragraph 2 of the Second Schedule to the Regulations22

on the basis of the allegation that Mr. Elie was involved in a conspiracy to assassinate the

Prime Minister, Attorney General and two other members of Parliament. Mr. Elie was

adamant that he was not questioned on these allegations during the first interview and was

not interviewed a second time.

25. After receiving the detention order, Mr. Elie was handcuffed and was taken to the Golden

Grove Prison where he was stripped and searched. He was placed in a cell in an area of the

prison known as “Guantanamo Bay”.

19 See paragraph 11 of the Claimants Affidavit 20 See paragraph 12 of the Affidavit of Don Lezama filed on 2nd October, 2015 21 Ibid at paragraph 15 and 16 22 The Emergency Powers Regulations 2011

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26. On the 30th November, 2011, Mr. Elie was taken to the Maximum Security Prison where he

again stripped and searched. He remained in custody at this prison until the 5th December

2011, when he was released without charge. Mr Elie he was detained for a total of thirteen

(13) days. Since Mr. Elie’s release, no further evidence was forthcoming in respect of the

allegations which led to his arrest.

27. In a statement reported in the Guardian Newspaper published on Saturday, 26th November,

2011, the then Prime Minister, described the alleged plot as an “an evil, devious act of

treason”. Having seen the article which was published in the Trinidad and Tobago Newsday,

Mr. Elie became fearful for his life, knowing that the penalty for treason is death.

28. The Detention Orders were made public and Mr. Elie’s name was published in the

newspaper on the 30th November, 2011. Mr. Elie then spoke of the fact that he was ashamed

to return to his Cunupia home, and that he was afraid to venture into public, being concerned

as to what people might have done or said to him.

29. Mr. Elie also deposed that since his return to work, his arrest and detention have had a

psychological effect on him, which has caused him to receive assistance from a social

worker. Furthermore, his relationship with his colleagues has become strained and he has

not been invited to meetings which he otherwise would have attended prior to his arrest.

30. Moreover, Mr. Elie has been denied his U.S. visa as there were “certain red flags” against

his name.

Issues

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31. The principal issue which engages the Court’s attention, is whether there had been a breach

of the Claimant’s fundamental rights, by reason of his arrest on the 23rd November, 2011

and by reason of his subsequent detention until his release on 5th December, 2011 at 7:25pm.

32. The resolution of this issue depends on the validity of the State of Emergency and requires

the determination of a second issue, that is to say, whether His Excellency, George Maxwell

Richards was justified in declaring that a state of emergency existed in Trinidad and Tobago,

in August, 2011.

33. The second issue which the Court will be required to resolve is, whether the Emergency

Powers Regulations 2011, pursuant to which the Claimant had been detained, were void by

reason of their inconsistency with the Constitution23.

34. Should the Court hold that the state of emergency and the Emergency Powers Regulations

2011 were lawful, the Court will proceed to consider whether the arrest of the Claimant was

unlawful and the appropriate quantum of compensation due to him.

Law and Discussion

35. The Court was assisted by the Written Submissions of Senior Counsel on behalf of the

Claimant and on behalf of the Attorney General. Both Senior Counsel, Mr. Maharaj (S.C)

and Mr. Martineau (S.C) supplemented their written submissions by oral arguments.

36. In the discussion which follows, there will be set out, the law in respect to each issue. The

law will then be applied to the facts in respect of each issue.

23 Ch 1:01

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Validity of the State of Emergency

37. Section 8 of the Constitution24 empowers the President to declare a state of emergency in

these words:

“s. 8(1) Subject to this section, for the purpose of this chapter, the

President may from time to time make a Proclamation declaring that a

state of public emergency exists.

s. 8(2) A Proclamation made by the President under subsection (1) shall

not be effective unless it contains a declaration that the President is

satisfied

I. That a public emergency has arisen as a result of the imminence of a

state of war between Trinidad and Tobago and a Foreign state

II. That a public emergency has arisen as a result of the occurrence of any

earthquake, hurricane, flood, fire, outbreak of pestilence or infectious

disease or other calamity whether similar to the foregoing or not

III. That the action has been taken or is immediately threatened by any

person of such a nature or of so extensive a scale as to be likely to

endanger the public safety….”

24 Ch 1:01

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38. Senior Counsel, Mr. Maharaj for the Claimant and Mr. Martineau for the Attorney-General,

relied on foreign and commonwealth cases in their submissions as to the meaning of “a state

of emergency”, and as to the role of the Court, in questioning its validity.25

A v. the Home Secretary26

39. This was a decision of the House of Lords. The facts concern the detention, in the United

Kingdom (UK), of nine (9) non-nationals under the Anti- Terrorism Crime and Security Act

2001. This Act had been made pursuant to a decision by the UK Government, that there was

a public emergency threatening the life of the nation within the meaning of the Convention

for the Protection of the Human Rights and Fundamental Freedoms.

40. Their Lordships considered whether there was a public emergency threatening the life of

the nation and held that such an assessment was “pre-eminently political in character, to be

made by the executive and Parliament… and that great weight ought to be accorded by the

Courts to their judgment”.27

41. It is pertinent to observe that in A v. the Home Secretary, the House of Lords did not hold

that the decision to declare a state of emergency was beyond the purview of the Court, but

that the Court would accord great weight to the judgment of Parliament and the Executive.

42. With Lord Hoffman dissenting, the majority of their Lordships decided that there was no

warrant for displacing the conclusion of the Executive that there was a public emergency.

