claim no. cv2018-02726 in the matter of the...

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REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV2018-02726

IN THE MATTER OF THE CONSTITUTION OF TRINIDAD AND TOBAGO

AND

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 14 OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO ALLEGING THAT THE PROVISIONS OF THE SECTION

4 THEREOF HAVE BEEN, ARE BEING, AND ARE LIKELY TO BE ABROGATED ABRIDGED OR INFRINGED

AND

IN THE MATTER OF SECTION 15 (1) A OF THE LEGAL PROFESSION ACT CHAPTER 90:03

BETWEEN

DIANNE JHAMILLY HADEED

Claimant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant

THE LAW ASSOCIATION OF TRINIDAD AND TOBAGO

First Interested Party

THE REGISTRAR OF THE SUPREME COURT OF TRINIDAD AND TOBAGO

Second Interested Party Before the Honourable Mr. Justice V. Kokaram

Date of Delivery: Thursday 25 July 2019

Appearances:

Mr. Christopher R. Rodriguez, Ms. Raisa Ceasar, Ms. Sparkle Kirk instructed by Mr. David R. Francis, Attorneys at Law for the Claimant.

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Mr. Fyard Hosein S.C. leads Ms. Rachel Thurab and Mr. Roshan Ramcharitar instructed by Ms. Laura Persad and Ms. Khadine Matthews Attorneys at Law for the Defendant. Mrs. Deborah Peake S.C. leads Mr. Ravi Heffes-Doon and Ms. Tamara Toolsie instructed by Ms. Kerlene Alfonso, Attorneys at Law for the First Interested Party. Mr. Ian L. Benjamin S.C. leads Mr. Pierre A. Rudder instructed by Ms. Michelle Benjamin and Mr. Ryan Grant Attorneys at law for the Second Interested Party.

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JUDGMENT

TABLE OF CONTENTS Page No Introduction 4 Part I- Factual and Legislative Backdrop 11 Ms. Hadeed’s stalled journey to admissions 12 The General Scheme of Admissions to Practise Law in T&T 17 A Caribbean Context- The RTC and the Immigration 38 (Caribbean Skilled Nationals) Act Part II- Constitutional Interpretation 44 “Who am I”- Origin and Nationality: A core feature of identity 44 Literal Meaning 54 Context and Structure 55 Jurisprudence 55 Sociological Factors: Who is this St. Lucian? 57 Developing Norms and International Sources 61 Part III- Inequality and Discrimination 68 Suitable Comparators 82 Legitimacy and the Proportionality Test 86 The Limitation on Rights is Disproportionate and Illegitimate 89 Shut Out Laws and Multiple Pathways 95 Protection of the Law 98 Right to Liberty and Enjoyment of Property 101 Legitimate Expectations 104 Part IV- Remedy 107 Damages 108 Declarations, Severance and Modification 112 A Therapeutic Solution 119 Conclusion 122

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INTRODUCTION

“Prospero, you are the master of illusion.

Lying is your trademark.

And you have lied so much to me

(Lied about the world, lied about me)

That you have ended by imposing on me

An image of myself.

Underdeveloped, you brand me, inferior,

That’s the way you have forced me to see myself

I detest that image! What’s more, it’s a lie!

But now I know you, you old cancer,

And I know myself as well.”

― Aimé Césaire, Une Tempête1

1. This constitutional claim2 serves to test our notions of identity, nationality and self.

Emerging from a turbulent colonial past, the “peoples” of the Caribbean have struggled to

forge a new identity and new image of “self” as independent States sharing at the same

time the common goal of regional integration. Having liberated ourselves from our

“European Prosperos” we find ourselves, “Calibans” a unique people, an eclectic mix of

races, “in a shared genetic confusion, common products of a ‘complex womb’ of history”3,

now trying to assimilate yet another identity transcending nationalism to regionalism. When

it comes to building regional projects such as a Caribbean legal profession, can the assertion

of a “Trinbagonian” identity justifiably trump the requirements of a regional construct? This

underlies the main question in this constitutional motion: Is section 15(1A) of the Legal

Profession Act Chapter 90:03 (LPA) which treats other (CARICOM) nationals differently by

restricting their admission to practise law, discriminatory or reasonably justifiable?

1 “Une Tempête” is a 1969 adaptation of William Shakespeare’s “The Tempest” from a post-colonial perspective. The play was written by Aimé Césaire who was a French poet, author and politician from Martinique. 2 By Fixed Date Claim Form and Affidavit in Support filed 26th July 2018. 3 “Ethnicity and Identity in the Caribbean: Decentering a Myth”, Ralph R. Premdas (1996)

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2. The task of interpretation of our constitutional human rights and freedoms which

guarantees fundamental human rights irrespective of race, colour, sex, religion or origin, is

itself a continuous interrogation of our identity. A Constitution which has served the past

and must serve the present and future generations, involves the Court engaging in a

dialogue with contemporary and evolving standards, norms and values that shape our

society and common humanity. Our identity is shaped by unique cultural social experiences

personal to oneself and not imposed by the perception and categorisation of others. What

is our Trinidad and Tobagonian society? What are our aspirations? What standards of

conduct should we ascribe in shaping our democratic State? The answer frequently is found

by reference to our preamble of our Constitution4. It can be found in our history, our

sociology, our philosophy. What society do we envision when we proudly declare “Here

every creed and race find an equal place”? Constitutional interpretation of human rights is a

task of defining ourselves through our own reflection on the dignity of the human person

and the equal and inalienable rights of the human family, regardless of our personal

idiosyncrasies or background. Is this a Trinidad and Tobago for all or some?

3. For the Claimant, Ms. Dianne Jhamilly Hadeed, a “CARICOM5 national6”, identity is at the

heart of her claim in this constitutional motion. Her claim is that she is being deprived of an

opportunity to practise law in Trinidad and Tobago based on a restriction against non-

nationals prescribed in section 15(1A) of the LPA. By that section, despite her having the

required qualifications to be admitted to practise law in this jurisdiction only, a line has

been drawn by Parliament between nationals entitled to access this section 15(1A) pathway

and “other” non-nationals, in her case, a St. Lucian of Grenadian birth who are not.

4. In her claim for constitutional relief she seeks declarations that section 15(1A) of the LPA

breaches her fundamental rights of liberty and property, equality before the law and equal

treatment by public authorities under sections 4(a), (b) and (d) of the Constitution of

Trinidad and Tobago. To the extent that section 15(1A) applies and confers a benefit on

4 The Constitution of the Republic of Trinidad and Tobago 5 The Caribbean Community 6 Ms. Hadeed is a national of Grenada and St. Lucia

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nationals of Trinidad and Tobago only and has the effect of depriving her by reason of her

origin, of those constitutional rights enshrined she contends it is null, void and of no effect.

She claims that the decision of the Registrar of the Supreme Court (the Registrar) made by

way of letter dated 10th April, 2018, that she is ineligible to apply for admission to practise

law pursuant to section 15 (1A) is also unconstitutional, null, void and of no effect and that

she has been deprived of her legitimate expectation to be admitted to practise as an

Attorney-at-Law in Trinidad and Tobago. By way of remedies, she also seeks damages and

an order modifying section 15(1A) of the LPA so that its provisions apply to “any person” or

“CARICOM nationals” and not just “nationals” of Trinidad and Tobago.

5. Although section 15(1A) of the LPA impedes a pathway to her being admitted to practise

law on the basis that she is not a national of this country, there are alternative pathways to

admission available to Ms. Hadeed under other provisions of section 15 of the LPA. A main

condition of those alternative paths is obtaining a Legal Educational Certificate (LEC) after a

period of institutional teaching. Indeed, those pathways7 are consistent with CARICOM’s

goal of creating an indigenous legal practice to serve the needs of the Caribbean and fulfils

the regional agreement for legal education8. To the extent to which that agreement is part

of our law by incorporation in the Council of Legal Education Act Chapter 39:50 (the CLE

Act), no person, without holding that LEC, can practise law in this jurisdiction as indeed in

any other CARICOM State. However, in clear breach of this law, a much shorter side route

has been carved out by Parliament in section 15(1A) of the LPA exclusively for the benefit of

nationals of Trinidad and Tobago to be admitted to practise law on obtaining certain

qualifications, without the requirement of the LEC and which is not recognised by the

regional agreement for legal education. Non-nationals remain without that benefit and

must undertake the additional burden on the other available pathways to admissions.

6. This constitutional motion is about constitutional interpretation, dialectic, identity and

legitimacy. It explores specifically the social grouping of “nationality” and asks the question,

is it legitimate in this case to draw artificial lines between persons of different nationalities

7 Section 15 of the Legal Profession Act Chapter 90:03 8 The Agreement establishing the Council of Legal Education

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conferring benefits on nationals to the detriment of (CARICOM) non-nationals. It explores a

deeper question of the meaning of “origin”9 and whether it can include “nationality” as an

immutable characteristic of our identity. Even further, if there must be this differentiation,

is there a reasonable justification for it.

7. Ms. Hadeed resides here. She holds a CARICOM skills certificate and is entitled to work here

indefinitely. She is guaranteed by the Immigration (Caribbean Community Skilled Nationals)

Act Chapter 18:03 that despite her nationality and origin she will not be subject to any

restriction on the right to engage in gainful occupation on the basis of her nationality or

origin. She holds the same qualification as those other nationals who can access the section

15(1A) pathway. In those circumstances she asks why should her St Lucian nationality or

Grenadian origin be the distinguishing feature to deprive her of access to the section 15(1A)

side route? Should she not be treated on merit regardless of her origin? In refusing to admit

this CARICOM national on this pathway, implicitly there is the discriminating assertion “you

are not one of us”, “you do not deserve this benefit”. In fact, you are only entitled to this

benefit on this pathway (and contribute to our society) if you “become one of us” and

change your identity.

8. The short answer by the Defendant is that section 15(1A), despite the fact that it is in

breach of this country’s regional commitment and breach of the law, is a measure that is

objectively and reasonably justifiable as it serves the national interests to afford

preferential treatment to its own nationals to pursue the legitimate objective and purpose

of building a cadre of lawyers for Trinidad and Tobago. If that is true, then either there is no

sanctity in our country’s regional commitments or there should be no impediment for a St

Lucian to contribute to such a noble enterprise. The Defendant also contends that in the

context of her present qualification and the scheme for admission to practise law, there is

no bar to Ms. Hadeed from using another route to be admitted. Of course, the other routes

are the legitimate routes recognised by the regional agreement and by extension, it means

the illegitimacy of the section 15(1A) route is reserved for Trinidad and Tobago nationals

only.

9 Used in section 4 of the Constitution of the Republic of Trinidad and Tobago

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9. There are no doubt legitimate interests to be served for nationals to develop our own State,

our own pool of resources of local attorneys. There is a case to be made for nationals

choosing the pathway of the legal profession as their career destination of choice. The

expense that they will bear, the limited spaces at the established law school and the

frustration that may be faced by being unable to enter into the law school to obtain the

qualifications recognised by law to contribute to our society in legal services have fuelled

the need to create a new pathway. But it is a frustration shared across the region. There is

absolutely nothing wrong to use a legitimate purpose of giving to nationals the opportunity

to advance themselves and their careers to provide alternative routes to fulfil their lifelong

dream. This too enhances their dignity and self-worth. Should it be though at the expense

of another class or group of nationals? Why is the value of the contribution of nationals to

the provision of legal services in this country superior to non-nationals? Is there legitimacy

in the distinction? If there are strong reasons for alternative pathways to deal with the

demands to become an attorney, what difference does it make if you are St Lucian or

Trinidadian? Why create additional burdens for one class and remove barriers for another?

10. In creating a purely insular pathway it creates a tension between the needs of one group

over that of another. The task of this Court is to interrogate this tension and as far as

possible reconcile these competing rights consistent with the full force of fundamental

human rights in a modern and developing society.

11. In the democratic society to which we aspire, patterned to our Constitution’s preamble,

there ought to be no room for superior groups, subgrouping and discrimination on the basis

of origin or where you are from or what nation to which you belong. Indeed, the question of

origin for the West Indian or the Caribbean people may well be moot. Our Caribbean people

can hardly easily draw lines to exclude each other from participating in the other’s

development. No Caribbean person having regard to our shared social and cultural roots,

can truly deny another of their own claim to a common space. There is something worth

protecting, an inherent dignity and pride when we can accept the opaqueness of the other

to see and accept the other, make transparent artificial social barriers, be it of nationality or

national or social or racial origin. Where do you belong if not in a community of humans

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collectively enjoined in the collective development of a nation and if not a region? This must

have been the underpinning of the CLE agreement and the creation of an indigenous legal

profession. Which other but our enlightened society should lead the way in liberating us

from a culture of insularity.

12. We have developed our own cultural and historic abhorrence of discrimination. We have

been bred and come from a place where we were seen by our Prospero as the inferior

classes, race and colour. Inferiority complexes are also created by nationality…“you are a

small islander” or “a non-belonger”. For our society and in the Caribbean, that distinction

and unjustified differentiation is untenable, a stumbling block to progress, a parochial

insularity missing the larger picture of supply and demand. If such parochial interests are to

survive there must and there should be sound policy reason and reasonable justification to

do so.

13. In giving life to our beliefs in our constitutional rights and freedoms measured against these

evolving demands of our community, section 15(1A) which discriminates against non-

nationals should not continue to be a part of our social and legal framework. A person’s

nationality is an important sense of that person’s dignity. Such a law has not pursued a

legitimate object and not reasonably justifiable.

14. In my view, for the reasons set out in this judgment, Ms. Hadeed’s main complaint of

unlawful discrimination has been made out: she has properly identified a comparator group

of persons who possess the academic qualification entitled to avail themselves of the

section 15(1A) route save for the distinguishing feature of her nationality. The main pool of

persons entitled to the section 15(1A) pathway are those persons who would have the legal

qualifications but the line of demarcation distinguishing her from the other groups is her

nationality. The law is discriminatory in nature.

15. Her identification as part of a different group of persons as non-nationals was the reason

for the difference in treatment and gives rise to discrimination. The only objective and

legitimate reason advanced for treating her in this way is that it pursues the interests of

nationals and the legislature only countenanced a minor breach of the CLE Agreement.

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Equality of treatment is an important aspect of the rule of law. Any objective, justifiable or

proportionate reason for a difference in treatment cannot include a breach of the law. It

was an ill-advised step and cannot legitimately be the reason to limit a benefit to a class or

group. It is as if there was no reason at all.

16. The underlying premise of the Defendant’s submission is that because you are not a

Trinbagonian, we should treat you differently. This alone cannot be a safe nor useful

general principle upon which our society can allow to perpetuate, given the context of our

history, traditions and aspirations.

17. Further and in any event, although not necessary to determine this claim, I am also of the

view that to discriminate on the grounds of nationality strikes at a person’s identity, their

sense of pride of belonging to a certain group and relationship, an idiosyncrasy and a

charter of someone that cannot be easily changed, it is indeed discrimination on the basis of

one’s “origin” for which intense scrutiny is applied on the State to justify its action. To base

its reason on the fact that there is another route diverts from the essence of illegitimacy in

the course it adopted and makes it no better.

18. In this judgment the following issues arise for determination:

(a) Whether the general prohibition of discrimination set out in section 4 of the

Constitution on the ground of “origin” includes “nationality”;

(b) If it does not, is discrimination on the ground of nationality equally a personal

characteristic or feature of an identity though not specifically provided for in the

general prohibition;

(c) What is the relevant test to determine whether section 15(1A) of the LPA is a breach

of the right to equality before the law and equality of treatment;

(d) Has the Claimant discharged the burden of establishing a suitable comparator to

establish a difference in treatment which is discriminatory;

(e) If so, has the State demonstrated a reasonably legitimate and proportionate reason

to justify the difference in treatment;

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(f) Has the Claimant demonstrated a breach of the right to the protection of the law,

liberty and property;

(g) If section 15(1A) is unconstitutional, what are the suitable remedies for the

Claimant: declaratory relief and/or repeal/ or modification and/or damages.

19. In this claim the Law Association of Trinidad and Tobago (LATT) and the Registrar were

joined as Interested Parties. I wish to thank the legal teams for the parties for their

comprehensive and useful written submissions on these issues and engaging oral

submissions of Senior Counsels and Counsels. They are to be commended for their industry

and diligence in the preparation of this case10. In addressing these issues I have structured

this judgment in four parts: First: The factual and legislative background setting out the

main facts which are not in dispute and the legislative context of section 15(1A) of the LPA.

Importantly, I examine the legislative purpose of the general scheme of admissions as an

indigenous and home grown Caribbean system of legal education. Second: An examination

of our indigenous principles of constitutional interpretation to place the question of

nationality in its correct constitutional linguistic status in the analysis of discrimination and

inequality of treatment under the Constitution. Third: The Constitutional Rights: “First

Generation Rights”: Equality of Treatment, the importance of comparators, difference in

treatment justification, the right to liberty and the proportionality test; Second Generation

Rights: The Right to work; then Due process and Legitimate Expectations. Fourth: The

appropriate remedies of declaratory relief, damages and the question of the future of

section 15(1A): severance, modification or repeal?

PART 1: FACTUAL AND LEGISLATIVE BACKDROP

“These purists look on such ceremonies as grammarians look at a dialect, as cities look on

provinces and empires on their colonies. Memory that yearns to join the centre, a limb

remembering the body from which it has been severed, like those bamboo thighs of the

god. In other words, the way that the Caribbean is still looked at, illegitimate, rootless,

10 Claimant’s submissions filed 15th April, 2019, Defendant submissions filed 17th June, 2019 Second Interest Party submissions filed 15th May, 2019, Submissions of the First Interested Party filed 15th May, 2019, Claimant’s submissions in reply filed 28th June 2019

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mongrelized. “No people there”, to quote Froude, “in the true sense of the word”. No

people. Fragments and echoes of real people, unoriginal and broken.”-Sir Derek Walcott11

Ms. Hadeed’s Stalled Journey to Admissions

20. The main facts are not in dispute. Ms. Hadeed is a Grenadian. She also holds St. Lucian

citizenship. She has been living in Trinidad and Tobago since 2012 and is desirous of

pursuing a legal career. She completed her Bachelor of Laws (LLB) degree from the

University of London in 2015 through an external degree programme administered by K.

Beckles and Associates Law Tutors and the Institute of Law and Academic Studies

respectively both in Trinidad and the Legal Practice Course (LPC) in 2017 at the University of

Law in London. In April 2017, she was granted a Certificate of Recognition of Caribbean

Community Skills Qualification by the Government of Trinidad and Tobago under section 3

of the Immigration (Caribbean Community Skilled Nationals) Act.

21. She commenced a six (6) month attachment at a law firm, Robin Montano and Co with a

Head of Chambers of an Attorney-at-Law of not less than ten (10) years standing on 19th

May, 2017. On 29th September, 2017, she sent her first Notice of Intention to apply for

Admission to Practice as an Attorney at Law of the Supreme Court of Judicature of Trinidad

and Tobago. She received an email from the Assistant Registrar and Deputy Marshal on 12th

October, 2017 congratulating her on her accomplishments and informing her that General

Admission would be held on 10th November, 2017. These guidelines are usually given by the

Registrar upon filing the Notice of Intention. She subsequently received another email from

the Assistant Registrar attaching the guidelines to be observed with respect to the Court

Sitting for November 2017. However, as her six (6) month pupillage was not yet completed

she was ineligible to be admitted to practice and missed the November 2017 ceremony. On

28th November, 2017, she was informed by the Assistant Registrar that she should re-file

her Notice of Intention and she was referred to another Assistant Registrar to assist in

further queries with respect to her admissions.

11 The Antilles: Fragments of Epic Memory. Sir Derek Alton Walcott was a St. Lucian poet and playwright. He spent time in Jamaica and Grenada. He spent a considerable amount of time in Trinidad and founded the Trinidad Theatre Workshop. He is described by some as a “St Lucian born Trinidadian”. In 1992 he received the Nobel Prize in Literature. His notable works include Omeros (1990) and Dream on Monkey Mountain (1910).

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22. She eventually completed her six (6) month attachment at Montano & Co in December

2017 and she filed her Notice of Intention to apply for admission to practise law in Trinidad

and Tobago on 31st January, 2018. Her name was placed on the notice board next to the

Civil Registry in the Hall of Justice along with the names of the other intended Applicants. In

order for the Registrar to make a report to the High Court as to the fitness of any applicant

for admission to practise as an attorney-at-law, the Registrar notifies prospective applicants

who have filed Notices of Intention of the intended date for admission and advises them to

submit their draft petitions together with all of their original documents for the purpose of

vetting and certifying same.

23. In the interim on 9th March 2018, Ms. Hadeed had an interview with the LATT for the issue

of the Certificate of Fitness.12 She was informed by Ms. Anais Hinds, an administrative

intern with the LATT that she would receive her Certificate of Fitness in ten (10) working

days. On 17th March 2018, she ordered her attorney’s robe, collerette and bag.

24. On 26th March 2018 she received an email from the Assistant Registrar congratulating her

on her accomplishments and informing her that special admissions would be held on 11th

May, 2018. After receiving the email, she conveyed the news to her family and friends.

However, her application for admission had not yet been vetted by the Registrar. The email

sent by the Registrar was a generic one to all petitioners congratulating them on their

academic accomplishments and informing them of the date for Special Admissions. They

were advised to submit their draft petitions together with their original documents for the

purpose of vetting and certifying same. It was indicated that the Assistant Registrar will

begin to vet draft petitions on 4th April 2018 and that neither she nor her presenter should

sign the documents nor should she take her documents before a Commissioner of Affidavits

before first obtaining approval from the Assistant Registrar. As the Registrar had not yet

vetted the petition it stands to reason that any congratulations stated in this email was with

respect of her accomplishments of completing her academic qualifications together with all

the other applicants. There was certainly no promise nor certainty that she would in fact be

12 See section 15(1)(b) of the Legal Profession Act Chapter 90:03 which states that a person who makes application to be admitted to practise must satisfy the Court that he is of good character.

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admitted to practise.

25. On 28th March 2018, she received an email from Mrs. Oliverie-Stuart informing her that it

was brought to her attention by the LATT that she, as well as some other applicants, were

non-nationals and that her documents regarding nationality should be brought in and

verified. She responded enquiring whether it also presented a challenge to her since she is a

CARICOM national under section 15 of the LPA. The LATT subsequently informed her that

she would not be receiving a Certificate of Fitness unless she could show proof of Trinidad

and Tobago nationality and that her application did not meet the qualification for a

Certificate of Fitness since she is not a national of Trinidad and Tobago.

26. Mrs. Oliverie-Stuart responded by email on 29th March 2018 informing her that section

15(1A) of the LPA relates only to nationals of Trinidad and Tobago and if she is unable to

prove same, she cannot be admitted to practice with the LPC qualification and a six (6)

month attachment. She invited Ms. Hadeed to meet with her and to bring her documents

but Ms. Hadeed did not make an appointment to meet with her.

27. On 6th April 2018, she received an email from Mrs. Oliverie-Stuart concerning the vetting of

petitions for the 11th May 2018 ceremony. On 9th April 2018, she visited the Hall of Justice

to vet her documents but again was informed that she would need to show proof that she is

a national of Trinidad and Tobago.

28. On 5th April 2018 Mr. Robin Montano raised the issue of the refusal to admit Ms. Hadeed to

practise. He indicated that on 6th July 2017, he sent a written formal notification to the LATT

that Ms. Hadeed would be commencing her six month attachment at his chamber and

throughout Ms. Hadeed’s six month attachment she was never informed that she could not

complete the attachment because she was a non-national. He submitted that it was

discriminatory that some non-nationals who hold the LPC and completed their six month

attachment were able to be called to the Bar in Trinidad and Tobago while other CARICOM

nationals with identical qualifications cannot. Ms. Hadeed personally knew a non-national

attorney who also had the LPC and completed her attachment and was successfully called

to the bar. He argued that a precedent was set by the LATT and it is for the High Court and

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not the Registrar to decide whether Ms. Hadeed is eligible to be admitted to the Bar in

Trinidad and Tobago and it would not be in the interest of the profession if the decision to

refuse Ms. Hadeed’s admission had to be judicially reviewed.

29. The Registrar responded by letter dated 10th April, 2018 stating that she was unaware of

any previous occasions where a non-national had been admitted to practice in Trinidad and

Tobago having obtained the LPC along with a six (6) month attachment and if it did occur, it

cannot constitute a precedent. Pursuant to section 15(2) of the LPA it was within her

purview as the Registrar to determine whether a person has met the conditions for

admission and then report to the Court. Ms. Hadeed did not fulfil the conditions for

admission based on the information she provided. The effect of the provisions of the LPA

and the CLE Act is that the Claimant as a CARICOM national can only be admitted to practise

in Trinidad and Tobago if she has a LEC. As admissions under section 15(1A) of the LPA is

limited to nationals of Trinidad and Tobago only, as Registrar, she is bound by the provisions

of the LPA. Ms. Hadeed was free to provide the Registrar with proof of her qualifications or

nationality so as to qualify for admission and it was not the Registrar’s intention to create

any artificial obstacles to Ms. Hadeed’s admission but to ensure that there is compliance

with the law.

30. The Assistant Registrar subsequently revealed in her affidavit in response that she checked

the records of the Registrar’s office and can confirm that the persons mentioned by Ms.

Hadeed did have their petitions vetted and approved by past Assistant Registrars and were

admitted to practice in Trinidad and Tobago with the LPC qualification despite being non-

nationals. However, these were done in error and without full compliance with the law and

did not conform to the usual practice of the Registrar’s department with respect to the

vetting of such petitions.

31. Ms. Theresa Hadad, Treasurer of the LATT, contends that Ms. Hadeed has not identified any

person from the LATT who is alleged to have instructed her that she should complete a six

(6) month attachment at a law firm but in any event, no employee of the LATT has the

authority to instruct any person to complete such an attachment. She further contends that

Ms. Hinds is an administrative intern with the LATT and has no authority to make any

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representations or promises on behalf of the LATT. It appears no pre-action letter was

issued by Ms. Hadeed before bringing her claim.

32. She has lost and has been deprived of the opportunity to work and earn as an attorney at

law and engage in her desired skill, calling and profession. She contends that she relied

upon the correspondence received from the Registrar such as the congratulatory emails and

prepared herself to be admitted to the Bar but was embarrassed by the rejection of her

application.

33. She states that she felt depressed and was worried about engaging with her family after the

financial costs expended on her education. She was forced to move from her apartment

since she could no longer afford to stay in the apartment which her father assisted her in

renting during her six (6) month attachment. She is now responsible for her own

accommodation in Trinidad and Tobago.

34. Ms. Hadeed’s simple case is that she is alike to all other candidates seeking admission under

section 15(1A) by meeting the qualifying requirements of that section 15(1A) save for the

discriminating factor of being a non-national. As a CARICOM national she contends that she

should be treated equally as any Trinidad and Tobago attempting to be admitted pursuant

to section 15(1A). The burden is now for the State to show reasonableness, objective

purposefulness and justification of section 15(1A).

35. The Registrar and the Defendant both contend that any differential treatment on nationals

bestowed by section 15(1A) of the LPA on the grounds of nationality can be justified and

rationalized by Parliament deciding to do so in the public interest of providing a greater

opportunity for admission to the Bar to all nationals of Trinidad and Tobago. The Registrar

further indicated that the facts do not make the case of any constitutional breach for Ms.

Hadeed. She has not tried any alternative route to admission to demonstrate that those

routes are more difficult and onerous. The Defendant, however, also contends that the

burden of proof lies on Ms. Hadeed to show likeness and inequality. She has failed to

demonstrate that there is a suitable comparator. She is not similarly circumstanced as

nationals of Trinidad and Tobago. She is simply not allowed to access special provisions

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applicable to nationals only similar to her own provision in Grenada and St. Lucia. It is

perfectly proper to discriminate on the basis of nationality or citizenship. If it is

discrimination, it is justifiable, objectively purposeful and reasonable, it is not arbitrary and

there is fairness component.

36. The LATT adopted a neutral position. If section 15(1A) of the LPA is discriminatory, they

suggest that it should be struck down. Importantly, however, the LATT was unable to assist

the Court in relation to the policy behind the amendment to the LPA that introduced

section 15(1A) or whether any consultations were held with them before the section was

introduced. Interestingly, the LATT have themselves recommended the repeal of section

15(1A) in a sub-committee report was approved by the Council of the LATT.13

37. While the completion of the LPC does not entitle a person to be admitted to practise as a

solicitor in England and Wales, section 15(1A) carves out this facility subject to the

completion of a six month pupillage. In the UK the holder of the LPC will undergo a further

two years training before being admitted to the roll of Solicitors.14

38. To determine whether there is any additional burden on Ms. Hadeed in using another

pathway to obtain admission to the local bar and the constitutionality of section 15(1A) as a

legitimate pathway to admission, it is important to appreciate the context of the practice of

law in this country, the general scheme of admissions and the requirements of both the LPA

and the CLE Act.

