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THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO APPELLANT AND ANDFELIX AUGUSTUS DURITY RESPONDENT [2007] TTCA 9 (30 April 2007)

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

HCA No. 569 of 1997

Civil Appeal No. 163 of 2004

IN THE MATTER OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO

AND

IN THE MATTER OF AN APPLICATION BY FELIX AGUSTUS DURITY RETIRED SENIOR MAGISTRATE, A PERSON ALLEGING THAT THE PROVISIONS OF SECTIONS 4 AND 5 OF THE SAID CONSTITUTION PROTECTING HIS FUNDAMENTAL RIGHTS AND FREEDOMS ENSHRINED THEREIN AND IN PARTICULAR SECTIONS 4(a) AND 4(b) AND SECTIONS 5(2)(e) AND 5(2)(h) HAVE BEEN AND ARE BEING AND ARE LIKELY TO BE CONTRAVENED IN RELATION TO HIM FOR REDRESS IN ACCORDANCE WITH SECTON 14 OF THE SAID CONSTITUTION

BETWEEN

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Appellant

AND

FELIX AUGUSTUS DURITY

Respondent

PANEL: S. Sharma C.J.

M. Warner J.A.

I. Archie J.A.

APPEARANCES: Mr. R Martineau S.C. and Ms. Cielto for the Appellant

Mr. S. Marcus S.C. and Ms. J. Hudson-Phillips for the Respondent

DATE OF DELIVERY: 30^th APRIL 2007

I agree with the judgment of Archie J.A. and have nothing to add.

S. Sharma

Chief Justice

While I agree with the reasoning of Archie J.A. that the respondent has not proven any constitutional breach, as I concluded in Civil Appeal No. 140 of 1998, certiorari would not have been an appropriate remedy in respect of the prolonged period of suspension. I too would allow the appeal.

M. Warner

Justice of Appeal

JUDGMENT

Delivered by Archie, J.A.

1. This appeal was concerned with the question whether the suspension of the respondent and the initiation of disciplinary action against him by the Judicial and Legal Services Commission (“the JLSC”) contravened his fundamental rights guaranteed under sections 4(a), 4(b), 5(2)(e) and 5(2)(h) of the constitution. This judgment also deals with the subsidiary issue raised by the respondent of whether the delay in prosecution of the disciplinary charges contravened his fundamental right to the protection of the law.

2. A clear understanding of the extraordinary sequence of events that gave rise to this matter is crucial, if the actions of the JLSC are to be understood in their proper context.

3. One Mr. Boodoo appeared before the respondent, who was then a senior magistrate, on February 20^th, 1989 on two charges of larceny. The respondent fixed bail at $25,000.00 (by way of cash deposit) on the application of counsel. On March 3^rd, 1989 another attorney acting or purporting to act on behalf of Mr. Boodoo applied to a judge in chambers for a review of that decision. The judge varied bail and increased it to $50,000.

4. No doubt disappointed by that decision, Mr. Boodoo, when he next appeared before the respondent on March 20^th, 1989 sought, through counsel, to have his bail reduced to the original sum on the basis that the application to the judge had been made without his authority. It appears from the record to be undisputed that this was said in the presence of the attorney who made the application before the judge and the inference apparently is that there was no demurral on his part. At any rate, the respondent, without further inquiry, reinstated his order of February 20^th, 1989.

5. Some trenchant observations are pertinent at this stage:

   1. It is a grievous breach of professional ethics for an attorney to make an application without the actual or implied authority of a client. If that did happen, it should have been reported to and addressed by the disciplinary committee;

   2. If it did not happen, then it would mean that the magistrate was misled as a ploy to circumvent an unfavourable order of a high court judge. That would have been an equally grievous offence. It is astonishing that no questions appear to have been asked of counsel at that stage;

   3. In any event, an order of a high court judge, whether obtained in error or as a result of a misrepresentation, is a subsisting and effective order of the high court until it is set aside. A magistrate has no power to do so. Much of the argument in this case (even at the level of the Privy Council) appears to have proceeded on the basis that the respondent was exercising a ‘judicial discretion’ or ‘judicial function’ without considering whether he was knowingly acting without jurisdiction, and the consequences, if any. That was the point raised by the second charge!