25 The first of these was A v the Home Secretary 26 [2005] AC 68 referred by S.C for the Claimant 27 [2005] AC 68 of paragraph

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Secretary of State v. Rehman28

43. Rehman was a decision of the House of Lords and was cited and relied upon by both the

Claimant and the Defendant.

44. The Appellant, Rehman, was a Pakistani national, who had worked in the United Kingdom

for a number of years, before a deportation order was made against him pursuant to s.3(5)(b)

Immigration Act 1971. The deportation order was made on the ground that his deportation

would be conducive to the public good in the interest of national security.

45. Rehman appealed to the Special Immigration Appeals Commission. The Commission

found in his favour, holding that, in order to constitute a threat to national security, a person

had to engage in, promote or encourage violent activity targeted to the UK, its system of

government or its people.

46. Their Lordships upheld the decision of the Court of Appeal and remitted the decision to the

Commission. In the course of their judgments, their Lordships highlighted the role of the

executive in decisions relating to national security.

47. Accordingly, Lord Slynn had this to say at Paragraph [22]:

“The Secretary of State in deciding whether it is conducive to the public good

that a person should be deported, is entitled to have regard to all the

information in his possession about the actual and potential activities and the

connections of the persons concerned.

He is entitled to have regard to precautionary and preventative principles

rather than to wait until directly harmful activities have taken place… In so

28 [2003] 1 A.C. 153

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doing, he is not merely finding facts but forming an executive judgment or

assessment…”

48. Later in his judgment, Lord Slynn recognized that the Commission had the power to review

the decision of the Secretary of State, but emphasised that the Commission“… must give

due weight to the assessment and conclusions of the Secretary of State…”29

49. Accordingly one finds, once again, an acknowledgment that the executive is accountable to

the Court for decisions as to national security, but that the Court gives due weight to the

judgment of the executive.

50. The stark underlying reason, for the weight given to the judgment of the executive,

resonated from the postscript which was written by Lord Hoffman in Rehman30, after the

events which occurred in the US on September 11th, 2001. Lord Hoffman wrote these words:

“I wrote this speech some three months before the recent events in New

York and Washington. They are a reminder that in matters of national

security, the cost of failure can be high. This seems to me to underline the

need for the judicial arm of government to respect the decisions of ministers

of the Crown on the question of whether support for terrorist activities in a

foreign country constitutes a threat to national security. It is not only that

the executive has access to special information and expertise in these

matters. It is also that such decisions, with serious potential results for the

community, require a legitimacy which can be conferred only by entrusting

them to persons responsible to the community through the democratic

29 [2003] 1 A.C .153 per Lord Slynn at paragraph 26 30 [2003] 1 A.C. 153

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process. If the people are to accept the consequences of such decisions, they

must be made by persons whom the people have elected and whom they can

remove”.

Southern Highlands Provincial Government and Another v Somare and Others Yuwi and

Others v Somare and Others31

51. Somare was a decision of the Supreme Court of Papua New Guinea and was relied upon by

Senior Counsel for both the Claimant and the Defendant.

52. The National Executive Council of Papua New Guinea, advised the Head of State to declare

a State of Emergency and to dissolve the Provincial Government. The NEC formed the view

that an Emergency existed because of the breakdown in law and order, maladministration

and corruption.

53. The Supreme Court restated the principle, as stated in other courts, that a decision to declare

a State of Emergency was subject to judicial review where the decision was in excess of the

constitutionally conferred power, was irrational or based on irrelevant facts and

considerations32.

54. The Supreme Court of Papua New Guinea underscored the need for the NEC to provide

evidence and held that the onus fell on the NEC to prove that the existing circumstances

amounted to an emergency within the definition imposed by s.226 of the Constitution.33

They expressed the view that the circumstances affecting an emergency “should be of such

a scale and have such characteristics as ultimately to threatened public safety,

31 Somare [2008] 2L RC 372 32 See page 373f 33 Contrast the view of their Lordship in Ningkan v Government of Malaysia [1970] AC 397

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security, health and welfare of human lives and the environment” 34. However the NEC

placed no evidence before the Supreme Court, apart from the explanation in the National

Parliament.

55. The Supreme Court placed a broad interpretation on the definition of a public emergency

and held that it should “include situations of very serious civil unrest or disorder which

threatened the lives of citizens or threatened the government as an institution or its function

of providing public safety and services essential to the life of its people…”35

56. They held further that an emergency “…related the actions taken by natural persons from

within the country which were of such magnitude that the public safety and welfare was [sic]

threatened. Such actions related to harmful, illegal or criminal activities by criminals bent

on destroying human life, property and government…”36

57. However the Supreme Court underscored the need for caution and held that in case of doubt

or ambiguity, there should be “deference” to the judgment of the NEC.