The General Scheme of Admissions to Practise Law in Trinidad and Tobago

39. Prior to the establishment of the Faculty of Law of the University of the West Indies, there

was no West Indian system of legal education. The primary means of legal training were by

articleships with local solicitors culminating in the taking of the examinations of the English

Law Society and by reading for the English Bar, with or without the taking of a law degree

course as an internal or external student.15

13 Report of the Legal Profession Act Subcommittee of LATT, 8th March 2017 14 Affidavit of Theresa Hadad filed 27th November, 2018, paragraph 9 15 See The Legal Profession in the English Speaking Caribbean, Karen Nunez-Tesheira pages 6-7

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40. In 1963 the Council of the University of the West Indies appointed a Committee under the

chairmanship of the Honourable Sir Hugh Wooding to make recommendations for the

training in the West Indies of legal practitioners with a view to ensuring their admission to

practice and right to audience before the Courts of the West Indies. Those

recommendations were adopted by the CARICOM and formed the genesis of the

Agreement Establishing the Council of Legal Education (the CLE Agreement).16

41. The agreement dealt with a common desire of Caribbean nations to develop a scheme of

legal education and training and rights of audience before our Courts that was best suited

to the needs of the Caribbean. The agreement was a significant regional instrument also

coinciding with the creation of CARICOM itself. The agreement also revealed the nations’

awareness of the impact of law as an instrument of orderly, social and economic change in

the young independent nations of the Caribbean. The scheme of education devised was

decidedly indigenous in nature and saw the best achievement of a scheme of education and

training by a mix of academic training and institutional training17. The Council of Legal

Education was created to, among other things, take responsibility for the professional

training of persons seeking to become members of the legal profession and to equip and

maintain the law schools in the Caribbean for postgraduate professional legal training.

Reservations were only carved out for two members, the Bahamas and Cayman Islands.18

16 The CARICOM System: Basic Instruments edited by Duke Pollard, Chapter 5 17 AGREEMENT ESTABLISHING THE COUNCIL OF LEGAL EDUCATION THE CONTRACTING PARTIES: SHARING a common determination to establish without delay a scheme for legal education and training that is suited to the needs of the Caribbean; AWARE that the objectives of such a scheme of education and training should be to provide teaching in legal skills and techniques as well as to pay due regard to the impact of law as an instrument of orderly social economic change; CONVINCED that such a scheme of education and training can best be achieved by- Firstly, a University course of academic training in a Faculty of Law designed to give not only a background of general legal principles and techniques but an appreciation of relevant social science subjects including Caribbean history and contemporary Caribbean affairs; Secondly, a period of further institutional training directed towards the study of legal subjects, having a practical content and emphasis, and the acquisition of the skills and techniques required for the practice of law; RECOGNISING the need to vest responsibility for providing the institutional training in a Regional Council of Legal Education which should be established in advance of students being admitted to the Faculty of Law so as to give assurance that the whole scheme for legal education will be implemented in its entirety 18 PROTOCOL TO PROVIDE FOR THE RESERVATION MADE BY THE GOVERNMENT OF THE BAHAMAS TO PARAGRAPH 1 OF ARTICLE 5 OF THE AGREEMENT ESTABLISHING THE COUNCIL OF LEGAL EDUCATION.

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Pursuant to the CLE Agreement, the Council operates three law schools: the Hugh Wooding

Law School, the Norman Manley Law School, and the Eugene Dupuch Law School (“the law

schools”). The law schools award a Legal Education Certificate (“LEC”) and the Governments

of the State parties to the CLE Agreement agree to recognize the LEC as satisfying the

institutional training and education requirements for admission to practise law in their

territories.

42. Admission to practise law in Trinidad and Tobago, as a Contracting Party to the Treaty is

governed by the CLE Agreement. More significantly, by Article 5.1 each State Party agreed

that “no person shall be admitted to practise in its territory who does not hold such

certificate.”19 The rule of “pacta sunt servanda” will apply that every treaty in force is

binding upon the parties to it and must be performed in good faith.20

43. Article 3 of the CLE Agreement regulates entry into the law schools. The article provides

The contracting parties to the Agreement establishing the Council of Legal Education hereby agree that notwithstanding the provisions of paragraph 1 of Article 5, the Government of The Bahamas shall be able to admit to practise in The Bahamas, persons holding qualifications other than a Legal Education Certificate awarded by the Council of Legal Education. The Government of The Bahamas undertakes to review the position within five years of the coming into force of the Agreement with a view to implementing fully the provisions of paragraph 1 of Article 5. FURTHER PROTOCOL TO PROVIDE FOR THE ADHESION OF THE GOVERNMENT OF THE CAYMAN ISLANDS NOTWITHSTANDING PARAGRAPH 1 OF ARTICLE 5 OF THE AGREEMENT ESTABLISHING THE COUNCIL OF LEGAL EDUCATION. The contracting parties to the Agreement establishing the Council of Legal Education hereby agree that notwithstanding the provisions of paragraph 1 of Article 5, the Government of the Cayman Islands shall be able to admit to practise in the Cayman Islands persons holding qualifications other than a Legal Education Certificate awarded by the Council of Legal Education. Provided that the Government of the Cayman Islands may, at any time not later than five years from the date on which that Agreement entered into force, adhere unconditionally to the full terms of that Agreement but if, at the conclusion of the said period of five years, the Government of the Cayman Islands has not so adhered, it shall cease forthwith to be a participating Government in the Council of Legal Education. 19 Article 5 of the Agreement Establishing the Council of Legal Education provides: ARTICLE 5 Admission to Practice 1. The Government of each of the participating territories undertakes that it will recognise that any person holding a Legal Education Certificate fulfils the requirements for practice in its territory so far as institutional training and education are concerned and that (subject to the transitional provisions hereinafter contained and to any reciprocal arrangements that any of the said territories may hereafter make with any other country) no person shall be admitted to practise in that territory who does not hold such certificate. But nothing herein contained shall prevent any territory from imposing additional qualifications as a condition of admission to practise therein. 2. The foregoing provisions of this Article shall be subject to the terms of the Protocols to this Agreement which shall have effect for the purposes specified therein. 20See Rudisa Beverages and Juices N.V v The State of Guyana [2014] CCJ 1 (OJ)

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that the holder of the Bachelor of Laws (“LLB”) degree from the University of the West

Indies (UWI) and, with certain limitations, from the University of Guyana (UG), is

automatically qualified for admission to study at the law schools. The holder of a degree

from another university is required to sit and pass an entrance examination as a condition

of admission for a very limited number of places available after admission of the

automatically qualified graduates.

44. Further, Article 4 of the Agreement affords any person with a Bachelor of Laws (LLB) degree

(equivalent to the UWI LLB degree) and the requisite professional qualification the

opportunity to enrol in a six month programme at any of the Council of Legal Education’s

Law Schools to obtain the LEC.21

45. The new system established in the West Indies sought to meet the already changing nature

of the legal practice. Many Caribbean countries had both informally and formally moved

towards the fusion of the two branches of the profession. By 1986 Trinidad and Tobago

introduced a “fused profession” of the “attorney at law”. Way before that time the regional

21 Articles 3 and 4 of the Agreement Establishing the Council of Legal Education provides: ARTICLE 3 Admission to Law Schools Every person who holds a University of the West Indies LL.B. degree shall be eligible for admission to the Law Schools and every person who holds a degree of a University or Institution which is recognised by the Council as being equivalent to the University of the West Indies LL.B. degree shall, subject to the availability of places and to such conditions (if any) as the Council may require, be eligible for admission to the Law Schools: Provided that any national who prior to 1st October, 1972 was the holder of a University Degree or had commenced upon a degree programme other than in law and completed that programme before 1st October, 1975, shall be eligible to be admitted to one of the Professional Law Schools without being required to obtain a degree of LL.B. from the University of the West Indies or a Law Degree recognised by the Council of Legal Education as equivalent thereto but subject to such other terms and conditions as the Council of Legal Education shall after consultation with the Faculty of Law of the University of the West Indies determine. ARTICLE 4 Legal Education Certificate 1. On the satisfactory completion by any person of the course of study and professional training at one of the Law Schools established by the Council that person shall be awarded by the Council a certificate herein referred to as a Legal Education Certificate. 2. Any person to whom paragraph 1(b) of Article 6 does not apply and who- (a) has obtained a degree of a University or Institution which is recognised by the Council as equivalent to the University of the West Indies LL.B. degree; and (b) (i) is the holder of a qualification which had it been obtained prior to 1st October, 1972 would have been recognised by all of the participating territories as a qualification to be admitted to practise as a barrister or solicitor in those territories; or (ii) is the holder of a qualification, obtained in a Common Law jurisdiction, for admission to practise law in that jurisdiction and which qualification is approved by the Council; and (c) has completed, to the satisfaction of the Council, a six-month course of training organised by the Council, shall be awarded by the Council a Legal Education Certificate.

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commitments were incorporated into local law in the CLE Act. The preamble reads:

“An Act to provide for the implementation of the Agreement between the Governments

of certain Caribbean Territories establishing a Council of Legal Education, to incorporate

the said Council and to exempt it from certain taxes.”

46. In examining the implications on the constitutionality of section 15(1A) of the LPA, the CLE

Agreement and CLE Act assumes an important role in contextualising the importance of

Caribbean certification. In Boyce and another v R [2004] UKPC 32 it was observed:

“…The rights of the people of Barbados in domestic law derive solely from the

Constitution. But international law can have a significant influence upon the

interpretation of the Constitution because of the well-established principle that the

courts will so far as possible construe domestic law so as to avoid creating a breach of

the State's international obligations. “So far as possible” means that if the legislation is

ambiguous (“in the sense that it is capable of a meaning which either conforms to or

conflicts with the [treaty]”: see Lord Bridge of Harwich in R v Secretary of State for the

Home Department, Ex p Brind [1991] 1 AC 696, 747) the court will, other things being

equal, choose the meaning which accords with the obligations imposed by the treaty.

26 This principle is obviously at its strongest when it appears that the domestic law was

passed to give effect to an international obligation or may otherwise be assumed to

have been drafted with the treaty in mind. Its application to laws which existed before

the treaty is more difficult to justify as an exercise in construction but their Lordships

are willing to proceed on the hypothesis that the principle requires one to construe the

Constitution and other contemporary legislation in the light of treaties which the

government afterwards concluded.”22

22 Boyce and another v R [2004] UKPC 32, paragraphs 25-26. See also Caribbean Integration Law, David S. Berry pages 162-163:

“..under the common law, treaties generally do not give rise to enforceable rights in domestic law until they have been incorporated or transformed into that domestic law. The phrases ‘transformation’ and ‘incorporation’ are interchangeably used to describe the act of converting an international treaty obligation into a domestic one. Transformation is usually accomplished by means of a municipal statute or other legal measure…….

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See also Maya Leaders Alliance v The Attorney General [2015] CCJ 15 (AJ).

47. What this simply means is that our obligations both by the regional obligations and

municipal law are to recognise the LEC as the standard bearer of professional qualifications

for admission to the practice of law in any of the contracting parties of the Caribbean. The

LEC represented the minimum standard and any territory was free, depending on their own

conditions and requirements, to impose “additional qualifications” as a condition of

admission to practise law. There was no liberty to create a separate qualification without

recognition of the LEC as part of the pathway to admissions, nor for that matter a route

with inferior qualifications.

48. The only exception to this minimum requirement of recognition of the LEC was with respect

to the Bahamas and Cayman Islands. However, those countries, according to the protocols,

were given a period of five years to adhere and implement the proviso of article 5.1. The

CLE Agreement and CLE Act clearly intended building a pool of professionally trained

Caribbean lawyers for an emerging Caribbean society. Furthermore, inherent in the

recognition of the LEC is the recognition of the ability of nationals of the contracting parties

to have free access to each other’s legal markets. Where exceptions were provided to this

pathway, they were to be the subject of negotiations and amendment of the agreement or

protocols. From this perspective, one could understand if section 15(1A) of the LPA

provided for additional requirements beyond an LEC however, it certainly begs the question

of its legitimacy where it purports to confer admission status outside of the LEC Agreement

pathways and discriminately in favour of one’s nationality against a CARICOM national.

49. There is an inherent logic to the system devised by the CLE Agreement and CLE Act as the

pool of attorneys on that pathway form a useful resource for this country as architects of

social engineering not only in providing legal services but in the socio-political fields our

local and wider judiciary of the Caribbean and the Caribbean Court of Justice. As Duke

Transformation also has the effect of making international law into domestic law: a treaty, once enacted by statute, completely changes its legal nature and ceases to be international law. As will be seen in what follows, this has important consequences for the interpretation of domestic statutes which transform treaty obligations. It also means that a domestic court can never actually interpret or apply international treaty law: rather; it must interpret or apply the domestic legislation which contains rights and obligations that mirror those contained in the treaty.”

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Pollard noted “The Council of Legal Education was designed to establish a system of legal

education appropriate and relevant for the Commonwealth Caribbean region.”23 The need

to establish an indigenous Caribbean jurisprudence through certification by a central system

of Caribbean law schools, justified developing a pool of attorneys who can service the needs

of not only island states individually but the wider Caribbean in general and demonstrate

the regional response of developing home grown legal experts in a fused profession with a

separate and unique identity from the UK system of legal education and admissions.

50. There is no doubt that over time the demand for placements in the law schools outstripped

the limited resources under the LEC leading to a measure of frustration by prospective

applicants. The need to respond to quantitative demands balanced by qualitative responses

has been addressed in the Barnett Report24 as well as a Task Force Report25 established by

Parliament both of which, while acknowledging the increased demands for legal

qualifications at our law schools, disapproved of the development of any insular approaches

such as section 15(1A).

51. When the LPA was enacted in 1986, section 1526 of the LPA originally provided two

pathways for admission to practise law: as a Commonwealth citizen who was of good

character and hold “the qualifications prescribed by law” or as a non-citizen who obtained

the qualifications prescribed by law and who is subject to an order made by the Minister

under section 16. This was in keeping faith with the Wooding Committee27 and the CLE

Agreement. The person makes the application which was vetted by the Registrar and who

makes a report to the High Court that the person satisfies the requirements. The person’s

application is presented to the High Court and provided the application is approved, be

invited to take the attorney’s oath.28 The person is duly entered in the Roll of Attorneys

which is maintained by the Registrar and receives a practising certificate. Upon being

23 The CARICOM System: Basic Instruments edited by Duke Pollard, Chapter 5, page 96 24 Report of the Review Committee on Legal Education in the Caribbean (1996) referred to by Senior Counsel for the Registrar 25 Report of the Task Force Appointed by Cabinet to consider Legal Education in the Caribbean (1998) referred to in the Hansard Report 26 Legal Profession Act No.21 of 1986 27 Report of the Constitution Commission (1974) 28 Section 18 of the Legal Profession Act Chapter 90:03

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entered unto the Roll of Attorneys the person becomes an attorney at law and subject to

the provisions of the LPA.

52. Section 15 originally stated:

“15. (1) Subject to this Act a person who makes application to the High Court and

satisfies the Court that he-

(a) is a Commonwealth citizen,

(b) is of good character, and

(c) holds the qualifications prescribed by law,

shall be eligible to be admitted by the court to practise as an attorney-at-law in Trinidad

and Tobago,

(2) Before any person is admitted as an attorney-at-law, the Registrar shall enquire

whether the person has fulfilled all the conditions for admission laid down by law, and if

the Registrar is satisfied that the person has done so, he shall report accordingly to the

High Court.

(3) The High Court may issue directions as to the manner in which the qualifications for

admission to practise law may be proved and may order any person to furnish such

evidence as may be requested for the purpose of this section or section 16.

(4) An appeal lies to the Court of Appeal from an Order of the High Court refusing an

application made under this section.

(5) In this Part-

"High Court" and "Court" mean, subject to section 41(2), the High Court consisting of

two or three judges;

53. "Qualifications prescribed by law" means the qualifications for admission to practise law set

out in the CLE Agreement and the LEC.

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54. In 1996 the LPA was amended to include section 15A which read29:

“15A. Notwithstanding any law to the contrary the Minister, where he considers it

necessary or expedient after consultation with the Chief Justice, may by Order provide

that a Commonwealth citizen who has been admitted to practise in a Commonwealth

country for at least ten years, is eligible to be admitted to practise law in Trinidad and

Tobago on such terms and conditions, including but not limited to the duration of the

admission, as the Minister may specify in the Order."

55. In 2000, the LPA was further amended to carve out a benefit for nationals only: Section

15(1A) of the LPA states:

“15(1A) Notwithstanding this Act or any other written law to the contrary, a national of

Trinidad and Tobago who—

(a) has passed the Bar Finals or the Bar Vocational Course at an institution

validated by the general Council of the Bar of England and Wales, has been

called to the Bar of England and Wales and has completed pupillage of at least

six months and is certified as such;

(b) has passed the Law Society Finals or the Legal Practice Course at an

institution validated by the Law Society of England and Wales and having

undertaken articles or a training contract in accordance with the Training

Regulations of the Law Society of England and Wales, has been admitted to the

roll of Solicitors of the Supreme Court of England and Wales;

(c) has passed the Bar Vocational Course at an institution validated by the

general Council of the Bar of England and Wales; or

(d) has passed the Legal Practice Course at an institution validated by the Law

Society of England and Wales; and (e) in the case of persons referred to in

paragraphs (c) and (d) has obtained a certificate from the head of chambers of

an Attorney-at-law of not less than ten years standing, practising in Trinidad and

29 This section was disapproved in the Barnett Report as an insular approach

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Tobago to the effect that the national has undergone an attachment at those

chambers for a continuous period of not less than six months doing work relating

to the practice of Law,

is deemed to hold the qualification prescribed by Law and is entitled, subject to the

payment of the prescribed fees, to practise as an Attorney-at-law in Trinidad and

Tobago.”

56. Over time the LPA was amended to include reference to CARICOM nationals. Together with

section 16 there are now available several pathways to be admitted to the bar in Trinidad

and Tobago in different circumstances.30

30 Sections 15 and 16 of the LPA provides: “15. (1) Subject to this Act a person who makes application to the High Court and satisfies the Court that he—

(a) is a Commonwealth citizen or a CARICOM national; (b) is of good character, and either (c) holds the qualifications prescribed by law, or (d) is a person in respect of whom an Order has been made under section 15A, shall be eligible to be admitted by the Court to practise as an Attorney-at-law in Trinidad and Tobago. (1A) Notwithstanding this Act or any other written law to the contrary, a national of Trinidad and Tobago who— (a) has passed the Bar Finals or the Bar Vocational Course at an institution validated by the general Council of the Bar of England and Wales, has been called to the Bar of England and Wales and has completed pupillage of at least six months and is certified as such; (b) has passed the Law Society Finals or the Legal Practice Course at an institution validated by the Law Society of England and Wales and having undertaken articles or a training contract in accordance with the Training Regulations of the Law Society of England and Wales, has been admitted to the roll of Solicitors of the Supreme Court of England and Wales; (c) has passed the Bar Vocational Course at an institution validated by the general Council of the Bar of England and Wales; or (d) has passed the Legal Practice Course at an institution validated by the Law Society of England and Wales; and (e) in the case of persons referred to in paragraphs (c) and (d) has obtained a certificate from the head of chambers of an Attorney-at-law of not less than ten years standing, practising in Trinidad and Tobago to the effect that the national has undergone an attachment at those chambers for a continuous period of not less than six months doing work relating to the practice of Law, is deemed to hold the qualification prescribed by Law and is entitled, subject to the payment of the prescribed fees, to practise as an Attorney-at-law in Trinidad and Tobago. (2) Before any person is admitted as an Attorney-at-law, the Registrar shall enquire whether the person has fulfilled all the conditions for admission laid down by law, and if the Registrar is satisfied that the person has done so, he shall report accordingly to the High Court. (3) The High Court may issue directions as to the manner in which the qualifications for admission to practise law may be proved and may order any person to furnish such evidence as may be requested for the purpose of this section or section 16. (4) An appeal lies to the Court of Appeal from an Order of the High Court refusing an application made under this section.

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A Commonwealth citizen or a CARICOM national who holds the qualifications

prescribed by law (such as the LEC). (Section 15 (1)(a) of the LPA)

The Minister may by Order provide that Commonwealth citizen or a CARICOM

national is eligible to be admitted if he/she has been admitted to practise in a

Commonwealth country for at least ten years on such terms and conditions as may

be specified in the order. (Section 15(1)(d), Section 15A of the LPA)

A national of Trinidad and Tobago who has (a) has passed the Bar Finals or the Bar

Vocational Course at an institution validated by the general Council of the Bar of

(4A) in this section, “CARICOM national” means a person who—

(a) is a citizen of a CARICOM member State; or (b) has a connection with that State of a kind which entitles the person to be regarded as belonging to or, if it be so expressed, as being a native or resident of the State for the purposes of the law thereof relating to immigration.

(5) in this Part— “High Court” and “Court” mean, subject to section 41(2), the High Court consisting of two or three Judges; “qualifications prescribed by law” means the qualifications for admission to practise law set out in the Agreement. 15A. Notwithstanding any law to the contrary the minister, where he considers it necessary or expedient after consultation with the Chief Justice, may by Order provide that a Commonwealth citizen who has been admitted to practise in a Commonwealth country for at least ten years, is eligible to be admitted to practise law in Trinidad and Tobago on such terms and conditions, including but not limited to the duration of the admission, as the minister may specify in the Order. 16. (1) The minister may by Order provide that, subject to such exceptions, conditions and modifications as he may specify, a citizen or national of a country to which this section applies who has obtained the qualifications prescribed by law shall be eligible to be admitted by the High Court to practise law in Trinidad and Tobago. (2) This section applies to the country if the minister after consultation with the Chief Justice is satisfied—

(a) that the law of that country relating to the admission of legal practitioners to practise law in a superior Court of jurisdiction in that country is such as to ensure that a citizen of Trinidad and Tobago, who has obtained the qualifications and satisfied the conditions which would entitle a citizen or a national of that country to be admitted to practise as a legal practitioner in that country is entitled, or would if an Order were made under this subsection be or become entitled to admission as a legal practitioner of the superior Courts of jurisdiction of that country; and (b) that such entitlement to admission would be on terms as favourable as those which citizens or nationals of that country would, if an Order were made under this subsection, be or become entitled to admission as Attorneys-at-law in Trinidad and Tobago.

(3) A person shall be eligible to be admitted to practise law under subsection (1) only upon satisfying the Court of his qualifications and good character and upon payment of the prescribed fees. (4) Every person admitted by the High Court under the authority of an Order made under subsection (1) shall be deemed to have been duly admitted to practise law under this Act, and his name shall be registered forthwith on the Roll by the Registrar. (5) For the purposes of this section the expression “national” means, in the case of a country where there is no law in force conferring citizenship of that country, a person who is regarded as belonging to that country under any law in force in that country.”

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England and Wales, has been called to the Bar of England and Wales and has

completed pupillage of at least six months and is certified as such; (b) has passed the

Law Society Finals or the Legal Practice Course at an institution validated by the Law

Society of England and Wales and having undertaken articles or a training contract in

accordance with the Training Regulations of the Law Society of England and Wales,

has been admitted to the roll of Solicitors of the Supreme Court of England and

Wales; (c) has passed the Bar Vocational Course at an institution validated by the

general Council of the Bar of England and Wales and has obtained a certificate from

the head of chambers of an Attorney-at-law of not less than ten years standing,

practising in Trinidad and Tobago to the effect that the national has undergone an

attachment at those chambers for a continuous period of not less than six months

doing work relating to the practice of Law or (d) has passed the Legal Practice

Course at an institution validated by the Law Society of England and Wales and has

obtained a certificate from the head of chambers of an Attorney-at-law of not less

than ten years standing, practising in Trinidad and Tobago to the effect that the

national has undergone an attachment at those chambers for a continuous period of

not less than six months doing work relating to the practice of Law, is eligible to be

admitted. (Section 15(1A) of the LPA)

A non-citizen (a citizen or national of a country) who has obtained prescribed

qualifications may by Order of the Minister be eligible to be admitted to practice law

in Trinidad and Tobago provided that the law of that country relating to the

admission to practice is such as to ensure that a citizen of Trinidad and Tobago who

has obtained the qualification which would entitle a national or citizen of that

country to be admitted to practise, is entitled to admission to practise law in that

country. (Section 16 of the LPA)

57. St Lucia and Grenada have also created their own pathways to admissions.31

31 Sections 15 and 16 of the Legal Profession Act Chap 2:04 of St Lucia provide for the admission of persons

(citizens and non-citizens) to practise law in St. Lucia: “15. Admission of citizens to practise

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(1) Subject to subsection (3) and section 16, the Court may admit to practise as an attorney-at law in Saint Lucia — (a) any English or Irish barrister-at-law, or any Scottish advocate; (b) any barrister or advocate of any of the Superior Courts of any British Possession where similar privileges are accorded to barristers of the Supreme Court; (c) any solicitor of the United Kingdom or Law Agent admitted to practice in Scotland; (d) subject to subsection (2), any person who being not less than 18 years and otherwise qualified, shall have passed the intermediate and final examinations of the Law Society of England; o (e) any person of not less than 18 years who has obtained the Legal Education Certificate awarded by the Council of Legal Education. (2) In order to be admitted under subsection 1 (d) a person shall produce to the Registrar, certificates of the Law Society of England that he or she has passed the intermediate and final examinations of the said Law Society and shall at the same time produce satisfactory evidence — (a) that he or she served for 5 years continuously in the Chambers of a practicing barrister and has throughout that time been of a good character; and (b) that he or she has passed one of the following examinations, that is to say — (i) the Matriculation Examination of the University of London; (ii) the School Certificate Examination of the University of Cambridge; or (iii) any examination prescribed as qualifying for admission to the Inns of Court. (3) In order to be admitted to practise as an attorney-at-law in Saint Lucia under subsection (1), a person shall make an application to the High Court and satisfy the High Court that — (a) he or she is a citizen of Saint Lucia; (b) he or she is of good character; (c) he or she does not have a criminal record except if it is for a minor traffic offence; (d) he or she is not declared by a court to be bankrupt; and (e) he or she has paid the prescribed fee. (4) The High Court may by order refuse to admit a person who fails to satisfy the requirements of this section. (Amended by Act 8 of 2007) 16. Eligibility and admission of non-citizens (1) Subject to subsection (2) the Attorney General may by order published in the Gazette provide that, subject to such conditions as the Attorney General may specify, a person who is a citizen or a national of a country other than Saint Lucia and who satisfies the requirements of subsections (1) and (2) of section 15 shall be eligible to be admitted by the High Court to practice law in Saint Lucia. (2) The Attorney General shall not make an order under subsection (1) unless the Attorney General is satisfied after consultation with the Chief Justice that the person is a citizen or a national of a country the laws of which gives reciprocal treatment to a citizen of Saint Lucia in relation to admission to practice law in that country. (3) A person who is eligible to be admitted to practise law under subsection (1) may make an application to the High Court to be admitted to practise law in Saint Lucia and the High Court shall, if satisfied that— (a) the person satisfies the requirements of subsections (1) and (2) of section 15; (b) the person is of good character; (c) does not have a criminal record except if it is for a minor traffic offence; (d) is not declared to be bankrupt by a court; and (e) the person has paid the prescribed fee, admit the person to practise law in Saint Lucia; (4) A person admitted by the High Court under the authority of an order made under subsection (1) shall be deemed to have been duly admitted to practise law under this Act and his or her name shall be registered on the Roll by the Registrar. (5) For the purposes of this section the expression “national” means, in the case of a country where there

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is no law in force conferring citizenship of that country, a person who is regarded as belonging to that country under any law in force in that country. (Amended by Act 8 of 2007)

Sections 17 and 18 of the Grenada LPA are similar to the admission requirements in Trinidad and Tobago:

“17. Admission to practise and enrolment (1) Subject to the provisions of this Act, a person who makes an application to the Supreme Court, and satisfies the Supreme Court that he— (a) is of good character; and either— (i)holds the qualifications prescribed by law, or (ii) is a person in respect of when an Order has been made under section 18; (b) has paid the prescribed fees under the provisions of the Stamp Act, Chapter 309, in respect of such admission; (c) has filed in the office of the Registrar an affidavit of his identity, and stating that he has paid the prescribed fee; and (d) has deposited with the Registrar for inspection by the Court, his certificate, with respect to his qualifications prescribed by law, shall be eligible to be admitted by the Court to practise as an attorney-at-law in Grenada. (2) Notwithstanding the provisions of this Act or any other written law to the contrary, a national of Grenada who makes an application to the Court and satisfies the Court that— (a) he has the qualifications which would allow him to practise law in any country having a sufficiently analogous system of laws as Grenada; and (b) he has obtained a certificate from the head of chambers of an attorney-at-law of not less than ten years standing, practising in Grenada to the effect that the national has undergone an attachment to those chambers for a continuous period of not less than six months relating to the practise of law, is deemed to hold the qualifications prescribed by law and is entitled, subject to fulfilling the conditions under subsection (1), to be admitted by the Court to practise as an attorney-at-law in Grenada. (3) Before any person is admitted as an attorney-at-law, the Registrar shall enquire whether the person has fulfilled all the conditions for admission laid down by law, and if the Registrar is satisfied that the person has done so, he shall report accordingly to the Supreme Court. (4) The Supreme Court may issue directions and conditions as to the manner in which the qualifications for admission to practise law may be proved, and may order any person to furnish such evidence as may be requested, for the purpose of this section or section 18. (5) Notwithstanding any law to the contrary, the Minister, where he considers it necessary or expedient after consultation with the Chief Justice, may, by Order, provide that a Commonwealth citizen who has been admitted to practise in a Commonwealth country, is eligible to be admitted to practise law in Grenada on such terms and conditions, including but not limited to the duration of the admission, as the Minister may specify in the Order. 18. Admission to practise by Order (1) The Minister after consultation with the Council, may by Order provide that, subject to such exceptions, conditions and modifications a citizen or national of a country to which this section applies, who has obtained the qualifications prescribed by law, shall be eligible to be admitted by the Supreme Court to practise law in Grenada. (2) This section applies to the country, if the Minister after consultation with the Council is satisfied— (a) that the law of that country relating to the admission of legal practitioners to practise law in a superior Court of jurisdiction in that country, is such as to ensure that a citizen of Grenada, who has obtained the qualifications and satisfied the conditions which would entitle a citizen or a national of that country to be admitted to practise as a legal practitioner in that country is entitled, or would, if an Order were made under this subsection, be or become entitled to admission as a legal practitioner of the superior Courts of jurisdiction of that country; and

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58. The Hugh Wooding Law School which operated in Trinidad and Tobago under the aegis of

the Council of Legal Education offers two programmes through which individuals may

obtain the qualifications prescribed by law within the meaning of Part III of the LPA which

entitles persons to practise as an attorney at law in Trinidad and Tobago. These are:

a) A two year full time programme of training; and

b) A transitional six month programme for persons who have been professionally

trained in a common law jurisdiction in respect of which the Principal may add to or

exempt a student from any of the four courses prescribed having regard to his/her

professional training and experience.

