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THE THREE-FIFTHS MAJORITY GAMBLE
Last Tuesday in the Senate, the Government made good on its promise to cease bringing to Parliament any legislation that may require a three-fifths majority in cases where it is possible that there might be the need for such a majority owing to the fact that there might be a human rights infringement.
The bill before the Senate for Second Reading last Tuesday was the Miscellaneous Provisions (Trial By Judge Alone) Bill 2017. In seeking to make amendments to the Offences Against the Person Act and the Criminal Procedure Act, the bill was making adjustments to the existing practice of trial by jury.
There is a view that such an alteration to this hallowed process ought to have been accompanied by a certificate confirming that the bill was going to be inconsistent with sections 4 and 5 of the Constitution and that a three-fifths majority would be required. However, the Government has decided to gamble on proceeding with this legislation without adopting the three-fifths majority option.
When alterations to the court trial process have been made in the past, Parliament was presented with a bill that required a three-fifths majority in both Houses of Parliament. This was very clear in the case of the amendment to the Evidence Act that was undertaken by Act No 2 of 1990 which abolished the right of the accused to make an unsworn statement from the dock during a trial. That bill was passed with a three-fifths majority in both Houses.
There was perhaps an even greater cause for concern with the current bill before the Senate in which two of the amendments to the Offences Against the Person Act appear to traverse ground upon which the judiciary has already made clear pronouncements of unconstitutionality.
In his contribution to the debate, Opposition Senator Gerald Ramdeen told the Senate that the proposed amendments to sections 4A(6) and 4A(7) had wording that had already been assessed by Mr Justice Smith in July 2009 and Mr Justice Kokaram in April 2010. In both instances, these judges had declared these sections unconstitutional.
The gamble by the Government in bringing to Parliament legislative clauses that had already been deemed unconstitutional is startling. Parliament cannot cure the unconstitutionality by simply repeating them again for enactment with a word or two changed here and there.
However, Parliament does have the right to enact legislation that is at variance with the human rights provisions of the Constitution if it brings such legislation to Parliament with a requirement for a three-fifths majority. The Government has decided that it no longer intends to proceed on such a basis.
In his order in the matter of Evelyn v Attorney General (CV 2007-04514), Mr Justice Smith held, inter alia, that:
“2. Section 4A(6) of the Offences Against the Person Act Chapter 11:08 be modified by deleting the words ‘until the President’s pleasure is known’ and substituting therefore the words ‘until the Court’s pleasure is known’.
3. Section 4A(7) of the Offences Against the Person Act Chapter 11:08 is unconstitutional as it offends against the principle of the separation of powers enshrined in the constitution.”
In his order in the case of Mukesh Maharaj v Attorney General (Claim No 2009-00409), Mr Justice Kokaram held at paragraph 48 of his judgement as follows:
“The Claimant’s sentence should therefore be modified to read ‘at the Court’s pleasure’ instead of ‘the President’s pleasure’. In this way the section is sanitized from any element of unconstitutionality. On the other hand, however, section 4A(7) OAP is wholly unnecessary and is in conflict with the constitutional principles discussed. This section purports in its entirety to deal with the manner and the length of the client’s detention. It usurps the judicial function of sentencing and is unconstitutional. There is no useful purpose to be served in modifying this section and it is struck down altogether.”
The fact that both sections have been brought back to Parliament in this Trial By Judge Alone Bill without any heed being paid to the opinions of these two judges is a matter of grave concern. According to the Bill Essentials on the Parliament web site, the words that offended both Justices Smith and Kokaram in relation to “the President’s pleasure” are still there. In respect of section 4A(7), the violation of the separation of powers principle that offended both Justices Smith and Kokaram are still there.
So why did the Government bring these clauses back to Parliament virtually word-for-word armed with the knowledge that two High Court justices had already deemed them unconstitutional, and in one instance had proposed wording that could have cured section 4A(6)? Section 4A(7) seems incurable.
What is the gamble here? Senator Ramdeen was passionate in his presentation last week. He had been praised before by Minister of Finance Colm Imbert for his work on the FATCA Joint Select Committee. Now he has brought before the Parliament a matter of substance that will require a response from the Attorney General. Why is the Government gambling on unconstitutionality as part of its three-fifths majority avoidance strategy?