The Siracusa Principles

58. Under the regime of the United Nations International Covenant on Civil and Political Rights

(ICCPR), principles were declared on the limitation and derogation of provisions in the

ICCPR. The principles, known as the Siracusa Principles were developed in 1984 by a

Committee of Experts from thirty-three (33) Countries. The Siracusa Principles provide at

paragraph 39:

34 See page 374g 35 See page 375d 36 Paragraph 375d

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“A state party may take measures derogating from its obligations under the

International Covenant on Civil and Political Rights pursuant to Article

4…only when faced with a situation of exceptional and actual or imminent

danger which threatened the life of the nation. A threat to the life of the nation

is one that affects the whole population and either the whole or part of the

territory of the state and (b) threatens the physical integrity of the population,

the political independence or the territorial integrity of the state or the

existence or basic functioning of institutions indispensable to ensure and

protect the rights recognized in the covenant.”37

59. Senior Counsel for the Defendant referred as well to older authorities as to the meaning of

public emergency. In Bhagat Singh and Others v. The King-Emperor38, the Privy Council

considered a Petition for Special Leave to appeal from the Court of Appeal of Lahore. Their

Lordships considered the meaning of a State of Emergency and had this to say:

“A state of emergency is something that does not permit of any exact

definition: It contains a state of matters calling for drastic action which is to

be judge as such by someone. It is more than obvious that that someone is

the Governor-Emperor and he alone…”

60. Bhagat Singh was cited in the later Privy Council decision of NingKan v Government of

Malaysia39

37 (Extracted in Somare [2008] 2LRC 395g) 38 [1931] UKPC 26 39 [1970] AC 397

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NingKan v Government of Malaysia40

61. In NingKan, their Lordships heard an appeal from the Federal Court of Malaysia, where

His Majesty the Yang di-Pertuas Agong, proclaimed a state of emergency under Article 150

of the Federal Constitution of Malaysia.

62. Their Lordships there held that the burden was carried by the appellant to prove that there

was no emergency. The Supreme Court of Papua New Guinea, had not considered NingKan

and held a different view as to the party which carried the burden of proof.

The Effect of International Covenants

63. Learned Senior Counsel, Mr Maharaj referred and relied on Matthew v the State of Trinidad

and Tobago41, in which a panel of nine (9) of their Lordships of the Judicial Committee of

the Privy Council considered the constitutionality of the mandatory death penalty in Trinidad

and Tobago.

64. Matthew42 followed the decision of their Lordships in Reyes v The Queen, which was an

appeal from the Court of Appeal of Belize.

65. The majority of their Lordships upheld the effect of the savings clause of s.6 (1) of the

Constitution which preserved existing laws from being declared unconstitutional

notwithstanding that they were inconsistent with ss.4 and 5 of the Constitution.

66. In the course of his judgment, Lord Hoffman, delivering the majority decision, considered

the effect of ICCPR, to which Trinidad and Tobago was a party, as well as the decisions of

the OAS Human Rights Committee and Inter American Commission on Human Rights,

40 [1970] ac 379 41 Matthew v the State of Trinidad and Tobago [2005] I AC 433, a decision referred by Learned Senior Counsel for the Claimant 42 Matthew v the State of Trinidad and Tobago [2005] 1 A.C. 433

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where the death penalty was held to be cruel and unusual punishment. Lord Hoffman alluded

to this principle:

“The principle that domestic law should so far as possible be interpreted

consistently with international obligations and the weight of opinion

expressed in domestic cases decided in other jurisdictions supports the

conclusion that section 4 and 5 of the Constitution should be similarly

interpreted…”43

67. The majority of their Lordships held however that inconsistency with sections 4 and 5 of

the Constitution had no effect on the validity of the death penalty because of the effect of

the savings clause.

68. Their Lordships considered the submissions of Fitzgerald, Q.C. as to the effect of s.5 (1) of

the 1976 Constitution Act. Rejecting the submissions of Fitzgerald Q.C, Lord Hoffman had

this to say at paragraph 20:

“If the Constitution itself shows a plain intention to preserve existing law,

their Lordships find it impossible to accept that Parliament, by enacting

section 5 (1) of the 1976 Act, can have created a mechanism under the

Constitution for undermining the effect of its provisions…”

Matadeen v. Pointu44

69. In Matadeen supra, a decision referred to by learned Senior Counsel, Mr. Maharaj, their

Lordships considered an appeal from the Supreme Court of Mauritius, in respect of a

decision of the Minister of Education of Mauritius to amend the Examination Regulations.

43 Ibid at page 449 44 Matadeen v Pointu [1999] 1 AC. 98

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70. The Plaintiff claimed that the decision of the Ministry involved discrimination and was

contrary to the ICCPR and to the Declaration of the Rights of Man, adopted in 1793, when

Mauritius was a colony of France.

71. Their Lordships gave effect to the clear provisions of the Constitution and held “that

although the Declaration of the Rights of Man was a legitimate aid to the construction of

section 3 of the Constitution it could not be used to curtail the powers of decision which the

Constitution conferred on Parliament…”45

72. It is therefore my view, that the principle to be extracted from these cases, is that the Court

is required to give effect to the clear words of the Constitution. International Treaties may

be used as an aid to interpretation in the event of ambiguity. They will not however, prevail

over the clear provisions of domestic legislation.

Decision on the Constitutionality of the State of Emergency

73. It was my view, that the lofty authorities cited and relied on by both parties reaffirm the

Court’s power of review of executive decisions concerning national security and the

declaration of the state of public emergency. See for example the most recent authority of A

v. the Home Secretary46. Within that broader principle, the Courts speak with one voice, that

in matters of national security, great weight is given to the judgment of the executive.

74. The Courts have recognised that the assessment as to whether there is a public emergency

“is pre-eminently political in character” (See A v. Secretary47).

45 Matadeen v Pointu [1999] 1 AC. 98 46 [2005] 2 A.C. 68 47 Ibid

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75. Moreover, in the chilling words of Lord Hoffman in Secretary of State v. Rehman “the cost

of failure can be high”48.

76. Guided by these principles, the Court examined the decision of Government, through His

Excellency, Maxwell Richards, to declare a State of Emergency in Trinidad and Tobago.