59. In the Barnett Report it was observed about the law schools in the Caribbean that “The

objective was to ensure that there was not only a sound academic base for the training

programme but a regulated period of institutional practical training.”32

60. Significantly, the terms of reference of the Barnett Report which came some five (5) years

before the Revised Treaty of Chaguaramas (RTC)33, took into account developments in

technology, regional trade in administration, economic law to make recommendations

(b) that such entitlement to admission would be on terms as favourable as those which citizens or nationals of that country would, if an Order were made under this subsection, be or become entitled to admission as an attorney-at-law in Grenada. (3) A person shall be eligible to be admitted to practise law under subsection (1), only upon satisfying the Court of his qualifications and good character, and upon payment of the prescribed fees. (4) Every person admitted to practise law by the Supreme Court under the authority of an Order made under subsection (1), shall be deemed to have been duly admitted to practise law under this Act, and his name shall be registered forthwith in the Roll by the Registrar. (5) For the purposes of this section, “national” means, in the case of a country where there is no law in force conferring citizenship of that country, a person who is regarded as belonging to that country under any law in force in that country.

32 Report of the Review Committee on Legal Education in the Caribbean, 1996 (The Barnett Report) The report also noted:

I.C.3. The founding Committee which had been appointed in 1963 by the Council of the University of the West Indies, under the chairmanship of the Rt. Hon. Sir Hugh Wooding, T.C., P.C., C.B.E. was asked –to consider and make recommendations to Council on the assistance which the University of the West Indies, as part of its service to the West Indian community and in the light of its responsibility for satisfying the intellectual and professional needs in the West Indies should provide for the training in the West Indies of legal practitioners with a view to ensuring their admission to practice and the right to audience before the Courts of the West Indies.

33 Revised Treaty of Chaguaramas establishing the Caribbean Community including the CARICOM Single Market and Economy.

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regarding the Caribbean scheme of legal education and admission to practise law. The

Barnett Report noted the demands on the law school for placement of non-UWI graduates

who sought admission into the laws schools. However, their opinion was resolute “All these

issues need to be tackled in a comprehensive and decisive way if the Caribbean system is to

be preserved in order to secure its intended purposes and to fulfil the aspirations of its

architects.”34 It also concluded:

“3.1.1.This Committee has expressed its adherence to the ideals of the framers of the

West Indian system of legal education, the components of which may be spelled out in

the following terms: (i) Provision of a sound academic base by which the law students

gain the analytical and conceptual modes of thinking and reasoning as well as the

knowledge of the fundamental principles of law and their relationships with and

relevance to the Caribbean society; (ii) induction of the students to the study of law as a

"liberal and liberating subject" and inculcation of an appreciation of law as an

instrument of social change and economic development; (iii) imparting of the skills

required for the practice of law and of an understanding of the role of the lawyer in the

Caribbean community; and (iv) creation of an integrated legal profession in the

Commonwealth Caribbean armed with the capacity to deal with the complex challenges

facing developing countries in their common struggle in a competitive and technological

age.”

61. The Barnett Report examined the need for the restructuring of the West Indian system of

legal education and examined the quantitative and qualitative growth in demand. It made

some important recommendations:

That the quota system of contributing countries be re-examined with a view to

ensuring that it is placed on a rational and flexible basis which takes into account all

relevant factors.

To extend the six (6) month course to a one (1) year course and for including a

requirement for examination.

34 Report of the Review Committee on Legal Education in the Caribbean (The Barnett Report) I.D.2

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Expressed concern over measures and proposals by contracting States which would

undermine the foundation of the West Indian scheme of training geared to the

needs of the Caribbean countries.

To extend the capacity of the law schools but at the same time maintaining proper

quality controls.

62. In 1998, a Task Force was appointed by the Cabinet of Trinidad and Tobago to examine the

present system of legal education in the Caribbean to ascertain whether it adequately

equips lawyers to meet satisfactorily the needs of Trinidad and Tobago in particular and

those of the Caribbean region as a whole then and in the future.35 The Task Force Report36

noted the government of Trinidad and Tobago was of the view that no bar should be placed

in the way of nationals in their pursuit of the career of their choice and was conscious of the

need in the Caribbean of highly qualified persons in various fields including law to meet the

challenges of the 21st century.37 The Report made a number of observations and

35 The “Report of the Task Force appointed by Cabinet to consider Legal Education in the Caribbean” (1998):

“As recorded in Cabinet Minute No. 2225 of August 28, 1997, a Task Force comprising the under-mentioned persons was appointed upon the recommendation of the Attorney General with the following Terms of Reference:

(A) To examine the present system of legal education in the Caribbean to ascertain whether it adequately equips lawyers to meet satisfactorily the needs of Trinidad and Tobago in particular, and those of the Caribbean Region as a whole, now and in the future; whether the curriculum should be broadened to indicate other disciplines; and whether the training should be extended to meet the demands of the next century and to consider other matters connected therewith;

(B) To consider the following recommendations of the CARICOM Attorneys General and the implementation of such recommendations:

a) The existing two year programme leading to the Certificate of Legal Education should be modified to permit a system of attachment to Law Chambers;

b) These attachments should be monitored by the Council of Legal Education and replace the two years now spent at the Law School;

c) Students should be allowed to prepare for examinations through distance learning arrangements;

d) CARICOM nationals trained in Commonwealth jurisdictions should be allowed to practise in the region so long as they satisfy the Court that they have been in practice for a minimum period of five years.”

36 Report of the Task Force Appointed by Cabinet to consider Legal Education in the Caribbean (1998) 37 Report of the Task Force Appointed by Cabinet to consider Legal Education in the Caribbean (1998), paragraph 3.10: “Trinidad and Tobago’s Position

3.10 The documents consulted indicate that the government of Trinidad and Tobago is of the view that no bar should be placed in the way of nationals in their pursuit of the career of their choice, and is conscious of the need in the Caribbean of highly qualified persons in various fields including law to meet

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recommendations which deserve attention:

It was recommended that the Council of Legal Education be requested to act under

the Agreement and attach further conditions to the grant of places at the Law

Schools, such as the holding of a particular class of degree or the taking of a further

examination.

It did not support the proposal to extend the six (6) month course to a period of year

due to the limited availability of text and legal material which needs to be studied in

that period and no credit is given to the experience of the applicant.

It was concerned whether the present system too readily permits an attorney with a

LEC and no practical experience to be admitted to practise without further

requirements and recommended continuing education and period of supervision.

The licensing of chambers to provide practical training and the grant of a LEC linked

to the student’s performance as an in-service trainee.

It supported “and completely acknowledges the need to educate Caribbean lawyers

in the Caribbean for the simple reason that our jurisprudence differs in several

aspects from the jurisprudence of other territories including that of the United

Kingdom and we firmly believe the law schools should remain the premier centres

for training lawyers in the Caribbean.”

With respect to CARICOM Nations the report notably stated:

“8.2 Under the Legal Profession Act, as amended, CARICOM nationals trained in

other Commonwealth jurisdictions may gain admission to practice in Trinidad

and Tobago. We make no recommendation for any change in the Act to

accommodate CARICOM nationals trained in other jurisdictions who have less

than ten years experience because there appears to be no valid justification for

the challenges of the twenty-first century and the imminent needs of the proposes Caribbean Supreme Court. Recommendations reflecting these views were advanced at a meeting of Council held in Antigua in June 1997, as a result of which the decision was taken to refer the matter to a Select Committee for further consideration. On August 28, 1997 the Government of Trinidad and Tobago appointed the Task Force with the stated terms of reference.”

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making any distinction between CARICOM nationals and other Commonwealth

citizens in this regard.

8.3 With respect to CARICOM nationals, Article 5 of the Agreement Establishing

the Council of Legal Education provides that the government of each of the

participating territories undertakes to recognise any person holding the Legal

Education Certificate as fulfilling the requirements or practice in its territory “so

far as institutional training and education are concerned.” We are of the view

that this is a matter with which we ought not to interfere.”

63. In this context it is significant to note the LATT’s own attempt at reform of section 15v of

the LPA. The LATT was created by the LPA to38:

“(a) to maintain and improve the standards of conduct and proficiency of the legal

profession in Trinidad and Tobago;

(b) to represent and protect the interests of the legal profession in Trinidad and Tobago;

(c) to protect and assist the public in Trinidad and Tobago in all matters relating to the

law;

(d) to promote good relations within the profession, between the profession and

persons concerned in the administration of justice in Trinidad and Tobago and between

the profession and the public generally;

(e) to promote good relations between the profession and professional bodies of the

legal profession in other countries and to participate in the activities of any international

association of lawyers and to become a member thereof;

(f) to promote, maintain and support the administration of justice and the rule of law.”

64. Upon being admitted to the bar comes with it membership of the LATT39. One aspect of the

LATT’s sub-committee’s work has been the revision of laws and naturally section 15(1A) has

38 Section 5 of the LPA 39 Section 6(1) of the LPA provides:

“6. (1) Every Attorney-at-law to whom a practising certificate is issued is a member of the Association and shall remain a member for so long as his practising certificate has effect”

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been a source of concern for the LATT. Ms. Theresa Hadad, Treasurer of the LATT, points

out that the LATT has considered and reviewed the prerequisites for admission to the Bar of

Trinidad and Tobago prescribed by section 15(1A) of the LPA as part of the LATT’s statutory

responsibility to maintain and improve the standards of conduct and proficiency of the legal

profession in Trinidad and Tobago.

65. By the 8th March 2017 Report of the LPA, the Subcommittee of the LATT proposed the

repeal of inter alia section 15(1A) (d) and (e) of the LPA which allowed Trinidad and Tobago

nationals who have completed the LPC but who have not undertaken articles or a training

contract in accordance with the Training Regulations of the Law Society of England and

Wales or who have not been admitted to the Roll of Solicitors of the Supreme Court of

England and Wales to practise as an attorney at law in Trinidad and Tobago after an

attachment at the chambers of an attorney at law for six months. That report also proposed

the repeal of section 15(1A) (c) of the LPA which allows Trinidad and Tobago nationals who

have completed the Bar Vocational Course but who have not been called to the Bar of

England and Wales and have not completed pupillage for at least six months in England to

practise as an Attorney at law in Trinidad and Tobago after an attachment at the chambers

of an Attorney at law for six months. This report was approved by the Council of the LATT.

66. The report also contains significant amendments which appear on their face to

commendably update the provision of legal services in this territory such as dealing with

contingency fees and disciplinary matters. On section 15(1A) it recommended:

Section 15(1A)(c)- By repealing this provision, such repeal to come into force on

a date not later than 2 years after its proclamation by the President (To phase

out the admission of BVC graduates over two years and comply with Treaty

obligations under the Agreement defined in section 2(1) of the LPA and set out in

the schedule to the Council of Legal Education Act).

15(1A)(d)- By repealing this provision, such repeal to come into force on a date

not later than two years after its proclamation by the President (To phase out

the admission of LPC graduates over two years and comply with Treaty

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obligations under the Agreement defined in section 2(1) of the LPA and set out in

the schedule to the Council of Legal Education Act).

15(1A)(e)- By replacing the word “ten” with the word “fifteen” and by replacing

the word “six” with the word “twelve.” (Pending the repeal of sections 15(1A)(c)

and 15(1A)(d) to increase the years’ standing for attorneys eligible to give

attachment certificates and also to increase the period of attachment to one

year).

15(1A)(e)- By deleting “work relating to the practice of law” and replacing it with

the words “in accordance with rules which may be made by the Council for

prescribing and regulating the manner of such attachment.” (Pending the repeal

of sections 15(1A)(c) and 15(1A)(d), to ensure quality and to standardize what is

expected during the period of attachment).

67. Importantly, the Caribbean dimension to this claim evident in the CLE agreement was

discussed in the decision by the Caribbean Court of Justice (CCJ) in Jason Jones v Council of

Legal Education and others [2018] CCJ 2 (OJ). In that case, the CCJ declined to accept

jurisdiction over the interpretation and application of the CLE agreement in so far as it

created rights in Caribbean nationals in their access to the law schools. The Council of Legal

Education was not an institute or associated institute of the Caribbean Community:

“The Agreement Establishing the Council of Legal Education is as much a treaty as is the

Revised Treaty of Chaguaramas. It is not suggested that the Treaty overrides the

Agreement or that the Agreement has been terminated or its operation suspended by

implication under Article 59 of the Vienna Convention on the Law of Treaties (“VCLT”).

Therefore, this Court must accept, the Caricom States which are parties to the

Agreement must in principle continue to give full force to the Agreement, and the

provisions of the Agreement which govern admission to the law schools. Thus, Article 3

of the Agreement, which provides that the Council shall give automatic admission into

the law schools of UWI LL B degree holders, is not a matter of policy that the Council or

the law schools can change. Article 3 would have to, and can only, be altered by the

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parties to the Agreement not by the Council or anyone else for that matter.”40

68. It means that absent the CCJ’s input on the interpretation and the application of the CLE

Agreement and insofar as the relevant parts of that agreement have been incorporated into

local law, this Court is tasked with the duty to interpret the fundamental rights cast against

this Caribbean dimension of the CLE Agreement. Moreover, it emphasises that no State can

unilaterally alter the obligations imposed by the CLE Agreement.

69. Although in reference to the RTC, in Rudisa Beverages and Juices N.V v The State of

Guyana [2014] CCJ 1 (OJ) the CCJ held that “No State can be allowed to carve out an

exception to the observance of its treaty obligations by seeking refuge in an inability to

garner sufficient legislative support to repeal or amend existing national law that is or may

be incompatible with the RTC.”41 A similar rationale applies to the CLE Agreement. Section

15(1A) was a clear breach of section 3 of the CLE Act and the CLE Agreement. There is yet

another Caribbean dimension to the practise of law.

A Caribbean Context- The RTC and The Immigration (Caribbean Community Skilled Nationals)

Act

70. Ms. Hadeed is a citizen of a Caribbean Community State, St Lucia. She has obtained her

certificate pursuant to section 3 Immigration (Caribbean Community Skilled Nationals) Act

which has guaranteed her the rights of free movement and establishment recognised under

the RTC. Such rights of free movement are also a bundle of rights guaranteed to her under

the RTC. The RTC was in fact signed by the contracting parties in the same year as section 15

(1A) was assented to. The RTC made provisions on free movement and establishment in the

Caribbean Community:

“ARTICLE 37

Removal of Restrictions on Provision of Services

1. Subject to the provisions of this Treaty, Member States shall abolish discriminatory

restrictions on the provision of services within the Community in respect of Community

40 Jason Jones v Council of Legal Education [2018] CCJ 2(OJ), paragraph 18 41 Rudisa Beverages and Juices N.V v The State of Guyana [2014] CCJ 1 (OJ) paragraph 20

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nationals42.

ARTICLE 45

Movement of Community Nationals

Member States commit themselves to the goal of free movement of their nationals

within the Community.

ARTICLE 46

Movement of Skilled Community Nationals

1. Without prejudice to the rights recognised and agreed to be accorded by Member

States in Articles 32, 33, 37, 38 and 40 among themselves and to Community nationals,

Member States have agreed, and undertake as a first step towards achieving the goal

set out in Article 45, to accord to the following categories of Community nationals the

right to seek employment in their jurisdictions:

(a) University graduates;

(b) media workers;

(c) sportspersons;

42 2. Subject to the approval of the Conference, COTED, in consultation with other competent Organs, shall, within

one year from the entry into force of this Treaty, establish a programme for the removal of restrictions on the provision of such services in the Community by Community nationals.

3. In establishing the programme mentioned in paragraph 2 of this Article, COTED shall: (a) accord priority to services which directly affect production costs or facilitate the trade in goods and services which generate foreign exchange earnings; (b) require the Member States to remove administrative practices and procedures, the maintenance of which impede the exercise of the right to provide services; (c) establish measures to ensure the abolition of restrictions on the right to provide services in respect of activities accorded priority treatment in accordance with sub-paragraph (a) of this paragraph, both in terms of conditions for the provision of services in the territories of Member States as well as the conditions governing the entry of personnel, including their spouses and immediate dependent family members, for the provision of services; (d) take appropriate measures to ensure close collaboration among competent national authorities in order to improve their knowledge of the conditions regarding relevant activities within the Community, and (e) require the Member States to ensure that nationals of one Member State have on non-discriminatory basis, access to land, buildings and other property situated in the territory of another Member State for purposes directly related to the provision of services, bearing in mind the importance of agriculture for many national economies

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(d) artistes; and

(e) musicians,

recognised as such by the competent authorities of the receiving Member States.

2. Member States shall establish appropriate legislative, administrative and procedural

arrangements to:

(a) facilitate the movement of skills within the contemplation of this Article;

(b) provide for movement of Community nationals into and within their jurisdictions

without harassment or the imposition of impediments,

including:

(i) the elimination of the requirement for passports for Community nationals

travelling to their jurisdictions;

(ii) the elimination of the requirement for work permits for Community nationals

seeking approved employment in their jurisdictions;

(iii) establishment of mechanisms for certifying and establishing equivalency of

degrees and for accrediting institutions;

(iv) harmonisation and transferability of social security benefits.

3. Nothing in this Treaty shall be construed as inhibiting Member States from according

Community nationals unrestricted access to, and movement within, their jurisdictions

subject to such conditions as the public interest may require.

4. The Conference shall keep the provisions of this Article under review in order to:

(a) enlarge, as appropriate, the classes of persons entitled to move and work freely in

the Community; and

(b) monitor and secure compliance therewith.”

71. No doubt section 3 of The Immigration (Caribbean Community Skilled Nationals) Act is the

State’s fulfilment of its regional commitment to so guarantee CARICOM nationals these

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rights and specifically Article 46. It was intended to confer these rights of free movement

and labour for our skilled nationals for the Caribbean.

72. Section 3 of the Immigration (Caribbean Community Skilled Nationals) Act provides that:

“3(1) Notwithstanding any other written law, an immigration officer shall, subject to

sections 4A, 7 and 15(5), permit a person to whom this section applies to enter Trinidad

and Tobago for a period of indefinite duration except where he is—

(a) the subject of a deportation order issued against him under any written law; or

(b) afflicted with any infectious or dangerous infectious disease.

(2) This section applies to a national who presents on entry to Trinidad and Tobago, a

passport issued by a qualifying Caribbean Community State, or any other State together

with a certificate issued by the Government of Trinidad and Tobago in the form set out

in Schedule II, certifying that the national is recognised by the Government of Trinidad

and Tobago as holding qualifications which satisfy the conditions for recognition of

Caribbean Community skills qualification.”

73. Importantly, section 3(3) provides that such a person shall not be subject to—

(a) any restriction on freedom of movement, including the freedom to leave and re

enter Trinidad and Tobago without further permission; or

(b) any restriction on freedom to acquire property for use as that person’s residence;

or

(c) any restriction on the right to engage in gainful employment or occupation in

accordance with the certificate issued under subsection 3(2); or

(d) any restriction on freedom to acquire property for use in that person’s business,

which would not apply if that person were a citizen of Trinidad and Tobago.

74. Such a certificate cannot be revoked except for the reasons provided in section 5:

“5. (1) Subject to subsections (2) and (3) and sections 4A and 15, permission to enter

Trinidad and Tobago and the rights granted and privileges conferred under this Act shall,

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notwithstanding any other written law, be irrevocable.

(2) The Minister to whom responsibility for immigration is assigned, may revoke any

permission granted to a person under this Act, where that person is the subject of an

order made against him for his extradition, deportation or other form of surrender.

(3) Where a person to whom section 3 or 4 applies commits an offence which if

committed in Trinidad and Tobago would be punishable with imprisonment for one year

or more, the Minister to whom responsibility for immigration is assigned may revoke

any permission granted to the person under this Act and make a deportation order

against that person under the Immigration Act.”

75. Notwithstanding the submissions of the Defendant to the contrary, there is no offence

created by the Immigration (Caribbean Community Skilled Nationals) Act to secure any form

of employment other than that stated in the certificate. Section 15 of the Immigration

(Caribbean Community Skilled Nationals) Act provides:

“15. (1) A person who for the purpose of procuring a certificate under Schedule II, or for

the purpose of seeking permission under section 3(1) or 4(1)—

(a) makes any statement which that person knows to be false in a material particular;

or

(b) recklessly makes any statement which is false in a material particular, is guilty of

an offence.

(2) The Minister may cancel a certificate set out in Schedule II where the holder of the

certificate is convicted of an offence under this section.

(3) Where a person seeks to derive a benefit by the use of a certificate which has been

cancelled by the Minister or by the Government of a qualifying Caribbean Community

State, knowing that it has been cancelled, he is guilty of an offence.

(4) The Minister to whom responsibility for immigration is assigned may revoke the

permission of a person granted under section 3(1) or 4(1) where that person is

convicted of an offence under this section.

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(5) An immigration officer shall not permit a person to enter or remain in Trinidad and

Tobago where that person has been convicted of an offence under this section.”

76. Section 3 (3) (c) is clear and unequivocal on its face in levelling the playing field between

CARICOM nationals and Trinidad and Tobago nationals and to remove as much restrictions

to engage in lawful employment which would apply to any citizen of Trinidad and Tobago.

77. In Maurice Tomlinson v The State of Belize, Maurice Tomlinson v The State of Trinidad and

Tobago [2016] CCJ 1(OJ), the CCJ saw the municipal law which empowered the immigration

authority to deny entry to homosexuals was incongruous with section 3 of the Immigration

(Caribbean Community Skilled Nationals) Act:

“Furthermore, this right to enter Trinidad and Tobago to seek employment is

consolidated in section 3 of the Immigration (Caribbean Community Skilled Nationals)

Act (the Skilled Nationals Act) which requires an immigration officer to permit entry into

Trinidad and Tobago of skilled CARICOM nationals who present a skills certificate,

‘notwithstanding any other written law.’ By virtue of being a UWI graduate, Tomlinson is

entitled to a skills certificate (although he has yet to apply for one): section 8 of the

Skilled Nationals Act. If Tomlinson enjoys a legal right of entry under the Skilled

Nationals Act (notwithstanding that he is a homosexual) it seems incongruous that he

could legally be denied entry under section 8(1)(e) of the Immigration Act on the basis

that he is a homosexual.”43

78. Armed then with her LPC, being denied admission on the section 15(1A) pathway meant the

additional burden of writing an entrance examination to enter the HWLS to undertake a

two year course of study or alternatively to continue the practise of law in the UK and to

practise there for period of ten (10) years before being admitted to practise law in this

jurisdiction. Rather than undergo the six (6) months pupillage under the section 15(1A)

route, Ms. Hadeed’s admission here has stalled to await the outcome of her legal

aspirations in some years to come, at the very least two (2) at the very most ten (10).

43 Maurice Tomlinson v The State of Belize, Maurice Tomlinson v The State of Trinidad and Tobago [2016] CCJ 1(OJ), page 49

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Alternatively, she may apply for citizenship.44 In contrast, the national of Trinidad and

Tobago has an immediate passage into the practise of law with her same qualifications

without additional burdens provided the other conditions of suitability are satisfied and the

Court accepts the application.

79. Against this factual and legislative context Ms. Hadeed’s constitutional rights are to be

interpreted. It is in this context on the pathway to admission to the development of an

indigenous legal practice with a Caribbean focus that the question arises, should any of

these pathways be affected by a discriminating feature debarring a benefit to other

CARICOM nationals. Is discrimination on the grounds of nationality a “suspect group”, a

core feature of identity calling for anxious scrutiny or is it a differentiation which can be

legitimately justified? Is the extra burden on the non-national justifiable? In the next part, I

examine whether our Constitution recognises “nationality” as a prohibited ground of

discrimination.

PART II CONSTITUTIONAL INTERPRETATION

“Either I’m nobody or I’m a nation”- Sir Derek Walcott45

“Who am I?”-Origin and Nationality: A Core Feature of Identity

80. Who is Ms Hadeed? What are some core features of her identity? Some features were not

as discernible in this hearing such as religion or race. But some were obvious such as sex,

colour and origin. She is a St Lucian of Grenadian birth. She is not “Trinbagonian”. A critical

point made by both the Defendant and the Registrar is that one’s nationality is not a

personal characteristic of the individual, it is not an immutable aspect of one’s identity. The

distinction is of importance in the constitutional context of a claim of discrimination or

inequality of treatment under Section 4 (b) and (d). They submit that the general

prohibition against discrimination in the Constitution on the ground of “origin” provided in

section 4 of the Constitution denotes ancestry or parentage while nationality is a legal

concept defining your relationship with a State. The former is a characteristic of

44 See Citizenship of the Republic of Trinidad and Tobago Act Chapter 1:50 45 The Schooner Flight

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personhood, the latter is not. Why this distinction is important for the Defendant is that,

accepting on its face that section 15(1A) does differentiate between classes of nationals

from non-nationals, if it does so on the basis of one’s “origin” as a characteristic of one’s

identity, it would call for more heighted scrutiny by the Court and demand an inscrutable

response of justification of that law by the State.

81. I have approached this important question in the following manner: First, that the concept

of “origin” used in the Constitution is wide enough to incorporate concepts of nationality as

part of one’s personhood. Second, if this analysis is not correct then the alternative view is

that nationality must represent a feature of one’s identity, a characteristic which is not

specifically mentioned in the section 4 general prohibition of the Constitution but

nonetheless a personal characteristic which is integral to her personhood. The fact that a

characteristic of one’s identity is not mentioned in the general prohibition does not make it

less of a characteristic of one’s identity or shapes “who I am”.

82. In any event, both call for justification, reasonableness and objective purposefulness, the

former calling for a more heightened scrutiny.

83. It is important to put the word “origin” as used in the Constitution in its appropriate context

in dissecting this claim of discrimination. The concept of discrimination is in both the

general prohibition and the specific enumeration of fundamental rights. The section 4

fundamental rights are framed:

“It is hereby recognised and declared that in Trinidad and Tobago there have existed

and shall continue to exist, without discrimination by reason of race, origin, colour,

religion or sex, the following fundamental human rights and freedoms, namely:

(a) the right of the individual to life, liberty, security of the person and

enjoyment of property and the right not to be deprived thereof except by due

process of law;

(b) the right of the individual to equality before the law and the protection of the

law;

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(c) the right of the individual to respect for his private and family life;

(d) the right of the individual to equality of treatment from any public authority

in the exercise of any functions;

(e) the right to join political parties and to express political views;

(f) the right of a parent or guardian to provide a school of his own choice for the

education of his child or ward;

(g) freedom of movement;

(h) freedom of conscience and religious belief and observance;

(i) freedom of thought and expression;

(j) freedom of association and assembly; and

(k) freedom of the press.”

84. The expression of the fundamental rights in section 4 are modelled in such a way to allow

the Court greater flexibility to “decide in a principled and rational way how the fundamental

rights and freedoms listed in the Constitution are to be applied in the multitude of different

sets of circumstances which arise in practice.”46

85. The general prohibition of discrimination in section 4 applies to all the enumerated human

rights. However, the five stated aspects of the general prohibition of race, sex, colour,

religion and origin consist of personal characteristics of the individual and but for religion,

are matters which are immutable “in the sense that they cannot be changed solely by the

choice of the individual. Clearly they go to the core identity of the person. Thus, one may

say that these five stated personal characteristics distinguish people on the basis of

inherent attributes rather than on behavioural traits. They describe more who and what a

person is, rather than how a person acts or what a person does.”47 In the context of

discrimination on the basis of any of these five characteristics:

46 Panday v Gordon [2005] UKPC 36, paragraph 22 47 Sanatan Dharma Maha Sabha of Trinidad and Tobago and others v The Attorney General of Trinidad and Tobago H.C.A. No. Cv. S. 2065/2004, page 55

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“This general prohibition against non-discrimination thus prohibits laws that

differentiate between people on the basis of their inherent personal characteristics and

attributes. A court is entitled to consider granting constitutional relief, where the claim

is that a person has been discriminated against by reason of a condition which is

inherent and integral to his/her identity and personhood. Such discrimination

undermines the dignity of persons, severely fractures peace and erodes freedom.

Courts will not readily allow laws to stand, which have the effect of discriminating on

the basis of the stated personal characteristics. Justification, reasonableness and

objective purposefulness would have to be clearly established and one would have to

carefully consider issues of proportionality and whether adequate accommodating

measures were present or available.”48

86. These observations made by Jamadar J (as he then was) were in the context of an

examination of the personal attributes of religion. There was no discussion of the meaning

of “origin” and whether such a feature of one’s identity or one’s origin can include one’s

“nationality” which equally is not a behavioural trait and describes more of “who and what

a person is rather than how a person acts”49.

87. Jamadar J’s (as he then was) insightful analysis therefore provides the starting point of

analysis, to determine whether “nationality” fits within the concept of the characteristic or

core identity of a person’s “origin”.

88. In interpreting the Constitution it must be understood that the Constitution is the supreme

law. No public authority can violate it. The Executive created by it is subject to its edict. Our

Parliament is not supreme and must defer to it. The Judiciary’s role is to interpret it and give

it life and meaning. To interpret the deliberately abstract and fundamental rights declared

in our supreme law calls for a much different analysis than that required for an ordinary act

of Parliament. It calls for an appreciation of context and vision, a synergising of past,

48 Sanatan Dharma Maha Sabha of Trinidad and Tobago and others v The Attorney General of Trinidad and Tobago H.C.A. No. Cv. S. 2065/2004, pages 55-56 49 Sanatan Dharma Maha Sabha of Trinidad and Tobago and others v The Attorney General of Trinidad and Tobago H.C.A. No. Cv. S. 2065/2004, page 5

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present and future50. To the extent that Parliament can make laws that may violate human

rights, the Courts have the final say on the interplay between the need for such laws for the

regulation of society and the rights of the individual. The Court’s task is to mediate the

tension between wide and general human rights and the needs of the society. As observed

by Lord Hoffman in Boyce and others v R [2004] UKPC 32, the courts are “the mediators

between the high generalities of the constitutional text and the messy detail of their

application to concrete problems.”51 To that extent the Constitution is an organic living

instrument “always speaking”, it was not fossilised in 196252 nor 197653. A concept such as

“origin” used in section 4 of the Constitution lends itself to evolving understandings over

time. See Boyce and others v R. There are a number of constitutional interpretation

fundamentals which assist in this task of defining the true meaning of “origin”.

Our Constitution should not be seen as an ordinary statute or an “immutable

historical instrument” See Hunter v Southam Inc [1984] 2 S.C.R. 145 “A constitution,

by contrast, is drafted with an eye to the future. Its function is to provide a

continuing framework for the legitimate exercise of governmental power and, when

joined by a Bill or a Charter of Rights, for the unremitting protection of individual

rights and liberties.... It must, therefore, be capable of growth and development

over time to meet new social, political and historical realities often unimagined by

its framers”.54 Indeed, how are our human rights to be interpreted in a society

rapidly evolving in this age of information and soon to embrace artificial intelligence

is way beyond the grasp of the “framers” of the Constitution.55

50 See Baloro and others v University of Bophuthatswana and others [1996] 1 LRC 12 51 Boyce v R [2004] UKPC 32, [2004] 3 WLR 786 at 795 52 The Independence Constitution 53 The Republic Constitution 54 Hunter v Southam Inc [1984] 2 S.C.R. 145 at page 155

55 Justice Bereaux (as he then was) in George Daniel v The Attorney General of Trinidad and Tobago HCA 393 of 2005 stated in that in approaching the interpretation of sections 4 and 5 of the Trinidad and Tobago Constitution of 1976 the courts have been guided the courts by the dicta of Lord Wilberforce in The Minister of Home Affairs v Fisher [1980] A.C. 319 where Lord Wilberforce stated that a constitution must be treated as:

“sui generis calling for principles of interpretation of its own, suitable to its character … without necessary acceptance of all the presumptions that are relevant to legislation of private law …

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The notion of “Framers of the Constitution” in our constitutional context may be a

misnomer having regard to the poor public participation in making and endorsing

the early Constitution and the utilitarian approach to adopting the Constitution. See

Fundamentals of Caribbean Constitutional Law, Tracy Robinson, Arif Bulkan, Adrian

Saunders J, paragraph 3-004. For this reason it may at times be somewhat unhelpful

in interpreting our Bill of Rights to inquire what was “the intention of the framers”.

The framers would have had no intention to cement our feet in the immediacy of

the post-colonial society. Mr. Ellis Clarke in his contributions on the debates on the

draft constitution remarked: “if one wished to take without amendment the

Canadian Bill of Rights we would be happy to take it, and if one wished to take

without any amendment another country’s system of rights we would be happy to

take it. But if one wishes to provide that in the year of 1962 no community in the

world has yet to find the perfect and we then all I say is have a little patience with us

if we have not been able to do it in this draft constitution.”56 Later he said “it is

impossible to sit down and forecast exactly all the circumstances which may possibly

arise in the next say 50 years and which may require legislation of one sort or

another that would either in fact infringe these rights or appear to do so. And

therefore when one is drafting these rights one attempts to set out the rights that

are generally recognised as being rights of paramount importance”57 The learned

authors of the Fundamentals of Caribbean Constitutional Law pointed out that the

broad and general language of the Trinidad and Tobago Constitution has proven to

be a more adaptable model to changing needs: “Time and history have vindicated

the Trinidad and Tobago model as more vibrant and responsive than the

Justice Bureaux further cited with approval that dicta of Jackson J.A. in Inland Revenue Commissioner v Lilleyman & others (1964) 7 W.I.R. 506:

“a Constitution must not be construed in any narrow or pedantic sense. The words used are necessarily general and their full import and true meaning can often only be appreciated when considered as the years go on, in relation to the vicissitudes of fact which from time to time emerge. It is not that the meaning of the words changes but changing circumstances illustrate and illuminate the full import of that meaning.”

56 Transcript of the notes of the contributions at Queens Hall on the 1962 Constitution 57 Transcript of the notes of the contributions at Queens Hall on the 1962 Constitution

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conventional model..the conventional model does not invite as much judicial

participation in fleshing out the details of the rights.”58 Such a view has been

endorsed by the Privy Council in Matadeen v Pointu and others [1999] 1 A.C. 98

that interpreting broad and liberal rights so framed confers unto the Court the

power to make value judgments on rights and not to be quibbled within the corners

of interpreting literal meanings. See also the recent value judgment of the High

Court of Saint Christopher and Nevis in Ras Sankofa Maccabbee v The

Commissioner of Police and The Attorney General of Saint Christophere and Nevis

Claim No. SKBHCV2017/0234 decriminalising the use of marijuana for adults in the

Rastafari religion which is connected to their right to freedom of conscience and

religion and right to privacy. In Jason Jones v The Attorney General of Trinidad and

Tobago and Interested Parties CV2017-00720 Rampersad J was engaged in giving

life to the full meaning of the rights to privacy and equality in declaring the law

criminalising buggery was unconstitutional and offensive to consenting adults and

members of our society.

There is a strong normative content in the preamble of the Constitution which can

serve as an aid to constitutional interpretation of human rights. It provides part of

the wider context. Indeed, it is visionary and encapsulates the architecture of the

society to which we subscribe as a democratic State. Wit J described the preamble

as filling “the Constitution with meaning” and breathing “life into the clay of the

more formal provisions in that document”.59

By its very nature human rights are to be given broad interpretation. Our

fundamental rights, affirmed and declared rights which shall continue to exist. It did

not create human rights. It tried as far as possible in words to capture the essence of

a free humanity in a democratic society and a generous interpretation is needed

bearing the character, form and origin of these rights. See Minister of Home Affairs

58 Fundamentals of Caribbean Constitutional Law, Tracy Robinson, Arif Bulkan, Adrian Saunders 59 The Attorney General, Superintendent of Prisons and Chief Marshall CCJ Appeal No. CV 2 of 2005, paragraphs 18 and 19

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v Fisher [1979] 44 WIR 107. They express high ideals and it is the Court’s task to

“flesh out and give full meaning to these rights”. Watson v R [2004] UKPC 34. Any

overly technical, legalistic or narrow approach to interpretation can easily erode the

purpose of this chapter of human rights and belittle the vision of our humanity.

Huntley v Attorney General [1994] 46 WIR 218.

It calls for a generous interpretation avoiding the austerity of tabooed legalism. See

Minister of Home Affairs v Fisher, page 113, paragraphs e-j:

“It is possible that, as regards the question now for decision, either method

would lead to the same result. But their lordships prefer the second. This is in no

way to say that there are no rules of law which should apply to the

interpretation of a Constitution. A Constitution is a legal instrument giving rise,

amongst other things, to individual rights capable of enforcement in a court of

law. Respect must be paid to the language which has been used and to the

traditions and usages which have given meaning to that language. It is quite

consistent with this, and with the recognition that rules of interpretation may

apply, to take as a point of departure for the process of interpretation a

recognition of the character and origin of the instrument, and to be guided by

the principle of giving full recognition and effect to those fundamental rights and

freedoms with a statement of which the Constitution commences.”

See also Reyes v Queen [2002] 2 AC 235 at page 246, E to F:

“As in the case of any other instrument, the court must begin its task of

constitutional interpretation by carefully considering the language used in the

Constitution. But it does not treat the language of the Constitution as if it were

found in a will or a deed or a charter party. A generous and purposive

interpretation is to be given to constitutional provisions protecting human rights.

The court has no licence to read its own predilections and moral values into the

Constitution, but it is required to consider the substance of the fundamental

right at issue and ensure contemporary protection of that right in the light of

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evolving standards of decency that mark the progress of a maturing society:

see Trop v Dulles 356 US 86, 101. In carrying out its task of constitutional

interpretation the court is not concerned to evaluate and give effect to public

opinion, for reasons given by Chaskalson P in S v Makwanyane1995 (3) SA 391,

431, para 88:

"Public opinion may have some relevance to the inquiry, but, in itself, it is

no substitute for the duty vested in the courts to interpret the

Constitution and to uphold its provisions without fear or favour. If public

opinion were to be decisive, there would be no need for constitutional

adjudication. The protection of rights could then be left to Parliament,

which has a mandate from the public, and is answerable to the public for

the way its mandate is exercised, but this would be a return to

parliamentary sovereignty, and a retreat from the new legal order

established by the 1993 Constitution. By the same token the issue of the

constitutionality of capital punishment cannot be referred to a

referendum, in which a majority view would prevail over the wishes of

any minority. The very reason for establishing the new legal order, and

for vesting the power of judicial review of all legislation in the courts, was

to protect the rights of minorities and others who cannot protect their

rights adequately through the democratic process. Those who are

entitled to claim this protection include the social outcasts and

marginalised people of our society."

It is useful to pay regard to the climate of international human rights having regard

to the fact that the Constitution was birthed from the existing climate at that period

of time, in particular, adopting the Canadian Charter 1965 as a constitutional model

of universal human rights. The traditions, usages and norms of the democratic world

and the common subscription to human rights forms a reliable and verifiable pool of

wisdom when the task of interpretation calls for philosophising on the nature,

breadth and width of a human right. R v Hughes (2001) 60 WIR 156. It is legitimate

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in construing such a living instrument then to consider “universal normative

developments, prevalent moral and political theories and contemporary standards

and values typically using international human rights standards as an index.” See R v

Lewis [2007] CCJ 3 (AJ). Indeed Justice Saunders remarked in R v Hughes “we would

be embarking upon a perilous path if we began to regard the circumstances of each

territory as being so peculiar, so unique, as to warrant a reluctance to take into

account the standards adopted by humankind in other jurisdictions.”60 See also the

innovative approaches adopted by the Indian Supreme Court in Mohammed Salim v

State of Uttarakhand and others Writ Petition (PIL) No.126 of 2014.

Recognising the delicate balance that exists between the three arms of the State,

the presumption of the constitutionality of laws can be viewed as a form of judicial

restraint or deference in reviewing legislation. It by no means should be interpreted

as a principle where the Courts bow to the wishes of the legislature or accepts

without demur the legitimacy of an act where the infringement of human rights are

being alleged. As an application of the burden of proof or canon of construction, the

Court must always be alive of its primary function of upholding the rule of law and to

give the supreme law its maximum effect. While it is presumed that Parliament

would not have deliberately set out to violate rights, the authorities weigh in the

balance two competing concepts that the constitutionality of an enactment is

presumed unless it is shown to be unconstitutional and on the other hand, that the

Constitution must be given a broad and purposive construction. In my view, the

latter is not circumscribed by the former. That is, in giving life to the Constitution to

the full breadth of the human rights protected by its enactment, a Court should not

feel constrained to point out the unconstitutionality of an enactment on a

presumption that it is constitutional. See Grant v The Queen [2007] 1 AC 1, Suratt

and others v Attorney General of Trinidad and Tobago [2007] UKPC 55, Mootoo v

Attorney General of Trinidad and Tobago [1979] 1 WLR 1334 , De Freitas v.

Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing

60 R v Hughes (2001) 60 WIR 156, paragraph 214

https://www.lexisnexis.com/uk/legal/search/enhRunRemoteLink.do?A=0.2793390585948353&service=citation&langcountry=GB&backKey=20_T24294189833&linkInfo=F%23GB%23AC%23vol%251%25sel1%252007%25page%251%25year%252007%25sel2%251%25&ersKey=23_T24294189826

https://www.lexisnexis.com/uk/legal/search/enhRunRemoteLink.do?A=0.3032915869962789&service=citation&langcountry=GB&backKey=20_T24294189833&linkInfo=F%23GB%23WLR%23vol%251%25sel1%251979%25page%251334%25year%251979%25sel2%251%25&ersKey=23_T24294189826

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[1999] I A.C. 69, Public Service Appeal Board v Maraj [2010] UKPC 29.

89. Adopting these principles as a compass for direction in liberalising and contextualising the

word “origin” in the Constitution, the Defendant’s references to other acts of Parliament in

its uses of the word nationality and citizenship can be of limited assistance. I approach the

meaning from a holistic overview of its literal meaning, context, jurisprudential linguistic

and sociological influences.

90. Literal meaning: The Meriam-Webster dictionary defines “origin” as one’s “ancestry/

parentage” or the “rise, beginning or derivation from a source.” It is also described as “the

point at which something begins or rises or from which it derives.” The example given is the

phrase “she is of French origin” or “was of humble origin”.

91. “Nationality” is defined as “a legal relationship involving allegiance on the part of an

individual and usually protection on the part of the state” or “membership in a particular

nation”.

92. Black’s Law Dictionary61 defines nationality as follows:

“The relationship between a citizen of a nation and the nation itself, customarily

involving allegiance by the citizen and protection by the state; membership in a nation.

3. The formal relationship between a ship and the nation under whose flag the ship

sails.”

93. While these definitions make a distinction between nationality and national origin, there

has been no judicial interpretation of the term “origin” itself as used in section 4 of our

Constitution. In our local legislation there is limited assistance to interpret “origin”. Trinidad

and Tobago’s Equal Opportunity Act for instance (which provides an additional layer of

protection to the anti-discrimination framework) prohibits discrimination against any

person on the grounds of “status”, which is defined in section 3 of the Act as: a) the sex; (b)

the race; (c) the ethnicity; (d) the origin, including geographical origin; (e) the religion; (f)

the marital status; or (g) any disability of that person (NB. “race”, in relation to a person,

means a group of persons of common ethnic origin, colour or of mixed race). In its work, 61 Black’s Law Dictionary, 7th Edition

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however, the Equal Opportunities Commission has noted discrimination on the ground of

“nationality”. See its report on discrimination (2015).

94. Context and Structure: Originally the structure and content of the chapter on fundamental

human rights and freedoms in Trinidad and Tobago’s Constitution was modelled on the

1960 Canadian Bill of Rights (unlike the majority of other constitutions of the English-

speaking Caribbean which were modelled on the European Convention on Human Rights).

The general non-discrimination prohibition in section 1 of the Canadian Bill of Rights is

almost an exact carbon copy of our section 4, except that the term “national origin” is used

in the Canadian formulation62. Curiously, the framers of Trinidad and Tobago Constitution

uniquely sought to use the word “origin” in the face of many incantations at that time of the

use of the words “national origin”, “national and social origins”, “racial origin” in other

Constitutions or Bill of Rights. Why would the framers not repeat the formula? I think the

answer is obvious. As Sir Hugh Wooding commented on the guaranteed freedoms of the

Constitution, they are broad and liberal. The framers adopted words which are generic and

inclusive to capture the inalienable rights of man. It provides for the present and the future

and therefore must be given a life of its own by Courts in our evolving social order. Moving

then from the shackles of constitutional “originalism”, the word itself “origin” should

encompass any aspect of one’s personal characteristic of association and belonging. It

certainly includes “national and social origins”.

95. However, in decided cases a distinction is further drawn between national origin and

nationality. Senior Counsel for the Defendant was at pains to stress that the Court should

not conflate the word “origin” even if it can mean “national origin” to mean “nationality”.

96. Jurisprudence: Some important cases makes the distinction between nationality and

national origins. In London Borough of Ealing v Race Relations Board [1972] AC 342 (HL)

62 “Recognition and declaration of rights and freedoms

1 It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely…”

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the House of Lords considered the meaning of ‘national origins’ within the UK Race

Relations Act 1968 and held that discrimination against a Polish man because he did not

have British nationality was not discrimination on the ground of ‘national origins’. Their

Lordships based their decisions on inter alia the use of the term ‘nationality’ elsewhere in

the Act, the long title of the Act and the mischief at which the Act was aimed. Interestingly,

the UK Parliament subsequently amended their legislation to include “nationality” to

remedy the effects of this decision. The context and history of this case in interpreting an

Act of Parliament and Parliament’s subsequent rectification to broaden its language does

not help the Defendant. It usefully demonstrates that given the width of our constitutional

interpretative lens, nationality can indeed fall within the ambit of the term “origin” used in

our supreme law.

97. In the Australian decision of Macabenta v Minister for Immigration and Multicultural

Affairs [1998] 52 ALD 8 the Court considered a claim of discrimination on the ground of

“national origin” under section 19 of the Racial Discrimination Act 1975. “Nationality” was

interpreted as equivalent to citizenship but different from “national origin”. The conclusion

that the concept of “national origin” did not include “nationality” was arrived at on a

holistic approach to the interpretation of that legislation to arrive at its true meaning:

“The object and purpose of the treaty are, in our opinion, sufficiently clear. They can be

seen to be the elimination of racial discrimination and the provision of guaranteed rights

without distinction as to race, colour, or national or ethnic origin. The core concern is

racial discrimination.”63

98. The quest in the international treaties in using “national or social origin” was to

“capture the somewhat elusive concept of race.… If by reference to matters of national

origin one can expose a racially-discriminatory law, then the Convention will have served its

purpose”64 Nationality like citizenship bears absolutely no connection to race.

99. Again, in that case, the interpretation was with respect to an ordinary Act of Parliament and

63 Macabenta v Minister for Immigration and Multicultural Affairs [1998] 52 ALD 8 at 15 64 Macabenta v Minister for Immigration and Multicultural Affairs [1998] 52 ALD 8 at 15-16

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not a constitution. However, interestingly, in the cases in the EU, the concept of national

origin is associated with race. This necessitated the need to recognise “nationality” as a

separate ground of discrimination.

100. In Thompson v Bermuda Dental Board 73 WIR 122 (PC) the Board had to consider the

meaning of ‘place of origin’ and ‘national origins’ within the Bermuda Human Rights Act

1981. It was held that ‘national origins’ included but was not limited to present (and past)

nationality or citizenship. Their Lordships considered the House of Lords ruling in London

Borough of Ealing but distinguished it based on, inter alia, the histories and overall scheme

of the pieces of legislation under consideration. Thompson therefore makes the point that

nationality is one dimension of the word “origins” which can carry a variety of concepts

such as national origins, social origins, racial origins.

101. Sociological Factors: Who is this St Lucian?: I have already noted in my previous

judgment65 that Ms. Hadeed can be described colloquially as a Caribbean woman. She is of

Grenadian birth and is a citizen of St. Lucia. She has been living here since 2012. It is clear

that she is not a Trinidadian or Tobagonian or as we colloquially express “Trinbagonian” and

thus cannot practise law solely in the strength of her LPC pursuant to section 15(1A). That is

reserved for those who are “Trini to the bone”66. She is not from here.

102. Unlike in 1976 the birth of our Republic Constitution, with the passage of the RTC, the

concept of a single market and economy with fundamental community rights of free

movement of labour and the right to establishment makes the question of discrimination on

the ground of nationality decidedly insular and contrary to the fundamentals of the

Caribbean Community. In the evolving times of our present Caribbean to demean, to confer

disadvantageous treatment to a non-national is in a large measure a great disrespect to the

identity of our regional nationals as it is a disservice to the concept of a Caribbean citizenry.

103. As revealed in our calypso and literature the concept of “the small island” carried heavy

prejudices. It showed the insularity between island nations and the prejudices of larger

65 Dianne Jhamilly Hadeed v The Attorney General of Trinidad and Tobago and Interest Parties CV2018-02726, paragraph 13 66 David Rudder “Trini to De Bone”

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island nations looking down on “the boat people” of the smaller islands immigrants. The

Late Theophilus Woods67 (also known as Small Island Pride) in his calypso “Federation

(1956)” demonstrates this inherent prejudice in nationality and origin something which it

was hoped would have been erased with federation.

“Lillian, change your plan

Next year is Federation

There’ll be no discrimination

Between a Trinidadian and a Grenadian

The Grenadian said, “Girl Federation

Is a combination of generation

Because mih mudder was a Barbadian

She marry to mih fadda, a Trinidadian

I make two children, one for a Chinee man

And they say the next one is a St. Lucian.

Try your best and contact the generation

And the answer to that is Federation”

104. Philosophically there is a close association of one’s identity to one’s nationality. The

Defendant referred to Amartya Sens famous works on “Identity and Violence” and “The

Idea of Justice”. Sens’ critique is quite enlightening and useful. Generally, seen as a

response to the work of John Rawls Theory of Justice, Sen postulates that as humans we can

at any one time assume multiple identities. Associations with deep seated influences.

“While "a Hutu labourer from Kigali may be pressured to see himself only as a Hutu and

incited to kill Tutsis . . . he is not only a Hutu, but also a Kigalian, a Rwandan, an African,

a labourer and a human being." Sen invokes the myriad identities within each individual.

Because all of us contain multitudes, we can choose among our identities, emphasizing

those we share with others rather than those we do not. Sen acknowledges, as he must,

that such choices will be limited by external circumstances. Still, to concede that identity

67 Mr. Theophilus Woods was born in Grenada but settled in Trinidad.

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choices are constrained is a far cry from the claim that identity is destiny.”68

105. In Ethnicity and Identity in the Caribbean: Decentering a Myth, Ralph R. Premdas, it

was observed at page 45:

“The national identity, where it exists, constitutes the highest attachment of group

loyalty, superseding rival claims of locality and/or overseas community. “I am a

Jamaican, Cuban, or Martiniquean first and foremost” is the clarion call of nationalists. It

is important to underscore the point that a national identity is not constituted of

persons who are related on the basis of face-to-face interpersonal familiarity. As

Benedict Anderson pointed out, the emergence of a collective national sentiment owes

its existence to available means of mass communications which have made it possible to

craft a myth of common descent and community. The fact that such a sentiment is a

creature of a contingent modern event does not in any way diminish the potency of the

beliefs of the nationalist.………The claim of a national identity is a major source of strife

in the plural societies of the Caribbean.”

106. Shanique Myrie v The State of Barbados [2013] CCJ 3 (OJ) serves as an important

example of the value of national identity in the region. Ms. Myrie, a Jamaican sought entry

into Barbados at the Grantley Adams International Airport. She was subjected to insults

based on her nationality and a demeaning body cavity search by customs officials. She had

complained of profiling and discrimination against Jamaicans as drug mules. The CCJ made a

powerful statement of the right of unrestricted access of the Caribbean person into the

space of another CARICOM nation. The badges of nationality are no longer an obstacle for

the enjoyment of rights in the single market. In dealing with Ms. Myrie’s right to

unrestricted access to Barbados, save for defined and legitimate reasons, consistent with

the RTC, the CCJ set out the parameters of conduct important for the single space and

underscores the rights to be afforded to CARICOM nationals:

The right of establishment in the provision of services presume of necessity the right

68 We contain multitudes, review by Kenji Yoshina of “Identity and Violence: The Illusion of Destiny” by Amartya Sen 14th May 2006

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of movement of community nationals.69

The goal of free movement of CARICOM nationals is envisioned and achieved by the

RTC.70

CARICOM nationals are entitled to assume that the arrangements put in place by

these Caribbean instruments enhances their sense that they belong to and can move

in the Caribbean community.71

Implementation of the idea of a community of States entails the creation of a new

social order and certain self-imposed limits to particular aspects of State

sovereignty.

Community law and the limits it imposes on member States must take precedence

over national legislation.72

69 Shanique Myrie v The State of Barbados [2013] CCJ 3 (OJ), paragraph 60 provides:

“[60] But this is not all. Both the rights of establishment and of the provision of services presume of necessity the right of movement of Community nationals. Thus, Article 34 RTC provides that COTED shall, inter alia require the Member States “to remove all restrictions on the movement of managerial, technical and supervisory staff of economic enterprises” and “to ensure that nationals of one Member State have access to land, buildings and other property situated in the territory of another Member State, other than for speculative purposes or for a purpose potentially destabilizing to the economy, on a non-discriminatory basis bearing in mind the importance of agriculture for many national economies.””

70 Shanique Myrie v The State of Barbados [2013] CCJ 3 (OJ), paragraph 62 provides: “[62] In light of the above, it is clear that the 2007 Conference Decision is just another step in furthering a fundamental Community goal of free movement that is not only envisioned by the RTC but in some instances already achieved by it. The Decision takes this goal beyond the defined group of Community nationals who are seeking economic enhancement in one way or the other and broadens it to Community nationals in general. It clarifies one aspect of the goal in that it gives every Community national the right to enter any Member State and stay there for up to six months. The right conferred is expressed as an entitlement to “an automatic stay” or “a definite entry” of six months upon arrival.”

71 Shanique Myrie v The State of Barbados [2013] CCJ 3 (OJ), paragraph 63 provides: “[63] Given the historic background of this aspect of free movement, a background that can be found both in the well-known report of the West Indian Commission, Time For Action, 7 and in several CARICOM reports, Community nationals are entitled to assume that the purpose of the 2007 Conference Decision is indeed “to enhance their sense that they belong to, and can move in, the Caribbean Community” and in the context of the relevant provisions of the RTC set out in the Annex to this judgment, the full extent of the right is that both entry and stay of a Community national in another Member State must not only be “definite” but also “hassle free” or “without harassment or the imposition of impediments”. 8 These are essential elements of the right.”

72 Shanique Myrie v The State of Barbados [2013] CCJ 3 (OJ), paragraph 69 provides: “[69] Implementation of the very idea and concept of a Community of States necessarily entails as an exercise of sovereignty the creation of a new legal order and certain self-imposed, albeit perhaps relatively modest, limits to particular areas of State sovereignty. Community law and the limits it imposes

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Although Ms. Myrie’s claim failed on the evidence to prove discrimination under

Caribbean community law, the CCJ recognised that discrimination in the sphere of

Caribbean community law occurs where there is treatment that is worse or less

favourable than is accorded to a person whose circumstances are similar to the

complainant except for that person’s nationality with no objective and reasonable

justification for the difference in treatment.