77. His Excellency declared that he was satisfied “…that action has been taken or is

immediately threatened by persons or bodies of persons of such a nature or so extensive, a

scale as to be likely to endanger public safety”.49

78. The particulars of those threats were alluded to by Prime Minister, Mrs. Kamla Persad

Bissessar and by His Excellency in his statement to Parliament. The Court also received

evidence by way of the affidavit of John Sandy, as to the spate of murders which attended

the “drug busts” as well as intelligence of greater threatened violence.

79. Senior Counsel, Mr. Maharaj argued that the evidence which was placed before this Court,

fell short of a threat to the life of the nation, which was the definition of a state of public

emergency to be found in international conventions to which Trinidad and Tobago was a

party.

80. It seemed clear to me, that the state of Trinidad and Tobago in August, 2011, as portrayed

in the evidence before this Court, constituted a threat to the life of the nation in a very literal

way. Citizens were being deprived of their lives with such rapidity as to merit the use of the

words “a spate of murders”, meaning a flood, deluge or torrent of murders.

81. Nonetheless, I considered whether the Executive was bound by the provision of the ICCPR

and the Siracusa Principles. The words “threatening the life of the nation” were not

employed in the declaration of His Excellency. His Excellency alluded to circumstances

48 [2003] 1 A.C. 153 at page 195, paragraph 62 49 The Proclamation of His Excellency

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which “endanger the public safety”. I considered whether, in this way, the Proclamation fell

short of the circumstances identified in the Siracusa Principles under the auspices of the

ICCPR where “a State can derogate from rights…only when faced with a situation of

exceptional and actual imminent danger which threatened the life of the nation”.

82. In considering the effect of international covenants, the Court was guided by the words of

Lord Hoffman in Matthew v. State of Trinidad and Tobago50 where His Lordship

expounded the principle that:

“Domestic law should so far as possible be interpreted consistently with

international obligations and the weight of opinion expressed in domestic

cases…”51

83. In Matthew however, the majority of their Lordships gave effect to the plain intention of

Parliament as expressed in the savings clause of the Constitution.

84. Similarly in the Privy Council decision of Matadeen v Pointu52, their Lordships gave effect

to the plain intention of Parliament as shown in the Constitution.

85. It was my view, that it was clear from the authorities that the Court ought to have due regard

to the contents of international treaties. Where however, the domestic legislation is clear, the

Courts will give effect to their plain meaning, leaving breaches of international law to be

addressed at the appropriate forum.

86. Accordingly, His Excellency was empowered by the Constitution to declare a state of public

emergency where in the discretion of the executive, one of the circumstances identified in

50 [2005] 1 AC 433 51 [2005] 1 AC 433 at paragraph 12 52 [1991] 1 AC 98

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section 8(2) of the Constitution53 existed. His Excellency declared that circumstances at

section 8(2) (c) existed.

87. It was my view, that the evidence before this Court, patently supported the view that there

were actions and threats of such a nature and so extensive a scale as to endanger public

safety.

88. The Court considered evidence not only of the statement of His Excellency and of the Prime

Minister, but also the evidence of Mr. Sandy, Minister of National Security of the material

time. It was undisputed that Cabinet considered what might have occurred if a State of

Emergency had not been declared and held the view that it would have been irresponsible to

ignore the information which was before them.

89. In those circumstances, the words of Lord Hoffman are apropos. The cost of failure could

be too high. In such circumstances, the Court must allot great weight to the judgment of the

Executive. It is therefore my view and I hold that there was no grounds for declaring the

State of Emergency to be invalid.

Decision on the Legality of the Emergency Powers Regulations

90. In the alternative, the Claimant argues that the Emergency Powers Regulations (“the

Regulations”) were unconstitutional in that they were not reasonably justifiable for dealing

with the situation that existed.

Emergency Powers Regulations, 2011

91. Regulation 2 of the Emergency Powers Regulations defines “proclamation” and “period of

public emergency” in this way:

53 Ch 1:01

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(2) “…proclamation” means the Proclamation made by the President under

section 8 of the Constitution declaring that a state of public emergency

exists in Trinidad and Tobago;

“period of public emergency” means the period during which the state of

public emergency declared by the Proclamation exists, including any

extensions thereof under section 10(1) of the Constitution;

15. Notwithstanding any rule of law to the contrary, a police officer may,

without a warrant and with or without assistance and with the use of

force, if necessary— (a) enter and search any premises; or (b) stop and

search any vessel, vehicle or individual, whether in a public place or not,

if he suspects that any evidence of the commission of an offence against

regulation 9, 13 or 14 is likely to be found on such premises, vessel,

vehicle or individual and may seize any evidence so found.

16. (1) Notwithstanding any rule of law to the contrary, a police officer may

arrest without warrant any person who he suspects has acted or is acting

or is about to act in a manner prejudicial to public safety or to public

order or to have committed or is committing or is about to commit an

offence against these Regulations; and such police officer may take such

steps and use such force as may appear to him to be necessary for

affecting the arrest or preventing the escape of such person.

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(2) Subject to these Regulations a person arrested by a police officer under

sub-regulation (1) may be detained in custody for the purposes of

inquiries.

(3) No person shall be detained under the powers conferred by this regulation for

a period exceeding twenty-four hours except with the authority of a magistrate

or of a police officer not below the rank of Assistant Superintendent, on either

of whose direction such person may be detained for such further period, not

exceeding seven days as in the opinion of such magistrate or police officer, as

the case may be, is required for the completion of the necessary inquiries,

except that no such directions shall be given unless such magistrate or police

officer, as the case may be, is satisfied that such inquiries cannot be completed

within a period of twenty-four hours.

92. By their provision, Regulation 19, a detained person is denied bail and access to a Writ of

Habeas Corpus in these terms:

19. (1) Notwithstanding any rule of law to the contrary, but subject to these

Regulations, no bail shall be allowed in the case of any person-

(a) in respect of whom a detention order is in force under the

provisions of the Second Schedule;

(b) detained under the provisions of regulation 16: or

(c) charged with an offence, if it is shown to satisfaction of the

magistrate that it is reasonably apprehended that the person arrested

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is likely to engage or to incite persons to engage in the commission of

breaches of the peace or of any other offence against the person or

property or against these Regulations, or any Orders, instructions or

directions made thereunder.

(2) The Writ of “habeas corpus” shall not lie in the case of any person denied

bail by under subregulation (1) and no jurisdiction to grant bail in the

case of such denial shall be exercised by any Judge of the Supreme Court

under and rule of law or other authority…

93. The Emergency Powers Regulations 2011, having been made pursuant to section 7 of the

Constitution54, are deemed to have effect, even though inconsistent with sections 4 and 5 of

the Constitution55 “except in so far as its provisions may be shown not to be reasonably

justifiable for the purpose of dealing with the situation that exists”.

Ramsingh v the Attorney General of Trinidad and Tobago

94. Learned Senior Counsel Mr Maharaj cited Ramsingh v. the AG in support of his submission

that the Regulations were inconsistent with ss. 4 and 5 of the Constitution.

95. In Ramsingh, their Lordships set out the principles which govern summary arrest in

Trinidad and Tobago. At paragraph 8 of his judgment, Lord Clarke had this to say:

“The relevant principles are not significantly in dispute and may be

summarised as follows:

54 Ch 1:01 55 Ibid

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i) The detention of a person is “prima facie” tortious and an

infringement of section 4(a) of the Constitution of Trinidad and

Tobago.

ii) It is for the arrestor to justify the arrest

iii) A police officer may arrest a person if, with reasonable cause, he

suspects that the person concerned has committed an arrestable

offence

iv) Thus the officer must subjectively suspect that that person has

committed such an offence

v) The officer’s belief must have been on reasonable grounds or, as some

of the cases put it, there must have been reasonable and probable

cause to make the arrest

vi) Any continued detention after arrest must also be justified by the

detainer.”

96. His Lordship referred as well to the statement of the learned authors Clayton and Tomlinson

in their “Law of Human Rights” that police are required to justify a person’s detention on a

minute by minute basis.

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The Attorney-General v. Morgan

97. Learned Senior Counsel for the Defendant relied on the decision in Morgan, where the

Court of Appeal considered whether the Rent Restriction (Dwelling House), Act 1981 was

shown not to be reasonably justifiable in a society that has proper respect for the rights and

freedoms of the individual.

98. The Court of Appeal stressed that the burden was carried by the Respondent to prove that

the Act was not reasonably justifiable in a society that has a proper respect for the rights and

freedom of the individual. On that basis, the Court of Appeal allowed the appeal and held

that the respondent had failed to discharge the onus which lay on him.

Suratt v. Attorney General of Trinidad and Tobago56

99. Suratt was a decision of the Judicial Committee of the Privy Council in respect of the

constitutionality the Equal Opportunity Act 2000, in so far as it established an equal

opportunity tribunal.

100. In the course of delivering the majority decision, Baroness Hale had this to say:

“…legislation frequently affects such rights as freedom of thought and expression

and the enjoyment of property. These are both qualified rights which may be limited

either by general legislation…provided that the limitation performs a legitimate

aim and is proportionate to it…The courts may on occasion have to decide whether

Parliament has achieved the right balance…”57

56 Suratt and Others v AG [2007] 71 WIR 391 57 See Suratt [2007] 71 WIR 391 at page 414 paragraph 58

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101. Suratt was applied by Bereaux JA in Inshan Ishmael v Attorney General of Trinidad and

Tobago58. These decisions, both binding on me, pertained to Acts of Parliament and

not subsidiary legislation such as Regulations. These authorities however directly

affect the matter before me, since, in assessing the constitutionality of the

Regulations, the first question which the Court must ask itself is whether the

Regulations are inconsistent with ss. 4 and 5 of the Constitution.

102. Accordingly, I applied the test in Suratt to the Emergency Powers Regulations, which were

relevant to this case. It was my view that the Regulations were indeed inconsistent with

section 4 (a) of the Constitution, in so far they trespassed on the right of the individual liberty

and the right not to be deprived except by the process of law. It was my view, in particular

that the suspension of the right to apply for a writ of Habeas Corpus constituted an

infringement of both the rights enshrined at sections 4 (a) and 5 (2) (c) (iv) of the

Constitution59.

103. In the event that I am wrong in this assessment, I will proceed to consider the second part of

the test provided at section 7 (3) of the Constitution, that is to say whether the Regulations

“…may be shown not to be reasonably justifiable for the purpose of dealing with the

situation that exists during that period…”

De Freitas v. Ministry

104. In respect of what was “reasonably justifiable”, both parties relied on the threefold test

which was formulated and applied by the Privy Council in De Freitas v. Ministry of

Agriculture60.

58 Civil Appeal 146 of 2008 59 Ch 1:01 60 De Freitas v Ministry of Agriculture [1999] 1 A.C. 69

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105. De Freitas was an appeal from the Court of Appeal of the Eastern Caribbean, in which the

Applicant, Elloy De Freitas was interdicted, pending disciplinary charges in respect of his

participation in a peaceful demonstration against government corruption.