107. Developing Norms and International Sources: How one perceives oneself is very much

an attribute of one’s identity and character. The Caribbean view of nationhood may well be

a Caribbean community which has attempted a unique creation of respect of sovereignty

yet pooling the region’s resources in a joint regional exercise. In such a climate, insularity

and discrimination on the ground of nationality has significant drawbacks to achieving the

full potential of the RTC as indeed the CLE. In this context, it is important to note that the

RTC and CLE Agreement have been incorporated into local law. One of the provisions of the

RTC as discussed in Shanique Myrie recognises the prohibition of discrimination on the

ground of nationality.73 Article 7 of the RTC states “Within the scope of application of this

Treaty and without prejudice to any special provisions contained therein, any discrimination

on grounds of nationality only shall be prohibited.”

108. Drawing further from recognised sources leading to the experiment of a Caribbean

community, Sir Shridath Ramphal commented on the concept of nationality in “Time for

Action: Report of the West Indian Commission”, pages 32-33:

“There are of course some paths we do not seek to pursue. Our vision does not include

a monolithic heavily centralised West Indian state seeking uniformity in all things. Far

from it, such construction would offend the West Indian instinct for individuality and

appreciation of diversity and would by no means be practicable. Now would it come

near to how we conceive the future of West Indian nationality? It is a matter of building

on the Member States must take precedence over national legislation, in any event at the Community level. It follows from the above that a refusal on the basis of “undesirability” may be based on national law and on Community law, with the proviso that where national law does not conform with the parameters laid down by Community law, it will be the latter that ultimately must prevail.”

73 See the preamble of the RTC which provides “Resolved to establish conditions which would facilitate access by their nationals to the collective resources of the Region on a non-discriminatory basis”.

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out of a sense of belonging which already exists, intuition for practical action where

there is a community of interests in acting together in a society where the values and

the processes of democracy are secure. This would be nationalism which derives

strength not weaknesses from cultural differences within that shared community of

interests, it would be a nationalism totally unaggressive in its external ambitions and

insisting not at all on conformity within. It could indeed be nationalism which sets an

example to the rest of the world by proving a West Indian model of how various

peoples holding democracy sacrosanct can live and work together successful and in

amity.”

109. Further afield, there is the growing consensus in Europe prohibiting discrimination on

the grounds of nationality. So that any differentiation based solely in the grounds of

nationality must be justified by the contracting State. Internationally, discrimination on the

ground of national origin and nationality is viewed as a feature of one’s identity. Article 14

of the ECHR, which prohibits discrimination on an open-ended list of enumerated grounds

(and on which the majority of Anglophone Caribbean constitutions are modelled) provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured

without discrimination on any ground such as sex, race, colour, language, religion, political

or other opinion, national or social origin, association with a national minority, property,

birth or other status.” Article 18 of the Treaty on the Functioning of the European Union

(TFEU) provides: “Within the scope of application of the Treaties, and without prejudice to

any special provisions contained therein, any discrimination on grounds of nationality shall

be prohibited. The European Parliament and the Council, acting in accordance with the

ordinary legislative procedure, may adopt rules designed to prohibit such discrimination.”

The European Social Charter of 1961 recognised the prohibition of discrimination on the

ground of race, colour, sex, religion, political opinion, national extraction or social origin74.

Importantly, the European Law confirms the principle of proportionality to justify a

difference in treatment between nationals.

110. In Luczak v Poland Application no.77782/01, a French national of Polish origin

74 See the Preamble of the European Social Charter of 1961

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complained of being deprived of benefits under a social security scheme based on his

nationality. Although the European Courts recognise a concept of “margin of appreciation”

enjoyed by contracting parties” in assessing the justification for a difference in treatment,

the learning of the ECJ is important with respect to its view that different treatment on the

ground of nationality raises the inference of discrimination unless there is a justification for

the difference in treatment:75

“52. The Court reiterates that very weighty reasons would have to be put forward by the

respondent Government in order to justify a difference of treatment based, as in the

present case, exclusively on the ground of nationality. It considers that the creation of a

particular social security scheme for farmers that is heavily subsidised from the public

purse and provides cover to those admitted to it on more favourable terms than a

general social security scheme could be regarded as pursuing an economic or social

strategy falling within the State's margin of appreciation. On the other hand, legislation

regulating access to such a scheme must be compatible with Article 14 of the

Convention. Where it is shown that there are reasonable and objective grounds for

excluding an individual from the scheme, the principle of proportionality will then come

75 Luczak v Poland Application no.77782/01, paragraphs 47-48 states:

“47. For the purposes of Article 14 a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification – in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I, § 39; Larkos v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999-I; and Stec and Others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006-...). 48. The scope of this margin will vary according to the circumstances, the subject matter and the background (see Petrovic v. Austria, judgment of 27 March 1998, Reports 1998-II, § 38). As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention (see Gaygusuz v. Austria, judgment of 16 September 1996, Reports 1996-IV, p. 1142, § 42, and Koua Poirrez v. France, no. 40892/98, § 46, ECHR 2003-X). On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy (see, for example, James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, § 46, and National and Provincial Building Society and Others v. the United Kingdom, judgment of 23 October 1997, Reports 1997-VII, § 80). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature's policy choice unless it is “manifestly without reasonable foundation” (ibid.).”

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into play. In particular, even where weighty reasons have been advanced for excluding

an individual from the scheme, such exclusion must not leave him in a situation in which

he is denied any social insurance cover, whether under a general or a specific scheme,

thus posing a threat to his livelihood. Indeed, to leave an employed or self-employed

person bereft of any social security cover would be incompatible with current trends in

social security legislation in Europe.”76

111. See also the application of the principle of proportionality which justified the difference

in treatment on the ground of nationality in Abdulaziz and others v UK (App No 9214/80,

9473/81, 9474/81.

112. Interestingly, Thieffry v. Conseil de l'Ordre des Avocats A la Cour de Paris (Paris Bar

Council (Case 71/76) the ECJ pointed out that it is the task of professional bodies in

determining the question of qualification and recognition to ensure that its provisions are

treaty compliant. In this case, the problem simply evident is that section 15(1A) is not

compliant with the CLE Agreement and CLE Act.

113. More specifically, certain authorities in the United States of America (USA) and the

Commonwealth demonstrates discrimination on the ground of nationality as viewed as one

of personhood.

114. In Graham v Richardson 403 U.S. 365 (1971), Mr Justice Blackmun observed:

“..classifications based on alienage, like those based on nationality5 or race,6 are

inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime

example of a ‘discrete and insular’ minority (see United States v. Carolene Products Co.,

304 U.S. 144, 152—153, n. 4, 58 S.Ct. 778, 783—784, 82 L.Ed. 1234 (1938)) for whom

such heightened judicial solicitude is appropriate.”

115. In Law Society British Columbia v Andrews [1989] 1 S.C.R. 143 the judges of the

Supreme Court of Canada were quite clear that discrimination on the ground that the

person is not a national violates the equality rights and it discriminates against them on the

ground of a personal characteristic of their non-citizen status. I do not understand Andrews 76 Luczak v Poland Application no.77782/01, paragraph 52

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to be interpreted as because it is a “shut out case” its entire ruling is irrelevant. Indeed,

regardless of context, discrimination on the ground of nationality was viewed as a

discrimination on the ground of personal characteristics. A remarkable statement was made

by Wilson J which is deserving of repeating:

“Relative to citizens, non-citizens are a group lacking in political power and as such

vulnerable to having their interests overlooked and their rights to equal concern and

respect violated. They are among "those groups in society to whose needs and wishes

elected officials have no apparent interest in attending": see J. H. Ely, Democracy and

Distrust (1980), at p. 151. Non-citizens, to take only the most obvious example, do not

have the right to vote. Their vulnerability to becoming a disadvantaged group in our

society is captured by John Stuart Mill's observation in Book III of Considerations on

Representative Government that "in the absence of its natural defenders, the interests

of the excluded is always in danger of being overlooked ...." I would conclude therefore

that non-citizens fall into an analogous category to those specifically enumerated in s.

15. I emphasize, moreover, that this is a determination which is not to be made only in

the context of the law which is subject to challenge but rather in the context of the

place of the group in the entire social, political and legal fabric of our society. While

legislatures must inevitably draw distinctions among the governed, such distinctions

should not bring about or reinforce the disadvantage of certain groups and individuals

by denying them the rights freely accorded to others.”77

116. More importantly, La Forest J recognised nationality as an immutable aspect of one’s

character, one that is not easily changed and a characteristic of personhood:

“67 As I have indicated, however, this issue does not arise here. For we are concerned in

this case with whether or not the legislation amounts to discrimination of a kind similar to

those enumerated in s. 15. It was conceded that the impugned legislation does distinguish

the respondents from other persons on the basis of a personal characteristic which shares

many similarities with those enumerated in s. 15. The characteristic of citizenship is one

77 Law Society British Columbia v Andrews [1989] 1 S.C.R. 143 at 152

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typically not within the control of the individual and, in this sense, is immutable.

Citizenship is, at least temporarily, a characteristic of personhood not alterable by

conscious action and in some cases not alterable except on the basis of unacceptable

costs.

68 Moreover, non-citizens are an example without parallel of a group of persons who are

relatively powerless politically, and whose interests are likely to be compromised by

legislative decisions. History reveals that Canada did not for many years resist the

temptation of enacting legislation the animating rationale of which was to limit the

number of persons entering into certain employment. Discrimination on the basis of

nationality has from early times been an inseparable companion of discrimination on the

basis of race and national or ethnic origin, which are listed in s. 15. Professor Ivan L. Head

traces the history of this intolerance in Canada, from early common law restrictions on

inheritance and landowning to more modern developments; see "The Stranger in Our

Midst: A Sketch of the Legal Status of the Alien in Canada", [1964] Can. Yearbook of

International Law 107. Especially germane to this issue are the many instances Professor

Head recites of provincial legislation aimed at reducing the opportunities available to

aliens in the workplace (pp. 127-28). Since some impediment to these strategies existed

by reason of the federal legislative power over naturalization and aliens (see Union

Colliery Company of British Columbia v. Bryden, [1899] A.C. 580), the provinces had

recourse to a number of devices to achieve its objectives.

Thus, as Head points out at p. 128, "inclusion on the voter's list became a prerequisite for

all sorts of economic activity: “for admission to professional societies, for obtaining land

logger's licences; for obtaining a beer licence." Restrictions regarding professions and

trades were not limited to the legal profession; they extended to pharmacists,

optometrists, bankers and others.”

117. I cannot therefore accept the argument of the Defendant that nationality bears no

aspect of an immutable characteristic, it is not part of one’s identity. There is nothing

further from the truth. Our songs, our poems, our literature are littered with nationalism.

There is pride in being “Trinidadian”. We seek around the world in our diaspora for

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nationals willing to return to contribute to our society. It is an indelible part of the person,

who we are, it is part of us. The fact that we can change allegiance to another State does

not for the moment remove the fact that we are who we are at a certain point in time.

Identities can change but it is no less immutable, as Jamadar J recognised with religion. In

any event, one can change nationality but still be of Trinidadian origin. It is a distinction

without a difference. As seen above the badge of nationalism still carry certain stigmas even

in the Caribbean which an enlightened society should strive to eliminate.

118. There is no question here of Ms. Hadeed’s competence, character or general fitness.

The sole basis for disqualification is her status as a non-national, an alien, a “non-belonger”.

From the submissions of the Defendant stridently defending the right of citizens of one

nation to its own unique short cut to the legal practice “to preserve their own” made the

differentiation even more painful. It is ironic that in the search to become a member of a

legal profession whose objects are to uphold the rule of law would there be implicit in any

of its pathways of admission to that noble profession body a rule which discriminates,

segregates and makes a suspect classification on the grounds of nationality.

119. To say that nationality is excluded from the concept of the constitutional concept of

“origin” because it is missing the qualification “national” or that it cannot include reference

to one’s association to a State is linear and does not comport with the principles of

constitutional interpretation. Further, in keeping with the broad and generous

interpretation appropriate to constitutional interpretation, and the very general nature in

which the general prohibition and fundamental rights guarantees were drafted, “origin” as

used in section 4 is broad enough to include place of origin/ geographic origin, national,

social or ethnic origins and nationality.

120. In any event, whether nationality is a core feature of identity and falls within the

definition of “origin” or is a sufficiently personal characteristic of an individual which abhors

discrimination, there can be no denial by the Defendant or Interested Parties that the

distinction between national and non-nationals places an additional burden on a non-

national to seek admission to the law school either to go through the UWI route or write an

entrance exam or await additional years to be called to the Bar in England. In reality, this

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case is not so much about whether there is differentiation or discrimination but whether

such differentiation between nationalities can be objectively justified.78 In the third part, I

examine the test for discrimination and the intersection of objective justification and

proportionality.

PART III INEQUALITY AND DISCRIMINATION

“One of the great, great, great tasks of this time is to understand the other, to live with

him, or to accept him. And I will claim for me and for you and for all, the right to

opaqueness, and to opacité. You can be what you are and I don’t need to understand that,

or to reduce you to a transparency, to live with you or love you or accept you.I think that

will be, must be, my conception of the epic, of the rules of the epic—that my identity is not

the root identity but a relation identity, and my opaqueness should be accepted by you

and your opaqueness by me….” Conversations with Derek Walcott

121. Equality is a dynamic concept. It is antithetic to arbitrariness. It is an important pillar to

the rule of law.

“…equality and arbitrariness are sworn enemies; one belongs to the rule of law in a

republic while the other, to the whim and caprice of an absolute monarch. Where an act

is arbitrary it is implicit in it that it is unequal both according to political logic and

constitutional law and is therefore violative of article 14…. State action must be based

on …relevant principles applicable alike to all similarly situate and it must not be guided

by any extraneous or irrelevant considerations because that would be denial of

equality.”79

122. What is equality is a protean subject. “Every strongly held theory or conception of

equality is at once psychology, an ethic, a theory of social relations, and a vision of the good

society.”80 Equality is a comparative concept. The condition of one may be attained or

discerned through comparison with the conditions of others. But difference in treatment

78 See paragraph of the Defendant’s written submissions filed 17th June 2018 79 Union of India v Tulsiram Patel [1985]Supp. 2 SCR 131 (at 231) Madon J, citied with approval by Hamel-Smith JA in Central Broadcasting Services Ltd and Sanatan Dharma Maha Sabha of Trinidad and Tobago v The Attorney General of Trinidad and Tobago CvA. No. 16 of 2004 paragraph 22 80 Equality of Opportunity and Beyond, John Schaar

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does not necessarily result in inequality. Indeed, identical treatment may also lead to

inequality. “It was a wise man who said that there is no greater inequality than the equal

treatment of unequals.”81

123. The subject has already received comprehensive treatment from Jamadar J (as he then

was) in Maha Sabha to Lady Hale in Annissa Webster and others v The Attorney General of

Trinidad and Tobago [2015] UKPC 10. According to Rawls’ theory of social justice, not all

people can be treated equally. The word “discrimination” is found in the general application

of section 4, however, the specific constitutional rights that deal with discrimination are the

inequality provisions of sections 4(b) and 4(d) preserving our equality before the law and

equality of treatment by a public authority. Both are separate concepts but at the same

time governed by the general prohibition of discrimination. Discrimination itself is a loaded

word and may not arise in every differentiation and classification. Justice Jamadar (as he

then was) provides a comprehensive definition of discrimination which discusses adverse

effect and indirect discrimination:

“Discrimination may therefore be described as a distinction, whether intentional or not,

but based on grounds relating to personal characteristics, which has the effect of

unfairly imposing burdens, obligations, or disadvantages not imposed on others in a

comparable position, or which unfairly withholds or limits access to opportunities,

benefits or advantages available to others in a comparable position in the society.”82

124. See also Law Society British Columbia v Andrews, McIntyre J observed at paragraphs 31

and 37:

“31 It is not every distinction or differentiation in treatment at law which will transgress

the equality guarantees of s. 15 of the Charter. It is, of course, obvious that legislatures

may -- and to govern effectively -- must treat different individuals and groups in

different ways. Indeed, such distinctions are one of the main preoccupations of

legislatures. The classifying of individuals and groups, the making of different provisions

81 Justice Frankfurter in the dissenting opinion in Dennis v United States 339 U.S. 162 (1950) 82 Sanatan Dharma Maha Sabha of Trinidad and Tobago and others v The Attorney General of Trinidad and Tobago H.C.A. No. Cv. S. 2065/2004 page 64

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respecting such groups, the application of different rules, regulations, requirements and

qualifications to different persons is necessary for the governance of modern [page169]

society. As noted above, for the accommodation of differences, which is the essence of

true equality, it will frequently be necessary to make distinctions. What kinds of

distinctions will be acceptable under s. 15(1) and what kinds will violate its provisions?

…………………..

37………….. There are many other statements which have aimed at a short definition of

the term discrimination. In general, they are in accord with the statements referred to

above. I would say then that discrimination may be described as a distinction, whether

intentional or not but based on grounds relating to personal characteristics of the

individual or group, which has the effect of imposing burdens, obligations, or

disadvantages on such individual or group not imposed upon others, or which withholds

or limits access to opportunities, benefits, and advantages available to other members

of society. Distinctions based on personal characteristics attributed to an individual

solely on the basis of association with a group will rarely escape the charge of

discrimination, while those based on an individual's merits and capacities will rarely be

so classed.”

125. The focus is on the ground of discrimination and the effects. If the discrimination is

based on personal characteristics then one looks at the law, the effects “but very

importantly also at the larger historical, cultural, sociological, political and legal context.”83

Discrimination will more often be accompanied by some significant and unjustifiable

disadvantage and unfairness. The key to indirect effect discrimination is that always which is

neutral on its face can have a discriminating effect by imposing “burdens, obligations, or

disadvantages not imposed on others in a comparable position, or which unfairly withholds

or limits access to opportunities, benefits or advantages available to others in a comparable

83 Sanatan Dharma Maha Sabha of Trinidad and Tobago and others v The Attorney General of Trinidad and Tobago H.C.A. No. Cv. S. 2065/2004 page 64

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position in the society.”84

126. In Sanatan Dharma Maha Sabha of Trinidad and Tobago and others v The Attorney

General of Trinidad and Tobago Jamadar J (as he then was) noted:

“…there is inherent in the equality provisions an inescapable comparative element.

There is no such thing as absolute equality, in the sense that the law must treat every

person equally: penal provisions, income tax and succession legislation demonstrate

legitimate differential treatment. However, what the concept of equality encompasses

is the idea that persons who are alike (similarly situated/circumstanced) should be

treated alike; and that persons who are not alike could be treated differently, though

in some proportion to the differences. Thus a person is treated unequally if that

person is treated differently (and worse) than others who (the comparison group) are

similarly situated (circumstanced) to the complainant….”

127. Recognising the difference between section 4(b) and 4(d) Jamadar J (as he then was)

provided the following approach to section 4(b) of the Constitution:85

“I am of the following opinions with respect to the interpretation and application of the

general prohibition against discrimination and section 4(b) of the Constitution, in so far

as laws are concerned.

First, in deciding whether there has been a violation of the general prohibition and/or

section 4(b) both intention/purpose and effect must be considered. In this regard, three

possibilities exist which can result in a breach of the guaranteed rights:

(i) the intention/purpose of the law may be discriminatory, that is, it is discriminatory

“on its face;”

(ii) the effect of the law may be discriminatory though its intention/purpose is laudable;

(iii) both the intention/purpose and the effect may be discriminatory.

84 Sanatan Dharma Maha Sabha of Trinidad and Tobago and others v The Attorney General of Trinidad and Tobago H.C.A. No. Cv. S. 2065/2004 page 64 85 Sanatan Dharma Maha Sabha of Trinidad and Tobago and others v The Attorney General of Trinidad and Tobago H.C.A. No. Cv. S. 2065/2004 pages 54-58

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It would appear that in both (i) and (iii) a fortiori, the law would be deemed in violation

of the equality/non-discrimination provisions.

However, regarding category (ii), though a law may in its effect be discriminatory, it may

not be considered a breach of the constitutional equality provisions so as to warrant

relief under section 14 [see: Harrikissoon v Attorney General (1980) AC 265 per Lord

Diplock].

Two obvious examples come to mind: (a) trivial and frivolous claims; and (b) justifiable,

objectively purposeful and reasonable provisions (as in the Karnel Singh Bhinder case).

Within the second category of reasonableness, objective purposefulness and

justifiability, several considerations would no doubt apply.

Indeed, each case would have to be evaluated on its own particular circumstances.

However, some considerations would likely be: is the effect of the differential treatment

disproportionate or arbitrarily exclusive; are there objective and reasonable grounds for

the differential treatment which are at least compatible with the values (principles and

beliefs) enumerated in the Preamble to the Constitution and with a democratic way of

life; is there reasonable accommodation for those who experience the effects of the

differential treatment; and what is the historical, cultural, sociological, economic and

political context (reality) in which the law is to function (for example, is there some

general disadvantage, such as historical alienation or religious marginalization or

political powerlessness or social stigma or economic deprivation associated with those

who will experience the differential treatment or conversely general advantage in the

stated categories)? Clearly, wherever reasonableness must be shown, fairness is an

essential component.

Second, with respect to the general non-discrimination prohibition (by reason of race,

origin, colour, religion or sex), in my opinion these stated factors create a special

category of discrimination which, if present, affect the approach of the courts in

determining whether there has been a breach of the section 4 rights and freedoms.

As already pointed out, in Trinidad and Tobago, section 4(b) and (d) co-exist together

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with the general non-discrimination prohibition in section 4. The general prohibition

applies to all of the eleven enumerated rights and freedoms. An analysis of the five

stated aspects of the general prohibition reveal that they consist of personal

characteristics of the individual and, but for religion, are matters which are immutable,

in the sense that they cannot be changed solely by the choice of the individual. Clearly,

they go to the core identity of a person. Seen in this light it is not surprising that religion

is included, because anthropologists agree and it is the common experience that one’s

religion is an aspect of identity generally conferred at birth and that its values,

assumptions and beliefs become deeply embedded in an individual’s consciousness.

Thus, one may say that these five stated personal characteristics distinguish people on

the basis of inherent attributes rather than on behavioural traits. They describe more

who and what a person is, rather than how a person acts or what a person does.

However, because of the nature of religion, these observations apply equally to a

community of believers and impact also on behaviour.

This general prohibition against non-discrimination thus prohibits laws that differentiate

between people on the basis of their inherent personal characteristics and attributes. A

court is entitled to consider granting constitutional relief, where the claim is that a

person has been discriminated against by reason of a condition which is inherent and

integral to his/her identity and personhood.

Such discrimination undermines the dignity of persons, severely fractures peace and

erodes freedom. Courts will not readily allow laws to stand, which have the effect of

discriminating on the basis of the stated personal characteristics. Justification,

reasonableness and objective purposefulness would have to be clearly established and

one would have to carefully.

Third, legislative discrimination could be intentional or unintentional. In terms of effect

it could be direct or indirect. For example, if a benefit available to others similarly

circumstanced is denied or unavailable to a complainant by reference to a distinction

stated or implied, or by reference (explicit or implicit) to any of the stated personal

characteristics in the general prohibition, then barring satisfactory justificatory factors, a

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breach of section 4 could be established. In my opinion, subject to justification and

assuming similar circumstances, it would generally be enough to show that the

impugned law results in disadvantageous treatment, whether direct or indirect,

especially where one of the personal characteristics in the general prohibition is at

stake.

Fourth, there is inherent in the equality provisions an inescapable comparative element.

There is no such thing as absolute equality, in the sense that the law must treat every

person equally: penal provisions, income tax and succession legislation demonstrate

legitimate differential treatment.

However, what the concept of equality encompasses is the idea that persons who are

alike (similarly situated/circumstanced) should be treated alike; and that persons who

are not alike could be treated differently, though in some proportion to the differences.

Thus a person is treated unequally if that person is treated differently (and worse) than

others who (the comparison group) are similarly situated (circumstanced) to the

complainant. In Bhagwandeen v Attorney General, P.C. App. No. 45 of 2003, Lord

Carswell stated, at paragraph 18:

A claimant who alleges inequality of treatment or its synonym discrimination must

ordinarily establish that he has been or would be treated differently from some other

similarly circumstanced person or persons, described by Lord Hutton in Shamoon v Chief

Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 at paragraph 71 as actual

or hypothetical comparators. The phrase which is common to the anti-discrimination

provisions in the legislation of the United Kingdom is that the comparison must be such

that the relevant circumstances in the one case are the same, or not materially

different, in the other.

Critical in this analysis therefore is the determination of who is similarly

situated/circumstanced to whom and what kinds of different treatment are appropriate

for those who are similarly situated/circumstanced.

Fifth, the burden of proof is on the complainant to show both likeness and differential

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treatment (inequality). Once that is done, the burden shifts to the State to show

reasonableness, objective purposefulness, justification, accommodation etc. In my

opinion, this is so even though there is a presumption of constitutionality in favour of

the impugned legislation. Further, where the alleged discrimination is on the basis of

one of the stated personal characteristics in the general prohibition, then discrimination

is established upon proof of likeness and differential treatment on one of the stated

personal characteristics. Here, the level of scrutiny by the courts, of the State’s

justification, is high. Discrimination based on personal characteristics is a special

category in section 4.

Sixth, “equality before the law” and “the protection of the law” [4(b)] encompass both

the negative concept that “no person is above the law” and the positive concept that all

persons have an inalienable right to enjoy their constitutional rights and freedoms,

unrestrained except by equal and impartial laws and provided the same are reasonably

justifiable in a democratic society [section 13(1) of the Constitution]. V.G.

Ramachandran in his text ‘Fundamental Rights and Constitutional Remedies’ (discussing

the scope of Article 14 of the Indian Constitution – at page 212) states the position as

follows:

No individual or groups of individuals should have differential or preferential treatment

over other individuals or groups of individuals similarly circumstanced and with equal

qualifications. Thus, a complainant must show that he/she has suffered some form of

differential treatment or disadvantage, by reason say of one of the personal

characteristics in the general non-discrimination prohibition. This differential treatment

or disadvantage may be direct or indirect. For example, a law which results in

preferential treatment of a group by reason of religion, in comparison to others similarly

circumstanced, with the effect that those others experience some disadvantage, could

amount to discrimination by reason of religion and a breach of the protection of the law

aspect of the 4(b) equality provision [which is accentuated given the constitutional right

to enjoy freedom of religious belief and observance – section 4(h)].

In determining the protection of the law aspect of section 4(b) regard must also be had

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to, inter alia, the constitutionally guaranteed rights and freedoms. Seventh, in

determining effect – differential treatment and disadvantage, a difficult question arises

as to whether the test is objective or subjective.

In my opinion, especially when dealing with the personal characteristics in the general

prohibition, it is unrealistic to have an entirely objective test. I would therefore frame

the test as ‘subjective objectivity,’ in order to capture the idea that it is not either one or

the other but a synthesis of both, to be applied appropriately in the circumstances of

each case, having regard in particular to the ground of the alleged discrimination or

inequality.

An example will illustrate the dilemma and the recommendation: “conscience and

religious belief.” Conscience and religious belief are clearly highly subjective matters –

both of which are considered critical to the democratic way of life which the 1976

Constitution affirms, sustains and protects. Yet an objective element is necessary, for a

court must be under a duty to inquire whether the alleged beliefs are reasonable and

rational (from the individual’s point of view) and sincerely subscribed to (that is honestly

believed in and not fictitious or capricious).

Eight, the time at which the court must make its interpretation and assessment is the

present time. That is, the court must look at the circumstances as they exist at the

present time and determine whether there is a breach of the Constitution or not (see,

Boyce v R P.C.A. No. 99 of 2002 at paragraphs 54 to 59: “Constitution as a living

instrument”).

Ninth, as indicated first and fifth above, regard must be had specifically to the

intention/purpose of the law and an evaluation made as to the justifications for and the

reasonableness and legitimate aims of the provisions.”

128. It might well be that another distinction to be made with sections 4 (b) and 4 (d)

discrimination is that 4(d) more appropriately covers the effect of horizontal discrimination

of discrimination through various bodies carrying out public functions while 4(b) has the

effect of vertical discrimination between the law and the individual. It was Lady Hale in

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Annissa Webster who authoritatively restated the law giving Maha Sabha its appropriate

status. She summarised the law on sections 4(b) and 4(d) of the Constitution noting the

difference between these two sections. Lady Hale noted that while the law with respect to

section 4(b) may be clear, the law with respect to 4(d) was then in a state of flux. Section

4(b) is directed to the laws themselves. The equal protection of the laws requires the laws

themselves to be equal and the extent to which laws necessarily treat different groups

differently, the question is whether such distinctions are justified:

“15. There is a clear distinction between the two. The “equal protection of the laws”

requires that the laws themselves be equal. But the problem is that the law necessarily

has to treat different groups of people differently. The question is whether such

distinctions are justified. There is a wealth of jurisprudence on this subject from the

United States of America, where since 1868 the 14th Amendment to the Constitution

has guaranteed the equal protection of the laws. It is from this jurisprudence that we

derive the concept of “suspect” classifications, such as race, which have to be strictly

scrutinised and can rarely be justified, while for other classifications all that is required

is a rational connection to the purpose of the law.