106. By participating in demonstrations, the Applicant had acted contrary to the Civil Service Act,

which at section 10 (2) (a) contained this prohibition:

“A civil servant may not-

(a) in any public place or in any document or any other medium of communication

whether within Antigua and Barbuda or not, publish any information or

expressions of opinion on matters of national or international political

controversy…”

107. The applicant contended that section 10 (2) infringed his constitutional rights to freedom of

expression and peaceful assembly as generated at sections 12 and 13, of the Constitution of

Antigua and Barbuda.

108. In upholding the appeal of the Appellant, their Lordships held that the blanket restraint which

imposed the same restriction on the most junior civil servant as on the most senior was

disproportionate to the legislative objective and this is not reasonably justifiable in a

democratic society.61

109. By De Freitas the Court is required to consider whether the Regulations are proportionate,

whether their purpose is sufficiently important for the infringement of a constitutional right;

whether the Regulations were rationally connected to the purpose for their creation and

whether the infringement was more that was necessary.

61 See De Freitas v Ministry of Agriculture [1999] 1 AC 69 of 70D

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110. I proceeded to apply De Freitas to the Emergency Powers Regulations 2011 (hereinafter

called “the Regulations”) .These Regulations were brought into force pursuant to section 7

of the Constitution62. This section confers emergency powers on the Executive including the

power to “make regulations for the purpose of dealing with that situation”.63

111. The emergency, which gave rise to the Regulations, was fully depicted in the evidence

before this Court. In summary, the country was beset by a “spate of murders”, which was

apparently caused by the discovery and seizure of drugs. The Court also heard the evidence

of the Minister of National Security that Cabinet thought the situation so dire that it would

have been irresponsible of them not to act.

112. It was my view, that it was clear that in such circumstances, the executive and the protective

forces in particular, were in combat with persons who were both experienced and ruthless.

For that purpose, measures were necessary to procure their detention, not only for the

purpose of having them charged and brought to justice, that also for the purpose of

investigations.

113. It was therefore my view, that the summary detention of suspects and the enhanced power

of search and seizure were clearly rationally connected to the purpose of stemming the spate

of murders, which were a reaction to drug busts.

114. It was also my view, that the measures prescribed by the Regulations were no more than

necessary. It was my view that this was clear when one compared non-emergency and

otherwise constitutional powers of detention search and seizure with the provisions of the

Emergency Powers Regulations.

62 Ch 1:01 63 See section 7 (1) Constitution

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115. Under the non-emergency laws, a police officer may effect a summary arrest where he has

reasonable cause to suspect that the person to be detained has committed an arrestable

offence. By the Regulations, the element of “reasonableness” is removed.64 The power of

arrest was not, however, an open door. The arresting officer was still required to hold a

suspicion that the person detained was acting or was about to act in a manner prejudicial to

public safety or public order, which in my view, were infractions greater than a mere

arrestable offence.

116. In considering whether the Regulations were disproportionate, the Court was mindful that

the Regulations permitted serious incursions into entrenched fundamental rights. The Court

was also mindful of the caveat of Lord Hoffman and of the learning which emerged from all

the authorities that great weight should be given to the discretion of the executive. In the

matter before me, the executive was confronted with a crisis that was claiming the lives of

many citizens. Every murder clearly had a domino effect on the peace and stability of

families, which comprise the units of the nation.

117. The strong measures provided by the Regulations were also tempered by checks and

balances to ensure that there would be no arbitrary and unnecessary detention. Accordingly,

by Regulation 16 (3), no person could be detained beyond 24 hours, except with the authority

of a magistrate or a police officer, not below the rank of Assistant Superintendent. Even with

the authority of the Magistrate or the Senior Police Officer, detention could not be authorized

beyond seven (7) days unless the Magistrate of Senior Police Officer is satisfied that enquires

could not be completed within 24 hours. In my view, it is clear that the question of whether

or not the officer is satisfied could be subject to judicial review.

64 See Regulations 16

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118. Similarly, the prohibition against the Writ of Habeas Corpus is not automatic and all

encompassing. It pertains in a specific situation where a person is denied bail, by a Magistrate

that is to say where a person is detained under the Regulations or where a person is likely to

engage in or to incite persons to breach the peace.

119. It is therefore my view, that the strong measures prescribed by the Emergency Powers were

adequately balanced by the gravity of the crisis, which the national community faced and by

the measures, prescribed in the Regulations for protection the rights detained persons. It is

therefore my view, and I hold that the Claimant failed to discharge the burden of proving

that the Regulations were “not to be reasonably justifiable” for the purpose of dealing with

the situation which existed in August 2011.

120. My view was not changed by the consideration that the 2011 Regulations were substantially

the same as those which had been published in 1970 and 1990. The evidence before the Court

suggests the memory of the 1990 events informed the decision of Cabinet to act cautiously

and to declare a state of emergency. While it is clear that the cause of the crisis of 1970 and

1990 were different from that which underlay the state of emergency in 2011, the result of

widespread and serious threat to public safety was the same.

Decision as to whether there was compliance with the Regulations

121. In the further alternative, the Claimant has contended that his fundamental rights were

infringed in the implementation of section 16 (1) of the Regulations, in that in each case, the

arresting officer had not been invested with the suspicion required by the Regulations, which

empower a police officer to “arrest without a warrant any person who he suspects has acted

or is acting in a manner prejudice to public safety…”

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122. The Court is guided by the case of McKee v. Chief Constable of Northern Ireland65, where

their Lordships held that a subordinate officer may derive his suspicion from a superior

officer, and that the arresting officer need not have a reasonable suspicion, as long as his

suspicion is honest.