16. It is worth noting that, in R (Carson) v Secretary of State for Work and Pensions

[2006] AC 173, Lord Hoffmann drew a similar contrast between those grounds of

discrimination “which prima facie appear to offend our notions of the respect due to the

individual” and “those which merely require some rational justification”. Differences in

the latter category “usually depend upon considerations of the general public interest”

which in his view “are very much a matter for the democratically elected branches of

government” (paras 15 – 16). This was, however, in the context of legislative distinctions

drawn in the rules relating to entitlement to retirement pensions and welfare benefits.

The same would not necessarily apply to discrimination by public authorities in the

exercise of their public functions.

………………….

19. “Sameness” and justification are not rigidly discrete issues. They can merge into one

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another, as Lord Nicholls helpfully explained in R (Carson) v Secretary of State for Work

and Pensions [2006] AC 173, para 3:

“[T]he essential question for the court is whether the alleged discrimination, that

is, the difference in treatment of which complaint is made, can withstand

scrutiny. Sometimes the answer to this question will be plain. There may be such

an obvious, relevant difference between the claimant and those with whom he

seeks to compare himself that their situations cannot be regarded as analogous.

Sometimes, where the position is not so clear, a different approach is called for.

Then the court's scrutiny may best be directed at considering whether the

differentiation has a legitimate aim and whether the means chosen to achieve

the aim is appropriate and not disproportionate in its adverse impact.”

129. The grounds of Ms. Hadeed’s motion appear to make the point that her comparator

group are non-nationals who were accepted to practise law under section 15(1A). However,

there is a ground in her claim in which she makes the point that the action itself is

discriminatory against her as a national. That is the only ground on which her claim can

succeed.86

130. In Annissa Webster Lady Hale sets out the law with respect to the right given at section

4 (d) as follows:

“The constitutional right under s. 4(d) is a right to equality of treatment from a public

authority in the exercise of its functions. The purpose of the right is to protect citizens

from the arbitrary use of power by a public official. Lord Carswell in Bhagwandeen,

stated that anyone who alleges inequality of treatment or its synonym discrimination

must ordinarily establish that he has been or would have been treated differently from

some other similarly circumstanced person or persons. The treatment, it seems, will

occur when a person who is entitled to a particular benefit or service from a public

authority is deprived of it while others, similarly circumstanced, receive it without any

reasonable or justifiable explanation being given for the denial.”

86 See paragraphs 23-24 of the Fixed Date Claim Form filed 26th July 2018

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“The infringement of the right arises in two ways: either by way of legislation where

discrimination is a necessary consequence of the Act or where it occurs when a public

official is discharging a power or exercising a discretion on behalf of a public authority

in the performance of its functions.”

131. With respect to section 4(d) Lady Hale summed up the law as follows:

“24. The current approach to section 4(d) of the Constitution of Trinidad and Tobago

may therefore be summarised as follows:

(1) The situations must be comparable, analogous, or broadly similar, but need not

be identical. Any differences between them must be material to the difference in

treatment.

(2) Once such broad comparability is shown, it is for the public authority to explain

and justify the difference in treatment.

(3) To be justified, the difference in treatment must have a legitimate aim and there

must be a reasonable relationship of proportionality between the means employed

and the aim sought to be realised.

(4) Weighty reasons will be required to justify differences in treatment based upon

the personal characteristics mentioned at the outset of section 4: race, origin,

colour, religion or sex.

(5) It is not necessary to prove mala fides on the part of the public authority in

question (unless of course this is specifically alleged).”

132. Several cases have since then applied this test with respect to a section 4(d)

discrimination ending with the Privy Council’s decision in Sahatoo v The Attorney General

of Trinidad and Tobago [2019] UKPC 19 where an appeal to the Privy Council to revisit Lady

Hale’s test was rejected as being unnecessary. Some useful authorities bear on this question

of inequality of treatment and the application of Lady Hale’s test in particular the overlap

mentioned of sameness and justification. It would appear that filtering into the application

of this structured test is an analysis of justification as a means of determining whether a

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group is a suitable comparator rather than requiring a separate analysis to justify the

discrimination. The Port Authority of Trinidad and Tobago v Daban [2019] UKPC 22 appears

to have been decided in that manner of an overlap where the difference in treatment was

justifiable because of the material differences between the groups. It is at once a rolled up

justification and comparator test. See The Port Authority of Trinidad and Tobago v Daban

[2019] UKPC 22.

133. Interestingly, Justice of Appeal Moosai added a useful element to the analysis of

inequality of treatment. He pointed out in Audine Mootoo v The Attorney General and the

Public Service Commission Civil Appeal No. 38/2009 that simply because the Claimant has

not established a suitable comparator does not mean the claim of inequality of treatment

fails:

“It must be borne in mind that the constitutional concept of equality of treatment is

significantly wide to encompass the duty to act consistently. Accordingly, like cases

should be treated alike.”87

What was required was an explanation of the inconsistent application of the laws towards

the Claimant.

134. In Allan Mitchell and others v The Attorney General of Trinidad and Tobago Civil

Appeal No. 96 of 2013 the Claimants failed to demonstrate they were comparators to the

group alleged to hold superior benefits. The differences between the two were material to

the difference in treatment between the groups. In this case the only difference between

the groups is that of nationality. The underlying value judgment to be made in this case is

whether that is a sufficient difference to justify the difference in treatment. It is a circular

argument as indeed the difference being the discriminating factor cannot at the same time

also be the justification for the difference in treatment. See Pemberton JA in Allan Mitchell

and others v The Attorney General of Trinidad and Tobago Civil Appeal No. 96 of 2013.

135. In Vijai Bhola v The Attorney General of Trinidad and Tobago and the Police Service

87 Audine Mootoo v The Attorney General and the Public Service Commission Civil Appeal No. 38/2009, paragraph 83

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Commission Civil Appeal No. 22 of 2012 quoting Lady Hale in Omar Maraj, Jamadar JA (as

he then was) again pointed out that “Legislation frequently has to draw distinctions

between different classes of people. Such distinctions may well be justified. Some

distinctions are easier to justify than others. But at the very least they must serve a

legitimate aim and be rationally connected to that aim.”88

136. Justice of Appeal Bereaux recently in Michael Dindayal v The Attorney General of

Trinidad and Tobago Civil Appeal No. 257 of 2008 underscored the point of section 4(b)

that equality before the law “speaks to laws which must be fair on their face and of equal

application to all citizens. But where the law differentiates between groups or classes of

persons, there must be a rational basis for such differentiation.”89 Interestingly, Bereaux JA

includes the qualification equal application “to all citizens”. From this perspective it appears

that fairness and equal application applies to the treatment of citizens and nationals only

and in the treatment of non-national or non-citizens differently or arbitrarily no breach may

arise. I do not think this was an intended consequence of that statement as our declaration

of fundamental freedoms and rights apply to all those persons within our society of Trinidad

and Tobago regardless of race, sex, origin, colour or religion. Save for Bhola above, these

cases dealt with 4(d) discrimination.

137. It is certainly true that the legislature can treat with nationals differently from non-

nationals. The Defendant exhibited a number of local legislation dealing with benefits for

88 Vijai Bhola v The Attorney General of Trinidad and Tobago and the Police Service Commission Civil Appeal No. 22 of 2012, paragraph 15 89 Michael Dindayal v The Attorney General of Trinidad and Tobago Civil Appeal No. 257 of 2008, paragraph 48:

“As to the law in respect of section 4(b), Baroness Hale noted in Webster at paragraph 15 that, “there is a clear distinction” between section 4(b) and section 4(d). Equality before the law in section 4 (b) requires that the laws themselves be equal. In my judgment, as a general proposition, section 4 (b) speaks to laws which must be fair on their face and of equal application to all citizens. But where the law differentiates between groups or classes of persons, there must be a rational basis for such differentiation. As Baroness Hale noted in Webster (paragraph 15):

‘ … the problem is that the law necessarily has to treat different groups of people differently. The question is whether such distinctions are justified. There is a wealth of jurisprudence on this subject from the United States of America, where since 1868 the 14th Amendment to the constitution has guaranteed the equal protection of the laws. It is from this jurisprudence that we derive the concept of “suspect” classifications, such as race, which have to be strictly scrutinised and can rarely be justified, while for other classifications all that is required is a rational connection to the purpose of the law.’“

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nationals. Of course it is not the task of this Court to examine the legitimacy of those laws

nor to accept as a valid proposition that if those laws exist for the benefit of nationals then

the constitutional fate of section 15(1A) is assured. That is a misinterpretation of the

function of this Court in the task of constitutional interpretation. While it is true that it is

“almost always possible to find some difference between people who have been treated

differently” and that this does not mean there is discrimination, there must be a legitimate

reason to do so. If the grouping is based upon personal characteristics, it must moreover be

strong and cogent reason to do so. See also Sharon Roop v The Attorney General of

Trinidad and Tobago CV2017-03276 and Jason Jones v The Attorney General of Trinidad

and Tobago and Interested Parties CV2017-00720.

138. In my view, this case is really about justifiable discrimination and not that there is no

discrimination or differentiation. If the differentiation is justified and objectively defensible

then there can be no breach of Ms. Hadeed’s constitutional right.

Suitable Comparators

139. The Defendant contends that the correct comparator group are non-nationals who hold

similar qualifications and have been admitted under section 15(1A) but she has not. It is

interesting that the Defendant makes this point as indeed in Ms. Hadeed’s motion, in her

first ground of discrimination she alludes to this very fact that she has not been treated

similarly with other non-nationals who have been admitted under the section 15(1A). The

problem with this as Ms. Hadeed herself has recognised in advancing her alternative claim is

that section 15(1A) does not contemplate a wider pool which includes non-nationals. She

cannot therefore fall within the contemplation of the section. The full weight of R (Carson) v

Secretary of State for Work and Pensions [2006] AC 173, would in that case apply.

However, what section 15(1A) also contemplates is also a wide pool of qualified persons

who have obtained their LPC in which Ms. Hadeed has shown a likeness but treated

differently on the grounds of her nationality.

140. To assert, as the Defendant has done, that there is no suitable comparator as it is

justifiable to differentiate between nationals and non-nationals, is a flawed argument as it

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conflates the justification test impermissibly into the comparator test distorting the wide

and liberal scope contemplated by Lady Hale in establishing general and not identical

similarities between groups. It also uses the discriminating factors as the justification for the

differentiation between groups.

141. In this respect her case is different from Carson, which also juxtaposed the justification

into the suitable comparator test but a case which ultimately was decided that there was

sufficient justification to treat different persons differently, persons living abroad from

citizens of the UK.

R (Carson) v Secretary of State for Work and Pensions

142. Annette Carson was a writer who lived in England, who migrated to South Africa. Upon

attaining the age of 60, she became entitled to a UK pension. Even after her emigration, she

had continued to pay all necessary contributions and therefore, started with the same

pension she would have received had she remained in the UK. In April, 2001, the basic

pension for UK pensioners increased to reflect the rise in cost of living in the UK. However,

pensioners living abroad, such as Ms. Carson, were not entitled to the increase, which

occurred annually.

143. Ms. Carson continued to receive her original pension and complained that she was

being unfairly treated. She said that she has paid the same contributions as a UK resident

and accordingly, ought to receive the same pension. She complained that her treatment is

incompatible with Article 1490 of the European Convention on Human Rights.

144. Lord Hoffmann found that there was “nothing unfair or irrational about according

different treatment to people who live abroad” (see para 8). This, therefore, is the

application of the justification test. It is not an application of the suitable comparator test.

He further observed at paragraphs 18 – 25.

“The denial of a social security benefit to Ms Carson on the ground that she lives abroad

90 “Enjoyment of the rights and freedoms set force in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

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cannot possibly be equated with discrimination on grounds of race or sex. It is not a

denial of respect for her as an individual. She was under no obligation to move to South

Africa. She did so voluntarily and no doubt for good reasons. But in doing so, she put

herself outside the primary scope and purpose of the UK social security system.”

…

None of these interlocking features can be applied to a non-resident such as Ms Carson.

She pays no United Kingdom income tax, so the state would not be able to recover

anything even if she had substantial additional income… Likewise, if she were destitute,

there would be no saving in income support. On the contrary, the pension would go to

reduce the social security benefits (if any) to which she is entitled in her new country.”

145. At the heart of Carson however was not whether there were suitable comparators but

whether there was justification for the difference in treatment. Lord Nicholls observed in

paragraph 3:

“The essential question for the court is whether the alleged discrimination, that is, the

difference in treatment of which the complaint is made, can withstand scrutiny…the

court’s scrutiny may be best directed at considering whether the differentiation has a

legitimate aim and whether the means chosen to achieve the aim is appropriate and not

disproportionate in its adverse impact….In my opinion the sense of grievance may be

understandable but it is not justified. There is nothing unfair or irrational about

according different treatment to people who live abroad.”

146. Having discussed the nature of the state taxation and social security system, his

Lordship went on to state further at paragraphs 25 and 26 under the heading

“Parliamentary choice”:

“For these reasons it seems to me that the position of a non-resident is materially and

relevantly different from that of a UK resident…Furthermore, I think this is very much a

case in which Parliament is entitled to decide whether the differences justify a

difference in treatment. It cannot be the law that the United Kingdom is prohibited from

treating expatriate pensioners generously unless it treats them in precisely the same

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way as pensioners at home. Once it is accepted that the position of Ms Carson is

relevantly different from that of a UK resident and that she therefore cannot claim

equality of treatment, the amount (if any) which she receives must be a matter for

Parliament….Once it is conceded, as Mr Blake accepts, that people resident outside the

United Kingdom are relevantly different and could be denied any pension at all,

Parliament does not have to justify to the courts the reasons why they are paid one sum

rather than another.”

147. The House of Lords, therefore, in its analysis was articulating the justification for the

difference in treatment to the Claimant in the context of the pension scheme, its purpose

and effect. Conversely, it examined the question of adverse effects, if there was indeed

equality of treatment to these different groups. In applying a scheme of social security, it is

rational and internationally acceptable to distinguish between inhabitants of the UK and

persons resident abroad.

148. However, Carson is not analogous to this case. Each case of inequality of treatment is

contextual. What must be examined here are the reasons and justification for the difference

in treatment of nationals and non-nationals. Carson by no means provides a free hand to

legislatures or public authorities to treat residents and non-residents or nationals and non-

nationals differently without objective and legitimate reasons to do so. Indeed Lord

Hoffman quite correctly recognised:

“Whether the cases are sufficiently different is partly a matter of values and partly a

matter of rationality…Characteristics such as race, caste, noble birth, membership of a

political party and…gender are seldom, if ever, acceptable grounds for differences in

treatment…But the Strasbourg court has given it a wide interpretation, approaching

that of the Fourteenth Amendment, and it is therefore necessary, as in the United

States, to distinguish between those grounds of discrimination, which prima facie

appear to offend our notions of the respect due to the individual and those which

merely require some rational justification.

There are two important consequences of making this distinction. Firstly,

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discrimination in the first category cannot be justified merely on utilitarian grounds, …

On the other hand, differences in treatment in the second category (e.g. grounds of

ability, education, wealth, occupation) usually depend upon considerations of the

general public interest.

Secondly, while the courts, as guardians of the right of the individual to equal respect,

will carefully examine the reasons offered for any discrimination in the first category,

decisions about the general public interest which underpin differences in treatment in

the second category are every much a matter for the democratically elected branches

of government.”

149. I part company, however, with Lord Hoffman in his final statement as it may appear

superficially to suggest that where there is discrimination on the ground of a non-suspect

category the Court will defer to Parliament. This is not applicable in our jurisprudential

landscape where the Constitution is supreme as discussed in my analysis earlier in this

judgment. Any justification provided for discrimination on a non-suspect category is still

open for scrutiny on the basis of justification, legitimacy and proportionality.

Legitimacy of Section 15(1A) and the Proportionality test

150. It may be noted that the LPA of 1986 was passed with the requisite 2/3 majority. Section

15 (1A) which was introduced in 2000 was not. When assessing the consistency of section

15(1A) passed by a simple majority, it is common ground by all the parties that the relevant

test is one of proportionality. The Privy Council in both Suratt & others v. The Attorney

General [2007] UKPC 51 and Public Service Appeal Board v Omar Maraj [2010] UKPC 29,

when assessing the constitutionality of legislation passed by a simple majority with sections

4 and 5 of the Constitution, has asserted that the test to be applied is one of proportionality

in the context of a section 4(b) and 4(d) analysis of the justification of the inequality of

treatment. The legitimate objective justification analysis of a discrimination claim therefore

intersects naturally with the proportionality test expounded by Suratt. In delivering the

opinion of the Board in Suratt, Baroness Hale posited at paragraph 58:

“It cannot be the case that every Act of Parliament which impinges in any way upon the

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rights protected in sections 4 and 5 of the Constitution is for that reason alone

unconstitutional. Legislation frequently affects rights such as freedom of thought and

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

limited, either by general legislation or in the particular case, provided that the

limitation pursues a legitimate aim and is proportionate to it. It is for Parliament in the

first instance to strike the balance between individual rights and the general interest.

The courts may on occasion have to decide whether Parliament has achieved the right

balance. But there can be little doubt that the balance which Parliament has struck in

the EOA is justifiable and consistent with the Constitution.”

151. In the majority judgment of Barry Francis, Bureaux JA. accepted that a ‘proportionality

test’ adumbrated by Lady Hale in Suratt & others v. The Attorney General and Public

Service Appeal Board v Omar Maraj was to be applied in determining whether legislation

passed by the Parliament was in fact inconsistent with sections 4 and 5 of the Trinidad and

Tobago Constitution. Lady Hale proposed that in determining whether legislation passed by

a simple majority of the Parliament was inconsistent with sections 4 and 5 of the

Constitution of Trinidad and Tobago the Court must first decide whether:

a) The legislation limiting the right had a legitimate aim.

b) The limitation on rights was rationally connected to that aim.

152. I have noted the debate in the minority judgment of Barry Francis of the relevance of a

proportionality analysis in the enforcement of our constitutional human rights which was

treated favourably in Jason Jones v The Attorney General of Trinidad and Tobago and

Interested Parties CV2017-00720 and Sharon Roop v The Attorney General of Trinidad and

Tobago CV2017-03276. The debate is not relevant here. However, one of the liberating

features of interpreting a Constitution in the context of evolving norms is that it permits the

Court to consistently examine the challenges and demands of present social dilemmas

against the backdrop of contemporary social and legal norms. This might account for the

attraction of the proportionality test, liberating so to speak, from the originalism school of

interpretation and adopting the proportionality test, which really is a product of

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European/Prussian jurisprudence. It has since gained currency in the Caribbean. See Julian J

Robinson v The Attorney General of Jamaica [2019] JMFC Full 04. The proportionality

analysis satisfies the demand for accountability and transparency in the making of policy.

The Court is not making policy by applying a proportionality analysis, it simply asks the

legislature and executive to demonstrate the options that were considered and were

available to arrive at the measure adopted.

153. The majority view in Barry Francis is that the rights conferred in sections 4 and 5 are not

absolute. In Barry Francis at paragraph 49, Bereaux JA stated as follows:

“It is also long accepted, because of the competing interest of a democracy, the rights

conferred under sections 4 and 5 of the Constitution are not absolute and, to the

extent that they existed prior to the Independence Constitution in 1962, never were.

They must, for the most part, yield to the public interest, thus not every limitation on

a fundamental right by the Legislature or the Executive will necessarily amount to an

infringement for the purposes of section 14(1) of the Constitution.”

154. Bereaux JA in Barry Francis set out the proportionality test as follows:

“The proportionality test applies a two-step approach to the question of the

constitutionality of an Act of Parliament:

(1) Does the policy of the legislation pursue a legitimate object?

(2) Does the limitation or restriction of the constitutional right bear a

reasonable or rational relation to the object of the legislation?

The test was applied by Baroness Hale in Suratt. Baroness Hale’s formulation is nothing

but a more recent expression of a long-established principle. But it is also now one of

three limbs of the test to be applied in considering whether an Act of Parliament is not

reasonably justifiable under s 13(1) of the Constitution, pursuant to the decision of this

court in Northern Construction Ltd v A-G (Civil Appeal No 100 of 2002). The result will be

that any legislation found to be inconsistent with ss 4 and 5 of the Constitution, because

its provisions are disproportionate, will most certainly not be reasonably justifiable

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under 13(1).”91

155. The difference of treatment will be justified when it pursues a legitimate aim and there

exists at the same time a reasonable relationship of proportionality between the means

employed and the aim sought to be realised. See Jaulin v DPP [1976] MR 96.

156. Justification is divided into two main questions: Does the difference in treatment have a

legitimate aim and are the means chosen both suitable to achieve that aim and a

proportionate way of doing so?92

The Limitation on Rights is Disproportionate and Illegitimate

157. In this case the reason for the difference in treatment advanced by the Defendant is the

need to treat with the limited spaces in our law schools and afford local students a shorter

route to being called to the bar than that set out in the CLE Agreement and CLE Act. In

pursuing that need the legislators saw it fit to act in the clear defiance of its international

obligations and of the municipal law.

158. I respect the candour of Senior Counsel for the Defendant and the Registrar in their

spirited defence of section 15(1A) in the face of its breach of the law. But this Court cannot

accept as rational, proportionate or desirable in the context of the purpose of the CLE

Agreement and CLE Act the reason advanced for carving out such a benefit for nationals. I

disagree that this is such a policy decision which the Court will demur to the wisdom of

Parliament. In The Attorney General of Belize v Philip Zuniga and others [2014] CCJ 2 (AJ)

Saunders J sets out the delicate balance between the Court and the legislature:

“[49] It is trite law that the court is entitled to determine whether laws enacted by

Parliament are in conformity with the Constitution and to strike them down to the

extent of their inconsistency. If the Chief Justice‘s words are interpreted to mean that,

absent some breach of the Constitution (outside of a perceived breach of section 68

itself) the Court is at liberty to declare a law void merely because, in its wisdom, the

court does not consider the law to fall within the compass of what conduces to the

91 Barry Francis v The State Criminal Appeal Nos. 5 & 6 of 2010, paragraph 51 92 Annissa Webster v The Attorney General of Trinidad and Tobago [2015] UKPC 10, paragraph 18

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―peace, order and good government‖ of Belize, then respectfully, we must disagree.

We prefer the approach taken by Mendes JA who noted that ―it is not possible to eke

out an implied principle that the judiciary may second guess the elected representatives

on the question of what purpose it is appropriate for legislation to serve. Such a power

would put the judiciary in competition with the legislature for the determination of

what policies ought to be pursued in the best interests of Belize.

[50] In the realm of policy, the National Assembly is not only best equipped, but it also

has a specific remit to assess and legislate what it considers suitable for Belizean society.

The expression ―peace, order and good government‖ is not to be, and has never been

seen as, words of limitation on parliament‘s law making power. On the contrary, the

words are to be regarded as a compendious expression denoting the full power of

Parliament freely to engage in law-making subject only to the Constitution. Without

more, it is not for the court to question the wisdom or appropriateness of an Act of

Parliament to determine whether the Act is inimical to the peace, order and good

government of Belize. This Court would not go so far, however, as to endorse the

blanket suggestion that a court may never be concerned with the propriety or

expediency of an impugned law. It may be appropriate and even necessary to be so

concerned where, for example, the purpose of the law is a relevant issue in determining

a breach of the separation of powers doctrine (as we have seen above at [37]) – [45]), or

a violation of a fundamental right.”

159. A Court cannot sanction the breach of a human right which will include a breach of the

law. In such an instance, equality of treatment and the rule of law will be at loggerheads.

The Defendant contends that government’s response by way of section 15(1A) was framed

squarely by the then Attorney General as keeping with the government’s policy that there

should be available opportunities for education for all and all who want to pursue

professional training should be able to do it. 93 The Defendant contends that the enactment

of section 15 (1A) was a matter of public policy legitimately aimed at alleviating an

identified social problem unique to nationals of Trinidad and Tobago – to allow national

93Hansard, 5th October, 2000 pg. 1202

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students who have obtained foreign qualifications to practice locally. No similar problem

was identified in respect of non-nationals with foreign qualifications seeking to be admitted

into the law school.

160. The Defendant submitted the means chosen was both suitable and proportionate.

Parliament was cognizant of its obligations under the CLE Agreement and the limited

incursion it was making into it by the enactment of the section 15 (1A). Given its objective it

was therefore careful to restrict the provision to nationals so as to not create a possible

further breach of the CLE Agreement. Extending the provision to non-nationals would have

meant that any person from the contracting State parties would be eligible to be admitted

to practise in Trinidad and Tobago without a LEC. This would have defeated both the

objective of the section and the purpose of the regional legal education scheme. As such,

the section was created as an exception to the general admission requirements for the

benefit of Trinidad and Tobago nationals only to practise locally.94 But in so doing it did not

take away any benefit from non-nationals who otherwise remained eligible for admission to

practise in Trinidad and Tobago along with other nationals via the general admission route

and requirements. Non-nationals were therefore not placed in any worse position than they

were before vis a vis non-nationals.

161. By reference to Hansard,95 in themselves a source of limited utility96 the Defendant

94 The AG stated at pg. 1206, Hansard, 5th October, 2000: “The handicap of lawyers under this scheme is, a lawyer who goes through the Hugh Wooding, Normal Manley, or Caricom system can practise in any country, once admitted by the court, and it is a formal admission. What will happen with lawyers under this scheme, is they would only be able to practise in Trinidad and Tobago. If they have to practise in another country, obviously, they would have to go through the examination. When we discussed it with students, 90—95 per cent of them do not practise as lawyers in other Caribbean countries. I think that persons would be prepared to face that handicap in order to be able to practise their profession instead of not being able to practise at all.” 95 In the Hansard debates on the passing of section 15(1A) of the LPA on 5th October, 2000, the then Attorney General, Mr. Ramesh Lawrence Maharaj SC made the following remarks justifying the section:

“In Trinidad and Tobago, a large number of students hold non-University of the West Indies law degrees and are currently studying at institutions other than the University of the West Indies. This is partly because places available within the Law Faculty of the University of the West Indies are limited and are allocated on a quota basis amongst states. As a result of this, once the number of places allocated to Trinidad and Tobago are filled, no further Trinidad and Tobago students are admitted no matter how good their academic qualifications are. Unsuccessful students for places must either study abroad for their law degree or study as external students, usually with the University of London external programme. Other students, because of financial constraints and family and work commitments cannot attend university full-time and, therefore, have to study as external students.

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points out that the objective and rational policy was to make available opportunities for

education for all and all who want to pursue professional training should be able to do it.

The issue was notional in character to meet a social need of nationals and the legislative

“The Government of Trinidad and Tobago, when it took office, recognized this as a problem. There were representations made to it and the Government’s policy has been that there should be available opportunities for education for all and all who want to pursue professional training should be able to do it…” “It was called a committee of Experts and the Committee of Experts recognized a special problem face by Trinidad and Tobago in the demand for legal education. It noted that in Trinidad and Tobago the evidence indicated a high demand for legal education which remain unsatisfied. The quota system for entry into the Faculty of Law at the University of the West Indies allowed Trinidad and Tobago 34 places. Trinidad and Tobago makes the highest contribution to the University of the West Indies as far as law is concerned. I understand that the contribution is $10 million a year….”(see pp 1202) “As is stands, the facts and figures would show that although Trinidad and Tobago pays the most money, it gets the last number of students. They work it on the basis that whatever the quota is, they work on that basis.” (see pp 1204) “What this Bill is about is to redress the situation of the nationals of Trinidad and Tobago who could not get in here…Those who have got their degrees and who have gone through their professional training but have not done their pupillage in England, would have to come here and serve in Trinidad and Tobago for a period of six months with an appropriate certificate.” (see pp 1204) I would like Honourable Senators to consider situations where nationals of Trinidad and Tobago—every year there are approximately 100—150 nationals who want to study law and have a degree which is higher than that from the University of the West Indies, but cannot get in because there are only 34 places.” “When they go abroad to study for the LLB degree, in order to get into the law school, automatically first preference would be given to University of the West Indies LLB degrees. There is also a space problem at the Hugh Wooding Law School and Trinidad and Tobago is sometimes allotted 40—45 students for the year.”

96 Steve Ferguson v The Attorney General of Trinidad and Tobago [2016] UKPC 2, Lord Sumption observed at paragraph 33:

“33. Mr Beloff QC, who appeared for the appellants, sought to surmount this difficulty by extensive reference to the debates in Parliament which preceded the repeal. In the Board’s opinion these debates, read as a whole, do not support his case. On the contrary, they tend to confirm the impression left by the background circumstances, that the perceived impact of section 34 on the Piarco prosecutions was no more than the Page 15 occasion for an altogether more general concern about the wisdom of the section. But there is a more fundamental reason for disregarding this material. Parliamentary debates may be admissible to prove facts from which the mischief of an enactment can be inferred, if this is not apparent from its terms. But that is not the purpose for which Mr Beloff is in reality seeking to use it. He relies on the debates as evidence of the motives of the legislators who spoke. This could be justified only if the Constitution posed questions which had to be answered by reference to the state of mind of individual Parliamentarians. In the Board’s opinion, it does not. The test being objective, the motives of Parliamentarians are irrelevant. They are also inconclusive, because statements by individual Parliamentarians in the course of debates are not evidence even of the subjective thoughts of the whole body. For both of these reasons, in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, the House of Lords deprecated the use of Parliamentary debates to demonstrate the inadequacy of Parliament’s reasons when legislation was alleged to be disproportionate and incompatible with the Human Rights Convention: see para 67 (Lord Nicholls of Birkenhead). “Different members”, as he pointed out, “may well have different reasons, not expressed in debates, for approving particular statutory provisions. They may have different perceptions of the desirability or likely effect of the legislation”.

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enactment was in the public interest. This is where the Defendant finds itself in further

difficulty. First, the Hansard reveals that section 15(1A) of the LPA was the subject of great

controversy. The opposition at one point walking out of the Chamber. I agree with Lord

Sumption in Steve Ferguson of how little can be gleaned from the statements of

Parliamentarians of the objective rationale of legislations. The same applies for section

15(1A). Second, the breach of the right must be assessed on the conditions as they exist in

the legal market in 2018 and not 2000 (of which there is no evidence).

162. Third, in short, it justifies a difference in treatment based upon the need to enact a law

which in itself in in breach of the CLE agreement and the CLE Act. Section 15(1A) by its very

nature was an illegitimate subversion of the purpose of the CLE, legal training in the

Caribbean and defies the need for an indigenous legal education as explained in the Barnett

Report and respect afforded to Caribbean nationals in accessing each other’s markets.

163. Caught in the cross roads of the clear principles that there are certain areas of

government policy which the Court ought not to transgress on the one hand, with the duty

to uphold the rule of law and to examine the legitimacy of purpose of legislative action, on

the other, it is unfortunately clear that the democratically elected government for its

dogged and strong sense of national need sought to cut ties with its binding regional

arrangements. While the Court cannot question the will of Parliament, it cannot agree with

its means to carry out these objectives in an illegitimate manner or countenance the

legitimacy of an enactment which in itself is illegitimate and serves an illegitimate purpose.

164. Further, section 15(1A) not only carves out in breach of the CLE Act and CLE agreement

a niche, a back door for the admission of nationals to be admitted to practice, it does so

without any qualitative considerations of the applicant. It is being justified on the ground

that it is for nationals and restricted to the local market, that those admitted would not be

able to practise law in the Caribbean. Of course, this misses the point made above of the

purpose of creating an indigenous form of practice of the law in the Caribbean and calling

for some training and familiarisation of our indigenous law before being qualified. It further

misses the point of leveraging a standard of qualification below the accepted Caribbean

norm. If there was such a need for nationals only, a measured and proportionate result

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would include an element of Caribbean training recognised by the CLE or some concession

or accommodation made by the CLE. There is no rational or reasonable objection for such a

policy as there is no rationality in a policy which flouts this principle.

165. Even further, what is worse it has done so with qualifications97 which are inferior to

those recognised in the UK legal market itself and where the proponents of the Act

themselves recognised the Act to be a breach. All the parties recognise that section 15(1A)

is a breach of the country’s regional obligations as well as enacted law.

166. To accept the Defendant’s propositions would invite this Court to covers its eyes with

the cloth of illegitimacy for the sake of nationalism. To treat nationals differently or more

superior to non-nationals on an unfortunate, ill-advised, irrational premise cannot pass the

test of proportionality nor legitimacy. To make it worse, it would appear that there would

have been no difficulty in making this section applicable to all, nationals and CARICOM

nationals, but that to do so would mean to “further” breach their agreement. This simply

makes the point that if it was necessary to recognise the LPC with some form of local

training as a form of pupillage, it could have been open to all, if the treaty provisions were

not being breached. No evidence has been advanced to demonstrate the need to maintain

this pathway nor any change in the conditions of the legal practice some eighteen (18) years

after its enactment. No evidence has been provided of any attempt to deal with the

problem of the CLE Act and treaty provisions in a balanced and measured manner. Notably

in Bahamas, exceptions to the protocols were made to allow nationals with special

qualifications. Any apparent difficulty in pursuing the regional route to allow for such an

exception cannot be an excuse to create benefits which on its face are at best, insular or at

worse unjustified discrimination.

167. The Registrar further contends that the restriction on nationality in section 15 (1A) was

to allow national law students studying abroad to be able to practise locally should they be

unable to gain a pupillage or training contract. Therefore, section 15 (1A) achieves its

objective and is therefore “rationally connected” to its aim. This is a distortion of the true

97 Section 15(1A) (c) and (d) of the Legal Profession Act Chapter 90:03

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purpose of section 15 (1A) which is to simply deal with the shortage of spaces in the law

school and to apparently meet the increasing demand of persons who are seeking to

become attorneys. It was not carved out to deal with any group of persons studying abroad.

It now carves out a pathway for persons to avoid the CLE requirements by studying abroad

and using the section 15(1A) pathway. The Registrar also submitted that the power to

legislate is placed with the Parliament, who can amend the laws to fit the changing socio-

economic landscape of the country. This, of course, is true but it must do so within the

confines of the Constitution as interpreted by this Court.

168. In summary, section 15(1A) is therefore discriminatory on its face. The intention was to

treat nationals more favourably than non-nationals. In the context of the Caribbean scheme

of legal education it is not a rational policy. It goes against the grain of providing minimum

Caribbean standards for the practise of law. It promotes qualifications for section 15(1A) (c)

and (d) which are inferior to the UK legal market from which the qualifications were

obtained. There was no evidence of consultation with the Council of Legal Education or the

LATT. There is no evidence to demonstrate that it is a measured and balanced approach to

the problem of shortages at the law school. The problem of shortages of spaces has been

the subject of previous reports and recommendations, none of which recommended an

insular approach. No consideration was given to the impact on CARICOM nationals that

possess CARICOM skills certificate under the Immigration (Caribbean Community Skilled

Nationals) Act. The measure adopted was in the face of previous criticisms of countries not

adhering to regional commitments. It illogically deprives our society of the benefit of

suitably qualified CARICOM nationals. Finally, if not most importantly, section 15(1A) is in

plain breach of the law and undermines the rule of law.

Shut Out Laws and Multiple Pathways

169. Another argument advanced by the Defendant to justify the difference in treatment is

that section 15(1A) does not shut out Ms. Hadeed and there are other pathways to

admission.

170. However, even that argument is unsound as (a) those pathways when examined are

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more onerous than the section 15(1A) route (b) irrelevant to the question of the need to

discriminate in relation to the pathway under examination.

171. The Canadian Supreme Court case of Andrews v Law Society of British Columbia [1989]

1 S.C.R 143 and the U.S Supreme Court case of Re Griffiths 413 U.S. 717 (1973) concerned

provisions that absolutely prohibited non-citizens/aliens from admission to practice law

and, in both cases, the Supreme Court determined those provisions to be unconstitutional.

172. In Andrews, the impugned provision, section 42 of the Barristers and Solicitors Act, only

allowed to be admitted Canadian citizens. In Griffiths, the impugned provision was Rule 8

(1) Practice Book. It required the applicant to be a United States citizen to be admitted to

the Bar of the State of Connecticut Practice Book.

173. In Andrews, Wilson J, found that while the citizen had discharged his burden to prove

that the provision was discriminatory, the State failed in turn to discharge its burden to

prove that the discrimination was justified.98

174. McIntyre J in the Andrews case stated:

“51 The onus of justifying the infringement of a guaranteed Charter right must, of

course, rest upon the parties seeking to uphold the limitation, in this case, the Attorney

General of British Columbia and the Law Society of British Columbia. As is evident from

the decisions of this Court, there are two steps involved in the s. 1 inquiry. First, the

importance of the objective underlying the impugned law must be assessed. In Oakes, it

was held that to override a Charter guaranteed right the objective must relate to

concerns which are "pressing and substantial" in a free and democratic society.

However, given the broad ambit of legislation which must be enacted to cover various

aspects of the civil law dealing largely with administrative and regulatory matters and

98 Wilson J said stated that two hurdles must be surmounted for the State to justify a discriminatory provision:

a. That the objective sought to be achieved by the impugned law must be of “sufficient importance” to warrant overriding a constitutionally protected freedom; and

b. The means chosen to achieve the objective is proportional and appropriate to the ends i.e. the section must be rationally connected to its objective, impair the right as little as possible, and must not trench on the group’s rights too severely (see pages 153 – 155)

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the necessity for the Legislature to make many distinctions between individuals and

groups for such purposes, the standard of "pressing and substantial" may be too

stringent for application in all cases. To hold otherwise would frequently deny the

community-at-large the benefits associated with sound social and economic legislation.

In my opinion, in approaching a case such as the one before us, the first question the

Court should ask must relate to the nature and the purpose of the enactment, with a

view to deciding whether the limitation represents a legitimate exercise of the

legislative power for the attainment of a desirable social objective which would warrant

overriding constitutionally protected rights. The second step in a s. 1 inquiry involves a

proportionality test whereby the Court must attempt to balance a number of factors.

The Court must examine the nature of the right, the extent of its infringement, and the

degree to which the limitation furthers the attainment of the desirable goal embodied

in the legislation. Also involved in the inquiry will be the importance of the right to the

individual or group concerned, and the broader social impact of both the impugned law

and its alternatives. As the Chief Justice has stated in R. v. Edwards Books and Art Ltd.,

supra, at pp. 768-69:

Both in articulating the standard of proof and in describing the criteria

comprising the proportionality requirement the Court has been careful to avoid

rigid and inflexible standards.

I agree with this statement. There is no single test under s. 1; rather, the Court must

carefully engage in the balancing of many factors in determining whether an

infringement is reasonable and demonstrably justified.

52 The section 15(1) guarantee is the broadest of all guarantees. It applies to and

supports all other rights guaranteed by the Charter. However, it must be recognized that

Parliament and the Legislatures have a right and a duty to make laws for the whole

community: in this process, they must make innumerable legislative distinctions and

categorizations in the pursuit of the role of government. When making distinctions

between groups and individuals to achieve desirable social goals, it will rarely be

possible to say of any legislative distinction that it is clearly the right legislative choice or

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that it is clearly a wrong one. As stated by the Chief Justice in R. v. Edwards Books and

Art Ltd., at pp. 781-82:

A "reasonable limit" is one which, having regard to the principles enunciated in

Oakes, it was reasonable for the legislature to impose. The courts are not called

upon to substitute judicial opinions for legislative ones as to the place at which

to draw a precise line.”

175. Analysing the concept of discrimination on the ground of nationality through the

constitutional lens of the general prohibition against discrimination and section 4(b) and

section 4(d), I am of the view that section 15(1A) of the LPA discriminates against non-

nationals in the creation of an additional pathway to gain admission to legal practice on the

ground of nationality without a rationally connected and proportionate reason to do so.

176. I turn to consider the other constitutional rights articulated by Ms. Hadeed.

Protection of the Law

177. Ms. Hadeed contends that the Defendant breached the protection of the law in that her

rights to non-discrimination on the basis of nationality (Article 7 of the RTC), equality of

treatment (Article 8 of the RTC and section 3(3) of the Immigration CARICOM Skilled

Nationals Certificate Act and establishment (Article 37 of the RTC) have not been observed

and that it failed to consider all relevant practice and procedures before making its decision.

178. The wide ambit of the protection of the law as enunciated in the cases of Sam Maharaj,

Maya Leaders Alliance and Boyce & Joseph and that it encompasses compliance by the

State with its obligations in international law is not in dispute in this claim. The right to

protection of the law as secured by section 4(b) of the Constitution is traditionally a due

process right.

179. In Sam Maharaj the Privy Council held that access to the Courts in order to challenge a

claimed breach of an individual’s legal rights was an important aspect of the constitutional

protection provided for in section 4(b) of the Constitution. While there might be cases

where the right to protection of the law could be fulfilled by the availability of an effective

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and prompt remedy provided by the Courts, Mr. Maharaj’s case was not one of them

because he had been deprived of any form of remedy for many years. Lord Kerr observed at

paragraphs 25 to 26:

“25…In a series of cases where the protection of the law provision in constitutions in

various Caribbean countries was considered, an expansive approach to its potential

application has been taken. In Attorney General of Barbados v Joseph and Boyce [2006]

CCJ 3 (AJ) de la Bastide P and Saunders J said at para 60 of their joint judgment for the

Caribbean Court of Justice said at para 60:

“… the right to the protection of the law is so broad and pervasive that it would be well

nigh impossible to encapsulate in a section of a Constitution all the ways in which it may

be invoked or can be infringed.”

26. In The Maya Leaders Alliance v Attorney General of Belize [2015] CCJ 15 at para 47

CCJ took a similar stance:

‘The law is evidently in a state of evolution but we make the following observations. The

right to protection of the law is a multi-dimensional, broad and pervasive constitutional

precept grounded in fundamental notions of justice and the rule of law. The right to

protection of the law prohibits acts by the Government which arbitrarily or unfairly

deprive individuals of their basic constitutional rights to life, liberty or property. It

encompasses the right of every citizen of access to the courts and other judicial bodies

established by law to prosecute and demand effective relief to remedy any breaches of

their constitutional rights. However, the concept goes beyond such questions of access

and includes the right of the citizen to be afforded, ‘adequate safeguards against

irrationality, unreasonableness, fundamental unfairness or arbitrary exercise of

power….”99

99 In Maya Leaders Alliance v The Attorney General [2015] CCJ 15 (AJ), it was observed at paragraph 8:

“[8] We are aware of and accord great significance to relevant international law jurisprudence, particularly the 2004 Report of Inter-American Commission on Human Rights (the IACHR) which made findings on the application of Articles II and XXIII of the American Declaration on the Rights and Duties of Man (the American Declaration) to the claim by the Maya people to protection of their customary land rights (the Maya Communities case)7 However, the international jurisprudence does not and cannot

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180. In The Attorney v Jeffrey Joseph and Lennox Ricardo Boyce CCJ Appeal No CV 2 of 2005

it was further observed at paragraphs 25-26:

“[25] More recently, in Mowit vs. The DPP of Mauritius[FN7], their Lordships accepted

as the "ordinary if not the invariable rule", the observation of Lloyd LJ in R v Panel on

Take-overs and Mergers, Ex p Datafin PLC[FN8], that "If the source of power is a statute,

or subordinate legislation under a statute, then clearly the body in question will be

subject to judicial review".

26] The decision of the House of Lords in Re Council of Civil Service Unions[FN9] ("the

CCSU case") marked a defining point in the approach of the courts to the judicial

reviewability of prerogative powers. In the distant past, courts and text-book writers

regarded the acts of the sovereign as 'irresistible and absolute'. On this basis courts

confined themselves merely to an inquiry into the existence and extent of prerogative

powers. Their Lordships' speeches in the CCSU case emphatically endorsed the break

with this approach. The modern view is that courts today will review a prerogative

power once the nature of its subject-matter renders it justiciable. What is now pivotal to

a determination of the reviewability of a prerogative power is not so much the source of

the power but rather its subject-matter. In the CCSU case, Lord Fraser stated at page

399E :

"...whatever their source, powers which are defined, either by reference to their

object or by reference to procedures for their exercise, or in some other way,

and whether the definition is expressed or implied, are in my opinion normally

subject to judicial control to ensure that they are not exceeded. By "normally" I

mean provided that considerations of national security do not require

otherwise".”

alleviate the duty of this Court to have regard to the actual wording and context of the constitutional provisions in question and to give such interpretations to those provisions as are consistent with the jurisprudence evolving in Belize and other countries with similar constitutional provisions. In short, international jurisprudential prescriptions must be mediated through the peculiar legal traditions and constitutional arrangements which this Court is sworn to uphold.”

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181. Although Ms. Hadeed pleads a breach of section 4(b) of the Constitution, which includes

the right to protection of the law, no allegation is made of a breach of this right in her

grounds of claim. Nor is any relief sought in her Fixed Date Claim Form as it relates to any

breaches/ inconsistencies between the RTC and section 4(b). The section 4(b) challenge in

her claim was focused on the ground of discrimination. Ms. Hadeed for the first time in her

substantive submissions filed on 15th April, 2019 raises the issue of protection of the law in

the context of alleged contraventions of Articles 7, 8, 9 and 37 of the RTC by the Registrar’s

application and the effect of section 15 (1A).

182. In my view, for the reasons expressed in my earlier judgment100, I do not consider the

alleged breaches of the RTC articles relevant to the determination of this matter. The RTC,

however, as explained earlier, forms the context of this case. Section 3(3) of the

Immigration (Caribbean Community Skilled Nationals) Act does set out a clear prohibition

from restriction on the right to engage in gainful employment. It is also true that the RTC

has been incorporated into domestic law by the CARICOM Act, and forms part of the

backdrop for the interpretation of the rights guaranteed by the Constitution. However, it

was always open to Ms. Hadeed to use any other alternative pathways to practise law. In

that sense, there was no restriction under the general scheme of section 15 of the LPA for

her to engage in gainful employment.

183. No issue arises in this case which concern or requires the interpretation or application of

the RTC. I have already made my ruling on this matter and I do not intended to rehearse

those reasons here.

Right to Liberty and Enjoyment of Property- Section 4(a)

184. Similarly, for the same reason that the scheme of section 15 of the LPA permits Ms.

Hadeed to be lawfully engaged as an attorney at law, there is no breach of her right to

liberty or enjoyment of property.

185. Ms. Hadeed contends by reason of legislative discrimination she has been deprived of

the opportunity to work and engage in her chosen profession, for which she is otherwise

100 Dianne Jhamilly Hadeed v The Attorney General and Interested Parties CC2018-02726 (the Referral Judgment)

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qualified, without due process. She contends that the decision of the Registrar in refusing to

accept her admission documents and refusing to admit her to practise as an Attorney at law

in Trinidad and Tobago by reason only of her origin/nationality has deprived her of the

opportunity to work and engage in her chosen profession, for which she is academically

qualified, without judicial intervention or consideration. The deprivation of the opportunity

to work and engage in her chosen profession in these circumstances, is a breach of her right

to liberty and property.

186. In George Daniel v. The Attorney General of Trinidad and Tobago HCA 393 of 2005

Justice Bureaux (as he then was) commendably adopted a very wide definition of the right

to liberty which I endorse:

“The liberty provision of section 4(a) encompasses a wide and all-embracing concept

and in this regard the jurisprudence of the United States of America provides helpful

guidance. I am mindful however that helpful though they may be, the decided cases of

that jurisdiction are not to be transported and applied inflexibly without regard to the

cultural and developmental differences of both our countries.

In Neinast v Board of Trustees of Columbus Metropolitan Library, 346 F.3d 585, 2003

Fed. App. 0363P (C.A.6 Ohio, 2003) it was held that liberty under the law extends to the

full range of conduct which an individual is free to pursue, and extends to the basic

values implicit in the concept of ordered liberty and to basic civil rights and that it

includes liberty of the mind as well as liberty of action.

In Allgeyer v the State of Louisiana 163 US 578 Justice Pechkam, delivering the judgment

of the court, said:

“liberty” was held to mean not only the right of the citizen to be free from the mere

physical restraint of his person, as by incarceration, but also to embrace the right of

the citizen to be free in the enjoyment of all his faculties; to be free to use them in

all lawful ways; to live and work where he will to earn his livelihood by any lawful

calling; to pursue any livelihood or vocation; and for that purpose to enter into all

contracts which may be proper, necessary and essential to his carrying out to a

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successful conclusion the purposes abovementioned.

In Meyer –v- Nebraska 262 U.S. 390 (1923), the court interpreted “liberty” to mean not

merely the freedom from bodily restraint but also the right of the individual to contract,

to engage in any of the common occupations of life, to acquire useful knowledge, to

marry, establish a home and bring up children, to worship God according to the dictates

of his own conscience and generally to enjoy those privileges long recognised at

common law as essential to the orderly pursuit of happiness by free men.

In Peter Jaglal –v- The Attorney General of Trinidad and Tobago HCA 1276/2000, I stated

that:

“Liberty primarily connotes freedom from bodily restraint but it is more than that. It

also means freedom to conduct and to pursue one’s occupation of choice subject of

course to the law of the land. As a concept therefore liberty is capable of the widest

definition. There can be no complete or exact meaning moreso as constitutional

norms adjust to changing times and values. What amounts to a breach of liberty will

differ from case to case…”

187. Although the right to conduct and pursue the profession/occupation of one’s choice and

the opportunity to engage in the profession of one’s choice has not be expressly recognised

as a property right in the case law of Trinidad and Tobago, it has been recognised as such in

the Republic of the Philippines which has a constitution with a Bills of Right provision similar

to that of Trinidad and Tobago such right to property has been recognised. In the 1987

Constitution of the Republic of the Philippines, Article III section 1 states:

“No person shall be deprived of life, liberty, or property without due process of law, nor

shall any person be denied the equal protection of the laws.”

188. In two decisions of the Supreme Court of the Philippines it was recognised that this

constitutional right carried with it a right to labour and a right to work and a right to make a

living. In JMM Promotion And Management, Inc., and Kary International, Inc. vs.

Hon. Court Of Appeals, Hon. Ma. Nieves Confessor, then Secretary of the Department of

Labor and Employment, G.R. No. 120095 the Supreme Court of Philippines held:

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“A profession, trade of calling is a property right within the meaning of our

constitutional guarantees. One cannot be deprived of the right to work and right to

make a living because these rights are property rights, the arbitrary and unwarranted

deprivation of which normally constitutes an actionable wrong.”

189. Similarly, in Philippine Movie Pictures Workers' Association vs. Premiere Productions,

Inc. G.R. No. L-5621 the Supreme Court of the Philippines sitting en banc held:

“The right to labor is a constitutional as well as statutory right. Every man has a natural

right to the fruits of his own industry. A man who has been employed to undertake

certain labor and has put into it his time and effort is entitled to be protected. The right

of a person to his labor is deemed to be property within the meaning of constitutional

guarantees. That is his means of livelihood. He cannot be deprived of his labor or work

without due process of law (11 Am. Jur., 333, pp. 1151-1153; 11 Am. Jur., section 344.

pp. 1168-1171).”

190. While I recognise the importance of these decisions, our Constitution is to be

interpreted against our own social values and norms and needs. Simply put, Ms. Hadeed’s

case put before this Court is a case of discrimination and does not rise to the level of a

deprivation of her right to liberty or a property right. At best, the Constitution guarantees

her only of an opportunity to work. That opportunity has not been lost.

191. The right to liberty does not specifically say that the individual must have the right to

engage the profession of her his/her choice. Rather it is the right to “engage in any of the

common occupations of life”. Section 15 (1A) does not deprive her of the opportunity to

become a lawyer in Trinidad and Tobago.

192. There is no breach of her liberty or property rights.

Legitimate Expectations

193. Ms. Hadeed’s argument of a breach of legitimate expectations is based on four strands.

First, that the failure of the LATT to interpret the LPA in a manner consistent with the RTC

has resulted in the deprivation of her legitimate expectation to be treated in a manner

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consistent with Trinidad and Tobago’s obligations under the RTC. Second, that a practice

developed by prior Registrars had correctly interpreted the legislation consistently with

Trinidad and Tobago’s obligations under the RTC since CARICOM nationals who were not

nationals of Trinidad and Tobago were previously allowed to apply and be admitted to

practice under section 15(1A) of the LPA. Third, the publication of the requirement of the

LATT’s website inviting CARICOM nationals to apply under section 15(1A) of the LPA “insofar

as it acted as an agent of the Registrar”. Fourth, that by holding the Caribbean skilled

nationals certificate she is entitled to the benefits of section 3(3) of the Immigration

(Caribbean Community Skilled Nationals) Act.

194. Lord Hoffman and Lord Carswell sets out comprehensively the law on legitimate

expectation in The United Policy Holders Group v The Attorney General of Trinidad and

Tobago [2016] UKPC 17.101 Lord Carnwarth summarised the modern authority in favour of a

narrow interpretation of the Coughlan102 principle which he states as:

“Where a promise or representation, which is “clear, unambiguous and devoid of

relevant qualification”, has been given to an identifiable defined person or group by a

public authority for its own purposes, either in return for action by the person or group,

or on the basis of which the person or group has acted to its detriment, the court will

require it to be honoured, unless the authority is able to show good reasons, judged by

the court to be proportionate, to resile from it. In judging proportionality the court will

101 Jonathan Auburn, Jonathan Moffett and Andrew Sharland in Judicial Review Principles and Procedure

summarizes the categories identified by Simon Brown LJ in ex p Baker as : (i) Procedural legitimate expectation in the form of:

(a) A procedural entitlement, such as to consultation or a hearing, arising out of an express or implied representation by a public body that a particular procedure, not otherwise required by law, will be followed by it. This has since been referred to as the ‘paradigm case’ of procedural legitimate expectation;

(b) A procedural entitlement, such a to consultation or a hearing, arising out of an interest in an ultimate substantive benefit which an individual hopes to retain or attain, where the interest is such that it is protected by the requirements of procedural fairness and it cannot be withdrawn by the public body without the individual having had the opportunity to comment. This has since been referred to as the ‘secondary case’ of procedural legitimate expectation.

(ii) Substantive legitimate expectations, in the form of a substantive entitlement arising out of a representation by a public body as to how it will exercise its decision-making function.

102 R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213

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take into account any conflict with wider policy issues, particularly those of a “macro-

economic” or “macropolitical” kind.”103

195. Ms. Hadeed’s claim of a breach of legitimate expectation is unsustainable as no

unequivocal promise has been made to her from any legitimate source, subject to error,

which has been breached.

196. CARICOM Skills Certificate: There was no unqualified promise by the Defendant that Ms.

Hadeed could engage in employment as an attorney in Trinidad and Tobago. No restriction

has been placed on the right of Ms. Hadeed to engage in gainful employment or occupation

in accordance with this certificate.

197. Previous Practice of the Registrar: There is no challenge to the statement of the

Registrar that the admissions of only two non-nationals on previous occasions were an

admitted error. The admission of two previous non-nationals on its own does not constitute

a settled practice nor can an obvious error in procedure constitute a settled practice nor a

lawful promise. In so acting previously the Registrar would have plainly failed to comply

with the clear provisions of the LPA. It is clear on the authorities that a legitimate

expectation can only emanate from a lawful promise or practice. As held in Regina V.

Secretary Of State For Education And Employment, Ex parte Begbie [2000] 1 WLR 1115,

“the courts would not give effect to a legitimate expectation if would require a public

authority to act contrary to the terms of a statute.”

198. LATT Website: It is clear that the role of the LATT is limited to the issuing certificate of

fitness. The LATT is not responsible for the admission of persons to practise. By no stretch of

the imagination can it be said either on the evidence or in the statutory scheme of

admissions that the LATT acts or can act as the Registrar of the Supreme Court.

Furthermore, there could be no legitimate expectation of admission until the Registrar

verifies the applications and even then no expectation can arise as these applications are in

fact petitions to be placed for the Court’s considerations. Under the scheme of admissions a

103 United Policy Holders Group and others v The Attorney General of Trinidad and Tobago [2016] UKPC 17, paragraph 121

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Court is entitled to refuse an application for admission which is subject to appeal. No

representations were made by the Registrar to Ms. Hadeed that can give rise to any

expectation that she would be admitted other than by the requirement of the law.

Therefore, no legitimate expectation substantive or procedural was created.

199. Interpreting the LPA consistent with the RTC: This issue plainly does not arise in this

case. This is not an articulated ground to support a claim for breach of legitimate

expectations. Further and in any event any breach of the RTC is not a matter for this Court

to decide.

200. In so far as Ms. Hadeed asserts a breach of several Articles of the Revised Treaty of

Chaguaramas, those arguments are not open to Ms. Hadeed on her claims as framed. The

discrimination of section 15 (1A) has been assessed by the Court as in accordance with our

domestic law and legislative scheme within the context of the CLE Agreement and the CLE

Act.

201. Having disposed with the substantive relief sought, I now turn to the appropriate

remedies suitable in this case under the Court’s discretion of section 14 of the Constitution.