123. The Claimant Earl Elie was arrested by ASP Ramdhanie who acted on the instructions of

his superior officer, DCP Mervyn Richardson. ASP Ramdhanie knew only that the arrest

was pursuant to the Emergency Powers Regulations 2011.

124. ASP Ramdhanie fell short of providing any evidence of an honestly held suspicion.

According to their Lordships in McKee supra, the relevant factor is the state of mind of the

arresting officer, who ought to hold an honest suspicion. The burden is also carried by the

arresting officer to justify the arrest. It seems to me that it is incumbent on the arresting

officer to provide evidence that he held a suspicion that was honest. ASP Ramdhanie failed

to provide such evidence. He had no suspicion that Mr Elie was guilty of anything. He was

simply acting on instructions. Accordingly, it was my view and I held that ASP Ramdhanie

lacked the requisite suspicion and was not protected by Regulations 16.

125. I considered whether Regulation 6 of the Regulations prevented the Claimant from

recovering compensation for the breach of Regulation 6.

126. Regulation 6 provides:

“6. No person shall be liable to any suit or action in respect of

any act done under lawful direction and authority pursuant to

the provisions of these Regulations but the President may in his

discretion order that compensation shall be paid out of the public funds

65 McKee v. Chief Constable of Northern Ireland [1984] 1 WLR 1358

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to any person upon being satisfied that such person has suffered loss or damage by

reason of the exercise of any powers conferred by regulation 3, other than

subregulation (2)(j) thereof and regulation 4.”

127. In my view, Regulation 6 does not protect ASP Ramdhanie, who had not satisfied the Court

that he acted lawfully and had not proved that he held a suspicion as required by Regulation

16. Moreover, this Claim was not directed at ASP Ramdhanie, but being an action under s.

14 of the Constitution66, it was instituted against the State, as represented by the Attorney

General.

128. Finally, the Claimant contends that he had been denied the opportunity to consult a legal

advisor. The fundamental right of an arrested person to communicate with his legal advisor,

as entrenched by section 5 (2)(c) (ii) of the Constitution67 and by their Lordships in

Thornhill v. Attorney General68, had not been suspended by the Regulations. It was in my

view, wrong of the arresting officer, as well as the interviewing officer, to deny the Claimant

an opportunity to consult his legal advisor69.

129. It follows that there ought to be judgment for the Claimant Earl Elie. It is my view and I hold

that he suffered a contravention of his right to liberty pursuant to section 4(a) of the

Constitution70 and his right to retain and instruct without delay, a legal adviser of his choice

upon arrest pursuant to section 5(2)(c)(ii) of the Constitution71.

66 Ch 1:01 67 Ch 1:01 68 Thornhill v. Attorney General [1981] AC 61 69 This was done for the Claimant Dominic Pitilal but not for Ashmeed Mohammed 70 Ch 1:01 71 Ch 1:01

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Damages

130. Any discussion on compensation in constitutional claims must begin with Maharaj v.

Attorney General No. 2 (1978) 30 WIR 350. In particular, paragraph 321, where Lord

Diplock provided this road map:

“Finally their Lordships would say something about the measure of

monetary compensation recoverable under s6 where the contravention of

the Claimant’s constitutional right consists of deprivation of liberty

otherwise than by due process of law. The claim in not a claim in private

law for damages for the tort of false imprisonment (under which the

damages recoverable are at lard and would include damages for of

reputation). It is a claim in public law for compensation for deprivation of

liberty alone. Such compensation would include any loss of earnings

consequent on the imprisonment and recompense for the inconvenience

and distress suffered by the Appellant during his incarceration.”

131. Many years later, in Naidike v. The Attorney General72, Justice of Appeal Mendonca,

compared compensation in constitutional cases with damages recoverable in tort. Justice

Mendonca JA said:

“58. As mentioned, the comparable common law measure of damages will often be

a useful guide in assessing the amount of compensation. Here the comparable

common law measure of damages is with respect to the tort of false imprisonment.

59. In an award of damages for false imprisonment the principal heads of damage

(not including pecuniary loss) are injury to liberty, injury to feelings i.e. the

72 Naidike v. The Attorney General Civil Appeal No. 86 of 2007

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indignity, mental suffering, disgrace and humiliation with any attendant loss of

social status and injury to reputation. In addition there may be recovery for any

resulting physical injury, illness or discomfort (see McGregor on Damages (17th

ed.) at paras 37 007-009).”73

132. Learned JA Mendonca, went on to say:

“84. As I have mentioned the comparable common law measure of damages is a

useful guide but it is no more than a guide. The wholesale transplanting of the

common law measure of damages and the strict application of common law

principles to the assessment of compensation for an infringement of a constitutional

right will not always be appropriate and the Court is certainly not bound by them.