Part IV REMEDY

“Break a vase, and the love that resembles the fragments is greater than the love which took

its symmetry for granted when it was a whole.”-Sir Derek Walcott104

202. The fundamental human rights guaranteed by the supreme law has been broken.

Section 15(1A) of the LPA is in breach of section 4 (b) and section 4(d) of the Constitution.

The constitutional Court is also given a wide discretion in fashioning a suitable remedy to

remedy the breach, vindicate the right and as far as possible restore the litigant and indeed

restore the integrity of our fundamental human rights enshrined in our Constitution. In this

case it is, however, more suitable to make declaratory orders rather that any award of

damages or to “fix” the section on a presumption of the intention of Parliament.

104 “The Antilles: Fragments of Epic Memory by Sir Derek Walcott, Nobel Lecture, 7th December, 1992.

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Damages

203. There is very little evidence provided by the Claimant to substantiate a claim for

damages save for the fact that her constitutional rights have been beached and it has

caused her a deep sense of embarrassment among friends and family. She has felt

depressed as her family expended significant amount educating her which she thought

would be lost. She has not been able to apply for jobs as an attorney at law and as such her

earning capacity has been affected by the decision to refuse admission.

204. It is critical for Ms Hadeed to understand that simply making an application for

admission is no guarantee that she will be admitted to practice. To say that her admission is

a fait accompli makes a mockery of the power of jurisdiction of the Court to admit attorneys

as officers of the Court. It is the Court that grants petitions after considering them and the

Court is entitled to refuse an application on good grounds. The fact that in practice there is

a feeling with “mass admissions” that there is a tread mill processing of applications cannot

take away from the fact that no promise can be made until one hears the Court say “Your

prayers have been granted!” Only then can one obtain a practicing certificate and

legitimately seek employment as an attorney at law and. See section 24 of the LPA.

205. However, Ms Hadeed’s main claim has not, in my view, been about damages at all, not

even in vindication of her right. It is about the main aim of seeking to be admitted through

the section 15(1A) route. To that extent, the relief she seeks of any great or practical utility

to her is a declaratory relief and the reliefs sought by her attorney to replace the words “A

national of Trinidad and Tobago” with “any person” in section 15(1A) of the LPA.

206. The discretion to award damages is within the discretion of the Court based on the facts

and circumstances of the case. There is no automatic right to damages nor is it mandatory

that in all circumstances where a constitutional right has been breached, an individual is

entitled to be awarded damages.

207. In Romauld James v The Attorney General of Trinidad and Tobago [2010] UKPC 23,

Lord Kerr observed:

“24. Enforcement of the protective provisions may require more than mere recognition

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that a violation of those provisions has occurred. As Lord Nicholls said in Ramanoop,

“when exercising this constitutional jurisdiction the court is concerned to uphold, or

vindicate, the constitutional right which has been contravened” (para 18). The

constitutional dimension adds an extra ingredient. The violated right requires emphatic

vindication. For that reason, careful consideration is required of the nature of the

breach, of the circumstances in which it occurred and of the need to send a clear

message that it should not be repeated. Frequently, this will lead to the conclusion that

something beyond a mere declaration that there has been a violation will be necessary.

This is not inevitably so, however. Nor is it even the case that it will be required in all but

exceptional circumstances. Close attention to the facts of each individual case is

required in order to decide on what is required to meet the need for vindication of the

constitutional right which is at stake……………

27. In any event, the very fact of discrimination having occurred can inflict damage on

those who have been discriminated against. The sense of having been wronged, the

uncertainty over one’s status as a consequence of the discriminatory conduct and the

distress associated with having to resort to litigation in order to have the discrimination

exposed and corrected can all be recognised as damage, perhaps not in the

conventional personal injury sense, but damage nonetheless.

28. An injury suffered as a result of discrimination is no less real because it does not

possess tangible physical or financial consequences. And the difficulty in assessing the

amount of compensation for that type of injury should not deter a court from

recognising its compensatable potential. This concept was well expressed by Mummery

LJ in Vento v Chief Constable of West Yorkshire Police [2003] ICR 318, at 331: -

“50. It is self evident that the assessment of compensation for an injury or loss,

which is neither physical nor financial, presents special problems for the judicial

process, which aims to produce results objectively justified by evidence, reason

and precedent. Subjective feelings of upset, frustration worry, anxiety, mental

distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so

on and the degree of their intensity are incapable of objective proof or of

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measurement in monetary terms. Translating hurt feelings into hard currency is

bound to be an artificial exercise. As Dickson J said in Andrews v Grand & Toy

Alberta Ltd (1978) 83 DLR (3d) 452, 475-476, (cited by this court in Heil v Rankin

[2001] QB 272, 292, para 16) there is no medium of exchange or market for non-

pecuniary losses and their monetary evaluation: ‘is a philosophical and policy

exercise more than a legal or logical one. The award must be fair and reasonable,

fairness being gauged by earlier decisions; but the award must also of necessity

be arbitrary or conventional. No money can provide true restitution.’

51. Although they are incapable of objective proof or measurement in monetary

terms, hurt feelings are none the less real in human terms. The courts and

tribunals have to do the best they can on the available material to make a

sensible assessment, accepting that it is impossible to justify or explain a

particular sum with the same kind of solid evidential foundation and persuasive

practical reasoning available in the calculation of financial loss or compensation

for bodily injury.

35. I do not understand Lord Nicholls in this passage to be suggesting that, in principle,

compensation should normally be awarded. What, as it seems to me, he was at pains to

point out was that a violation of someone’s constitutional rights will commonly call for

something more than a mere statement to that effect. This is required in order to reflect

the importance of the constitutional right and the need for it to be respected by the

state authorities. A risk of the devaluation of such rights would obviously arise if the

state could expect that the most significant sanction for their being flouted was a

declaration that they had been breached……..

36. To treat entitlement to monetary compensation as automatic where violation of a

constitutional right has occurred would undermine the discretion that is invested in the

court by section 14 of the Constitution. It would also run directly counter to

jurisprudence in this area. In Inniss v Attorney General of St Christopher and Nevis

[2008] UKPC 42, in considering this issue Lord Hope of Craighead said this in para 21: -

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“The question … is whether a declaration that there has been a contravention of

s 83(3) would be sufficient relief for the Appellant in the circumstances. The

function that the granting of relief is intended to serve is to vindicate the

constitutional right. In some cases a declaration on its own may achieve all that

is needed to vindicate the right. This is likely to be so where the contravention

has not yet had any significant effect on the party who seeks relief.”

37. The very least that these statements make obvious is that there will be cases where

the vindication of the constitutional right will be achieved by the making of a

declaration. Where there has been no major impact on the claimant, a declaration is

more likely than not to suffice….”

208. See also Central Broadcasting Services Ltd. v. The Attorney General, Civil Appeal 216 of

2009 Narine JA.105

105 In delivering the judgment of the Court restated the principles governing the award of vindicatory damages in constitutional motions. The Honourable Justice of Appeal stated at para 47:

“The conceptual difference between compensatory damages and vindicatory damages for breach of a constitutional right was enunciated by Lord Nicholls in the case of The Attorney General of Trinidad and Tobago v. Siewchand Ramanoop (2005) UKPC 15 at paragraphs 18 and 19: “18. When exercising this constitutional jurisdiction, the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases, more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide, because the award of compensation under s 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminous with the cause of action at law. 19. An award of compensation will go some distance toward vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches. All these elements have a place in this additional award. ‘Redress’ in s 14 is apt to encompass such an award if the court considers it is required having regard to all the circumstances. Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object. Accordingly, the expressions ‘punitive damages’ or ‘exemplary damages’ are better avoided as descriptions of this type of additional award.” (emphasis added) 48. Subsequent pronouncements of the Privy Council have emphasized that the purpose of an award of vindicatory damages is not to punish the executive but to vindicate the right. However, a legitimate purpose of such an award is to deter further breaches by the executive. The size of the award is at the discretion of the trial judge. It will depend on the nature of the particular infringement and the

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209. Similarly in Suratt the Board held that whether or not the non-implementation of the

Equal Opportunities Act was properly to be regarded as having deprived the appellants of

protection of the law, in the circumstances of the case, the making of the declaration was

proper and sufficient redress to be afforded to the appellants under s. 14 of the

Constitution. Declaratory relief by itself is sufficient to vindicate the constitutional right of

Ms. Hadeed that was breached. Ms. Hadeed is not entitled to damages in light of the

Court’s view that that the section ought to be declared unconstitutional. Further and in any

event, the final disposition of this case will not bring any practical relief for Ms. Hadeed save

for removing the discriminating pathway from our legal practice.

Declarations, Severance and Modification

210. Ms. Hadeed seeks an order striking through the words “a national of Trinidad and

Tobago” appearing in section 15(1A) of the LPA and replacing it with “any person.”

Alternatively, she submits that the Court has the power to make a narrower order replacing

or severing the words “A national of Trinidad and Tobago” and read into the section “A

national of a CARICOM Member State.”

211. In my view, it is sufficient to make the declaration that section 15(1A) of the LPA is in

beach of the constitutional rights of section 4(b) and section 4(d) of the Constitution and

should be struck down.

212. However, I stop short of legislating and reforming section 15(1A) which clearly is a

matter for Parliament. Indeed, having regard to the heated debates on Parliament on this

issue, it is hardly a place for this Court to now intervene to legislate the outcome. The Court

can give suitable guidance and possible solutions but the final say lies in the bosom of the

population by their duly elected representatives.

213. I would not therefore accede to Ms. Hadeed’s request for an order striking through the

words “a national of Trinidad and Tobago” appearing in section 15(1A) of the Legal

circumstances of the case. See: Tamara Merson v. Drexel Cartwright and The Attorney General of the Bahamas (2005) UKPC 38 at paragraph 18, and Angela Inniss v. Attorney General of Saint Christopher and Nevis (2008) UKPC 42 at paragraph 27.”

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Profession Act and replacing it with “any person”.

214. In The Attorney General of Belize v Zuniga and others [2014] CCJ 2 (AJ), the Court

provided a review of the severance doctrine in relation to the Belize Constitution and

observed:

“[88] In mandating that a law inconsistent with the Constitution is void to the extent of

its inconsistency, the Constitution sanctions the principle of severance and encourages

its exercise where possible. When faced with a statute that contains material that is

repugnant to the Constitution the court strives to remove the repugnancy in order, if

possible, to preserve that which is not. As long as the constitutional defect can be

remedied without striking down the entire law, the court is obliged to engage in

severance. In some cases it is not difficult to do this. But in other cases it is necessary to

invalidate an entire Act so that, if it wishes, Parliament can have another go at the

legislation. The court will do this because, broadly speaking, what remains after judicial

surgery is incoherent or so impairs the legislative object that the constitutionally valid

part cannot be said to reflect what Parliament originally intended.

[89] The doctrine of severance is not free from controversy, but it is an important

judicial tool regularly employed by courts as part of their responsibility simultaneously

to uphold constitutional supremacy and maintain the separation of powers. The classic

statement on severability is regarded to be that given by Viscount Simon in Attorney-

General for Alberta v. Attorney-General for Canada when he stated that:

"The real question is whether what remains is so inextricably bound up with the

part declared invalid that what remains cannot independently survive or, as it

has sometimes been put, whether on a fair review of the whole matter it can be

assumed that the legislature would have enacted what survives without enacting

the part that is ultra vires at all."

[90] In performing the exercise of severance the court has no remit to usurp the

functions of Parliament. Assuming severance is appropriate, the aim of the court is to

sever in such a manner that, without re-drafting the legislation, what is left represents a

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sensible, practical and comprehensive scheme for meeting the fundamental purpose of

the Act which it can be assumed that Parliament would have intended. The court is

entitled to assess whether the legislature would have preferred what is left after

severance takes place to having no statute at all. If it can safely be assessed that what is

left would not have been legislated, then severance would not be appropriate. As

Demerieux notes, severance involves speculation about parliamentary intent.60 The

court seeks to give effect, if possible, to the legitimate will of the legislature, by

interfering as little as possible with the laws adopted by Parliament. Striking down an

Act frustrates the intent of the elected representatives and therefore, a court should

refrain from invalidating more of the statute than is necessary.

[91] In Schachter v Canada, the Supreme Court of Canada indicated that severance will

be warranted where a) the legislative objective is obvious and severance or the reading

in of words would further that objective or constitute a lesser interference with that

objective than would striking down; b) the choice of means used by the legislature to

further that objective is not so unequivocal that severance/reading in would constitute

an unacceptable intrusion into the legislative domain; and c) severance or reading in

would not involve an intrusion into legislative budgetary decisions so substantial as to

change the nature of the legislative scheme in question………

[93] It is axiomatic that after a court has severed the unconstitutional portion of an

impugned law, that which remains will never be precisely what Parliament had intended

originally to enact. Further, a court can never know the intent of each legislator who

voted to enact a statute. No court can ever be perfectly sure about parliamentary

intent. If courts took it upon themselves to sever only after they possessed such

certitude, then severance will never actually take place.”

215. Section 2 of the Constitution provides that “any other law that is inconsistent with this

Constitution is void to the extent of the inconsistency”. Furthermore, section 14(1) of the

Constitution confers wide powers to, “subject to subsection (3), make such orders, issue

such writs and give such directions as it may consider appropriate for the purpose of

enforcing or securing the enforcement of, any of the provisions of this chapter to the

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protection of which the person concerned is entitled.” I agree that the provision under

section 2 which enables the Court to void legislation to the extent of any inconsistency is

not the only relief that may be made by the Court. The Court can strike down legislation

that is inconsistent with the Constitution. It can also read down or sever the offending part

of the legislation or read into the legislation words which will ensure that the provision is as

faithful as possible to the Constitution as well as to the scheme of legislation enacted by the

Parliament. Rampersad J’s decision in Jason Jones v The Attorney General CV.2017-00720 is

an example of the creativity of our constitutional Courts and the wide powers conferred

under the Constitution to make such appropriate orders to enforce the constitutional rights

that are breached.

216. The Court must act cautiously, however, in any act of “legislating” either by severance

or modification. Severance requires the Court to define carefully the extent of the

inconsistency between the offending provision of the statute and the requirements of

sections 4 and 5 and then declare inoperative the inconsistent portion and such other

portions which it cannot be safely assumed that the legislature would have enacted without

the inconsistent portion. In Hinds v the Attorney General (1975) 24 WIR 326 at 343, Lord

Diplock stated as follows:

“Under section 2 of the Constitution the provisions of the Gun Court Act 1974 dealing

with these two matters are therefore void. The final question for their Lordships is

whether they are severable from the remaining provisions of the Act so that the latter

still remain enforceable as part of the law of Jamaica.

Regarded purely as a matter of drafting they are readily severable. All references to the

Full Court Division, the Review Board and to the mandatory sentence of detention could

be struck out, and what was left would be a grammatical piece of legislation requiring

no addition or amendment. But this, though it may point strongly to severability, is not

enough. The test of severability has been laid down authoritatively by this Board in

Attorney General for Alberta v Attorney General for Canada [1947] A.C. 503, 518:

“The real question is whether what remains is so inextricably bound up with the part

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declared invalid that what remains cannot independently survive or, as it has sometimes

been put, whether on a fair review of the whole matter it can be assumed that the

legislature would have enacted what survives without enacting the part that is ultra

vires and all”.

217. The dominant question in exercising the power of severance is to determine the

intelligibility of the provisions after the severance either linguistically or as a matter of

policy. Of course, striking down section 15(1A) can easily be “severed” from section 15.

However, the offending part of this section “a national of Trinidad and Tobago” makes the

remainder of section 15(1A) unintelligible.

218. Reading into and modifying are also not options available in this case. Reading into a

section also requires the inconsistency to be defined. Lamer CJ in The Queen v Shalom

Schachter [1992] 2 R.C.S. 679 at page 698 states as follows:

“This same approach should be applied to the question of reading in since extension by

way of reading in is closely akin to the practice of severance. This difference is the

manner in which the extent of the inconsistency is defined. In the usual case of

severance the inconsistency is defined as something improperly included in the statute

which can be severed and struck down. In the case of reading in the inconsistency is

defined as what the statute wrongly excludes rather that what is wrongly includes.

Where the inconsistency is defined as what the statute excludes, the logical result of

declaring inoperative that inconsistency may be to include the excluded group within

the statutory scheme. This has the effect of extending the reach of the statute by way of

reading in rather than reading down.”

219. The Court must not intrude into the legislative sphere of activity. This is equally

important in reading into a section and modification. In Schachter, Lamer CJ observed at

page 700:

“Reading in is as important a tool as severance in avoiding undue intrusion into the

legislative sphere. As with severance, the purpose of reading in is to be as faithful as

possible within the requirements of the Constitution to the scheme enacted by the

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Legislature. Rogerson makes this observation at p. 288:

Courts should certainly go as far as required to protect rights, but no further.

Interference with legitimate legislative purposes should be minimized and laws

serving such purposes should be allowed to remain operative to the extent that

rights are not violated. Legislation which serves desirable social purposes may

give rise to entitlements which themselves deserve some protection.”

220. In Roodal v The State Cr. App. No. 64 of 1999 de la Bastide CJ observed at page 17:

“..is sometimes perfectly legitimate for the court to fill such gaps by way of modification

under section 5 (1) provided that in doing so the court does not arrogate to itself a law-

making function that should properly be left to the legislature. When may the court fill

the gap and when should it refrain from doing so? We suggest that it depends on

whether there is a simple and obvious means of filling the gap in a way that will achieve

conformity with the Constitution and is in fact dictated by the Constitution. In such a

case the court may fill the gap by modification. Where however the solution is not so

simple, and filling the gap involves the making of a choice or the establishment of a

policy, these are matters which the court should leave to the legislature. It appears to us

that these are the considerations which limit the power of the court to modify under

section 5 (1), rather than the starkness of the conflict.”

221. As section 15(1A) of the LPA does not constitute existing law, section 5 of the

Constitution Act has no application to empower the Court to modify or adapt section 15(1A)

to bring it into conformity with the Constitution.

222. Further, this Court must also be sensitive to the legislative policy and motives and not to

read in or sever so as to achieve a purpose which is diametrically opposed to the policy of

the legislature set out in the section. To do so in this case would extend the benefits under

section 15 (1A) to a much larger group or category than ever could have been contemplated

by Parliament.

223. Where a Claimant seeks to extend the benefit under a legislative provision to a

previously excluded group (as in the instant case), the Court will be particularly cautious

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given that the extension may constitute a marked change in the thrust of the original

legislative intention. Pages 683 and 684 of the headnote in Schachter state:

“In cases where the issue is whether to extend benefits to a group not included in the

statute, the question of the change in significance of the remaining portion sometimes

focuses on the relative size of the two relevant groups. The assumption that the

legislature would have enacted the benefit is more often sound where the group to be

added is smaller than the group originally benefitted. This assumption, however, is not

necessarily safe when the group to be added is much larger than the group originally

benefitted. This is not because of the numbers per se. Rather, the numbers may

indicate that for budgetary reasons, or simply because it constitutes a marked change in

the thrust of the original program, it cannot be assumed that the legislature would have

passed the benefit without the exclusion.

It is sensible to consider the significance of the remaining portion when asking whether

it is safe to assume that the legislature would have enacted the remaining portion. If

the remaining portion is very significant, or of a long standing nature, it strengthens the

assumption that it would have been enacted without the impermissible portion.”

224. I therefore agree with the LATT submissions that:

a) The reading in the Claimant’s words would effect a result that is in conflict with the

declared legislative object of Parliament to grant benefits only to nationals of

Trinidad and Tobago. The Court will not engage in an act of speculation on whether

it would have envisioned or approved of a policy for all nationals.

b) The reading in the Claimant’s words would not remove the stain of illegitimacy. It

would simply extend the benefit of deeming qualifications in breach of the CLE

Agreement to a much larger group of persons.

c) Section 15 (1A) was inserted by the Legislature some fourteen (14) years after the

LPA was initially enacted. It is very much a stand-alone provision and can be easily

extricated from the Act. After striking down section 15 (1A) the rest of section 15

represents a sensible, practical and comprehensive scheme for meeting the

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fundamental purpose of the Act which it can be assumed that Parliament would

have intended.

d) Removing section 15 (1A) preserves the qualifications prescribed by law as set out in

the CLE Agreement, namely, the Legal Education Certificate and maintains the

legitimacy of section 15 in conformity with the CLE Act.

225. The most appropriate order will therefore be a declaration that the benefits accorded to

nationals of Trinidad and Tobago by section 15(1A) amount to discrimination against the

Claimant on the basis of her origin and nationality, and amount to discrimination under

section 4(b) and 4(d) of the Constitution. Section 15(1A) is struck down as invalid and

unconstitutional.

226. Costs: The general rule is that the successful party is entitled to its costs. Although the

Claimant has succeeded in obtaining a declaration that section 15(1A) of the LPA is

unconstitutional, she has failed on her grounds that it constituted a breach of the

protection of the law or infringed the right to liberty and property or on her claim for

damages. Significantly, without modifying the words of section 15(1A), the Claimant’s

practical remedy is left in the hands of Parliament. Furthermore, I noted that in her

narrative, Ms. Hadeed did not mention whether she complied with the relevant pre-action

protocols. In these circumstances, it is the Court’s preliminary view that the Claimant is not

entitled to her costs of these proceedings and each party shall bear their own costs. Unless

the parties file submissions on the question of costs within fourteen (14) days of this order,

my order on costs shall be “No order as to costs.”

A THERAPEUTIC SOLUTION?

“The time will come

when, with elation

you will greet yourself arriving

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at your own door, in your own mirror

and each will smile at the other's welcome”- Sir Derek Walcott106

227. Lord Hoffman recognised the Court’s task of constitutional interpretation is to mediate

the tensions between rivalling values and working out the messy details of the practical

application of rights to particular circumstances. Of course the use of the word “mediate”

strikes a chord. The Claimant and the Defendant recognised that many persons have and

continue to benefit from the section 15(1A) route. Indeed since its introduction in 2000107

there is no doubt that many persons desirous of making law their profession would have

used this route mindful of the shortage of spaces at the HWLS. The LATT has submitted that

the Court ought not to consider the legal and social consequences of declaring a law invalid,

it is its duty to so declare the law inconsistent with the Constitution. At the same time it also

recognised in its recommendations to repeal section 15(1A),(c) and (d) that a period of two

years was required to serve as a transitory period.

228. The fundamental message is that a remedy is needed for the wider question of the

shortages of spaces in the law school and the responsiveness of the CLE to the demands of

Caribbean education. In my view, a Court should not simply make a declaration and move

on. A strict view of the separation of powers may suggest that is the case. However, judging

from “the therapeutic lens” provides the Court with the sensitivity and insight that the

impact the law has on those that are reliant on the benefits of the law.

229. Therapeutic jurisprudence is an approach to the study and application of law as a

therapeutic agent focusing on the impact of the law on the emotional and psychological

well-being of all participants in the justice system. In this way, Judges’ roles are broader

with a focus on helping parties even in difficult constitutional questions to move on from

the current dispute.108

230. It is manifestly obvious that section 15(1A) is but a piece of the larger question of

106 Love after love (1976) 107 Legal Profession (Amendment) Act No. 76 of 2000 108 Therapeutic Jurisprudence: New Zealand Perspectives, Warren Brookbanks and Practicing Therapeutic Jurisprudence: Law as a Helping Profession, Dennis P. Stolle, David B. Wexler, Bruce J. Winick

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Caribbean legal education and modernising the system of certification. It would be remiss of

this Court not to make suggestions and recommendations with a view of encouraging

amongst the parties a model of building consensus on the way forward as a consequence of

striking down section 15(1A) of the LPA.

231. The parties are therefore encouraged to urgently establish a Committee (the Defendant

together with the CLE, LATT and other stakeholders such as the Claimant and

representatives of external law students) to engage in consultation and discussions on the

issues of current quantitative and qualitative demands on admission to the practise of law.

They may consider:

The present demands for spaces in the laws schools and the curriculum and practical

training needs for the benefit of an improved legal profession.

The certification of further schools by the CLE to assist in any increase in demand or

the qualitative assessments of a suitable courses for those who have undertaken

external degree qualifications inclusive of LPC or BVC.

The certification of chambers and development of an evaluative course of

assignments approved by the CLE leading to an assessment of competence.

Expansion of the law schools to increase the intake of students if necessary.

Introducing a policy based on a Merit System for admission to the law school to all

holders of UWI and non-UWI graduates of comparable degrees in law.

Distance Learning Arrangements- Attending law school through “electronic means”.

Certifying private institutions by the CLE to administer the LEC program.

232. These are also the ideas emerging from previous reports. No doubt there are others.

The Court encourages the parties to build consensus to expeditiously adopt such measures

to give effect to the legal results of this dispute. To that extent the Court is prepared with

the consent of the parties to supervise any initiatives that they may wish jointly to

undertake or the mechanisms that can be established to enquire into and implement

reform of this area of the legal practice. The LATT has already made some useful

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suggestions and no doubt the task is not beyond the parties reach.

CONCLUSION

“The ideal Caribbean city….it would be so racially various than the cultures of the world – the

Asiatic, the Mediterranean, the European, the African – would be represented in it . . . Its

citizens would intermarry as they chose, from instinct, not tradition, until their children found

it increasingly futile to trace their genealogy.” -Derek Walcott109

233. I began this judgment with the importance of forging one’s own image, identity and self.

The pursuit of self and a national agenda which the Defendant asserts is a priority in this

case in legal education must comport with the fundamental rule of law. Even in the famous

Brexit decision110 the Supreme Court ruled that in spite of the referendum and expression

of popular will, the UK could not have snapped its fingers at the rule of law.

234. When lines are drawn by race, religion, origin, colour or sex to cast humans into sub

groups or classes conferring benefits on one group over another based on these artificial

lines, there is an inherent demeaning of one group’s sense of worth, pride, dignity and place

in our society. Our personal attributes of our identity celebrate the diversity of our common

humanity. They are not labels to minimise our participation in a society that has respect for

the dignity of the human person and the equal and inalienable rights. It is inevitable that we

must accept one another as equals, keeping faith with our aspirational view of a democratic

society in which all persons may, to the extent of their capacity, play some part in the

institutions of the national life. Social tags of race, colour, religion, origin which have

continuously split common human endeavour are therefore vacuous and meaningless in

evolving democracies with respect for the rule of law and equality before the law.

235. Artificially constructed social parameters become the anathema for national growth and

development. In our society of Trinidad and Tobago which is all inclusive and all-embracing

implicit in the vision of our society declared to exist in our preamble of our Constitution is

one that is inclusive, embracing, uplifting, celebrating differences and which dehors

109 The Antilles: Fragments of Epic Memory- Nobel Lecture (1992) 110 R (on the application of Miller and another) v Secretary of State for Exiting the Union [2017] UKSC 5

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discrimination and segregation.

236. Returning to the issues identified earlier in this judgment I have found that: The general

prohibition of discrimination set out in the Constitution on the ground of origin includes

nationality; discrimination on the ground of nationality is a personal characteristic or

feature of an identity; in any event nationality was the sole reason for treating the Claimant

differently; the relevant test to determine whether section 15(1A) of the LPA is a breach of

the right to equality before the law and equality of treatment set out in Annissa Webster

and Maha Sabha; the Claimant has discharged the burden of establishing a suitable

comparator to establish a difference in treatment which is discriminatory; the State has

failed to demonstrate a reasonably legitimate and proportionate reason to justify the

difference in treatment; the Claimant however has failed to demonstrate a breach of the

right to property, liberty, protection of the law and RTC breaches. The suitable remedies for

the Claimant is the declaratory relief set out in Part IV of this judgment.

237. In this Trinidad and Tobago for all, we should lead by example in forging a common

space and afford common respect for our regional neighbours. The nationalism implicit in

section 15(1A) runs the risk of offending the West Indian instinct against nationality

discrimination. It must co-exist with a rationally legitimate and proportionate response to

the needs of our society in legal education in conformity with our obligations under the CLE

Agreement and building of an indigenous Caribbean legal education and practice. No

pathway to the legal profession regarded as the gatekeeper of justice must be infected with

prejudice or discrimination.

238. Indeed, as the CLE Agreement and CLE Act demonstrates, our quest is enjoined together

with those of our Caribbean partners in fashioning a new social model together even the

possibility of a future Caribbean nationality.

“Sovereignty is one thing; contractual obligation is another. We cannot agree to act

together in particular ways and remain free to act as we please or as every passing

advantage induces….That will mean giving up insular prejudices and broadening our

perceptions from a focus on what we lose to what we gain- for each must give so all may

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have a better chance to prosper. But, most of all, it requires us to accept that each of us

belongs both to our own country and to our wider West Indian nation. It is admittedly not

a nation with a flag or an anthem, a constitution or a government; but it is a nation in the

wider sense of being our single West Indian homeland: the heartland of our kinship.”111

Vasheist Kokaram

Judge

111 Time for Action: The Report of the West Indian Commission, page 467

claim no. cv2018-02726 in the matter of the...

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