I, however, find that in this case, the heads of damage in the common law tort of

false imprisonment are all relevant factors to be taken into account in this case, so

that loss of liberty and injury to feelings, (which I do not think conveys anything

different from distress and inconvenience) are relevant and so too injury to

reputation. Of course, injury to reputation will need to be assessed in the context

of distress and inconvenience”.74

133. With regard to the breach of a right to be informed of reasons for arrest and to instruct a legal

advisor, learned Senior cited the case of Thadeus Clement v. Attorney General wherein the

aggravating factors to be taken into consideration in the assessment of damages was

considered. Justice of Appeal Jamadar in the course of his judgment, stated:

73 Ibid at paragraphs 58 and 59 74 Ibid at paragraph 84

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“33. In this matter the Appellant was clearly subjected to oppressive,

arbitrary and unconstitutional action by the police. Instances of this are as

follows:

(i) The threats issued to the Appellant resulting in him signing a

document at the San Fernando Police Station.

(ii) The failure or refusal to promptly advise or inform the Appellant of

his right to consult and retain a legal advisor upon detention and

arrest.

(iii) The failure to attempt to verify the Appellant’s explanations which

could have exonerated him from suspicion and avoided the

prosecution.

(iv) The continued prosecution of the Appellant for two and one-half

years in circumstances where the virtual complainant never

attended court and the prosecution was never ready proceed.

134. Numerous authorities were cited in relation to damages that ought to be awarded in this case.

Learned Senior, cited a former decision of this court, that is, the case Jennelyn Guerra v.

The Attorney General HCA No.1717/01. In that case, the sum of One Hundred and Eleven

Thousand Dollars ($110,000.00) was awarded to the Claimant. The Claimant in Guerra was

detained for a period of seven (7) days contrary to her right to liberty.

135. Of importance is the case Alphie Subiah v. The Attorney General75. This was a matter heard

by the Privy Council. The Board reinstated the master’s award of $80,000.00 in

75 PC No. 39 of 2007

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compensatory damages where the Claimant had been unlawfully detained for a period of

over seven hours. The Board stated:

“The Court of Appeal unanimously concluded that on a purely

compensatory basis the appellant was entitled to $45,000.00. the Board is

inclined to wonder, given the passage of time and changes in value of money

since some of the earlier precedents relied on, whether the level of

compensatory damages may call for upwards revision by the Courts of

Trinidad and Tobago. But the Board has always deferred to the superior

knowledge and experience of local courts in assessing the level of damages.

136. The recent decision of Anthony Boney v. Attorney General of Trinidad and Tobago76 was

also cited. This was a judgment delivered by Justice Kokaram who awarded $70,000.00 in

April, 2017 for unlawful detention. This was a matter which also arose out of the State of

Emergency in the year 2011. The Claimant was arrested on the 29th November, 2017 and

was detained for a period of seven (7) days from until his release on the 5th December.

137. In the instant claim, Learned Senior, Mr. Martineau, submitted that there were no

aggravating factors in the instant case. Taking into consideration, all circumstances of this

case, Mr. Martineau S.C. submitted that an award of $100,000.00 was appropriate. Learned

Senior stated further, that there was insufficient evidence of aggravated circumstances or

sufficient need to give an additional award. In the alternative, it was submitted that in the

event the Court did not agree with the submissions on an additional award, a sum of

$15,000.00 was submitted to be appropriate.

76 Anthony Boney v. Attorney General of Trinidad and Tobago CV2015-04084

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138. Accordingly, the detention of the Claimant could be divided into two parts: his detention of

seven (7) days prior to the detention order of the Minister and his detention between the 30th

November, 2011 and 5th December, 2011, following the order of the Minister. In my view,

the illegality of his arrest was cured by the detention order of the Minister. Accordingly, Mr.

Elie would be entitled to be compensated for the first seven (7) days of his detention.

139. I am guided by their Lordships in Alphie Subiah that the Court is concerned to award

appropriate compensation. In all the circumstances, I am of the view that $100,000.00 would

be a just award. I will not grant vindicatory compensation since I am of the view that the

arresting officer was acting in good faith, in the exercise of very serious public duties.

140. Compensation for denying access to a legal advisor is awarded in the sum of $50,000.0077.

Dated this 19th day of December, 2017.

M. Dean-Armorer

Judge

77 The Court’s Draft Order is hereto annexed and marked “A”.

“A”

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2015-00892

BETWEEN

EARL ELIE

Claimant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Defendant

DRAFT ORDER

Before the Honourable Madame Justice Mira Dean-Armorer

Dated the 1st December, 2017

IT IS ORDERED that:

1. A declaration that the arrest of the Claimant under Regulation 16(1) of the Emergency

Powers Regulations 2011 on 23 November 2011, his continued detention without charge

until 29 November 2011 authorized by a Deputy Commissioner of Police under Regulation

16(3), were unlawful and in breach of the Claimant’s rights under sections 4(a), 5(2)(a)

and 5(2)(c)(iii) and (iv) of the Constitution.

2. A declaration pursuant to section 14(1) of the Constitution that in denying the Claimant

access to a legal adviser upon his arrest on the 23rd November, 2011, the Defendant

contravened his rights pursuant to sections 5(2)(c)(i) and (ii) of the Constitution.

3. The Defendant to pay to the Claimant, compensation in the sum of One Hundred and Fifty

Thousand Dollars ($150,000.00).

4. Costs to be quantified by the Registrar of the Supreme Court on a date to be fixed by the

Registrar of the Supreme Court.

………………………………

Assistant Registrar

Supreme Court

TO: Nyala Badal

Attorney-at-Law

MESSRS. RLM & CO

NO. 15 IRVING STREET (NORTH)

SAN FERNANDO.

TO: Javier Forrester

Attorney-at-Law

CABILDO CHAMBERS

23-27 ST. VINCENT STREET,

PORT OF SPAIN

in the high court of justice cv 2015-00892 earl elie the...

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