   4. It would be disastrous for our jurisprudence, if in the mistaken notion that one were protecting judicial independence, one were to entertain the idea that an inferior court could simply ignore the order of a superior court just because it held a genuine belief that the superior court had been misled. Such a belief may negate ‘bad faith’ and is perhaps relevant to the question whether there has been ‘misconduct’. The fact is that we function within a hierarchical system. It is a part of every judicial officer’s duty to respect and conform to that hierarchy.

   5. In that regard, I do not think that excerpts from the judgment in Privy Council Appeal No. 52 0f 2000, where in discussing the charges brought against the respondent their Lordships commented at paragraph 8 “There was no allegation that Mr. Durity acted in bad faith” should be accorded a significance beyond that warranted by their immediate context. If ‘good faith’ could provide absolution for disobedience to the rulings, judgments or orders of superior courts, then the administration of justice would swiftly be brought into disrepute and disarray.

6. It is not, to my mind, an indisputable proposition that once a judicial officer is purporting to exercise a “judicial function” his actions cannot be the subject of disciplinary proceedings. For example, how, other than misconduct, would one categorise the behavior of a judge who repeatedly refused to follow clear and binding authorities that were brought to his attention, (or deliberately exceeded his jurisdiction)? On the other hand, misconduct is not established merely because a judicial officer acts without jurisdiction. In such a case, intent is relevant.

7. It is against this background that the decisions of the JLSC to suspend and subsequently charge the respondent must be viewed. In Privy Council Appeal No. 52 0f 2000, the Board expressed the opinion that, assuming the respondent acted in good faith, a mistaken discharge of his function could not constitute the offense of ‘indiscipline’ nor could a finding of ‘misconduct’ be properly made. The Board was apparently prepared to make that assumption despite the charge that alleged that the respondent granted bail to Mr. Boodoo ‘knowing’ that he had no authority to rescind the order of Lucky, J.

8. We were therefore constrained to proceed on the assumption that the decision of the JLSC to charge and suspend the applicant was wrong, albeit with the benefit of hindsight. However, there is also no allegation that the JLSC acted in bad faith. We must therefore also proceed on the basis that it acted under a misapprehension or misinterpretation of the regulations and the law. There is no allegation of a deliberate abuse of power.

9. That is important because the mere preferring of a charge that is subsequently shown to be unsustainable in law cannot constitute a breach of the right to the protection of the law¹. The protection lies in the trial process during which any illegality can be exposed and dealt with by the tribunal by dismissing the charges or taking any other appropriate action or, alternatively, by way of an application for judicial review.

10. The JLSC notified the respondent, by a letter dated 10^th August 1989, that he was suspended from duty with immediate effect. The JLSC purported to act in accordance with Regulation 88(1) of the Public Service Commission Regulations (adopted mutatis mutandis by the JLSC). The power to suspend under Regulation 88 is exercisable if the JLSC becomes aware of any act of indiscipline or misconduct and is of the opinion that the public interest or the repute of the Public Service requires it. It is usually exercised when disciplinary action is commenced or about to be commenced.

11. Although the Chief Magistrate had written to the respondent in March and April 1989 requesting an explanation of his actions, and the respondent had replied asserting immunity from disciplinary action on the basis that he ‘acted judicially’, no further steps were taken to advance the disciplinary proceedings for a period of 33 months. During this time the respondent, (by letter dated 24^th March 1992), sought the intervention of the Attorney General, who refused his request and indicated that the Solicitor General had been informed by the Director of Personnel Administration that the respondent “could expect to hear from him”.

12. By letter dated 28^th May 1992 the respondent was informed that Master Doyle was appointed to investigate allegations of misconduct against him and Master Doyle subsequently invited him to respond to the allegations by letter dated 2^nd June 1992, to which the respondent replied on the 10^th June 1992.

13. The respondent heard nothing further until 15^th December 1992 when he was notified that charges had been preferred against him. The relevant particulars accused him of two wrongs committed “while performing the duties of Senior Magistrate”. The alleged breaches were:

    1. Granting bail to Mr. Boodoo contrary to the lawful order of the Honourable Mr. Justice Lucky;

    2. Granting bail to Mr. Boodoo knowing or while he ought to have known that he had no lawful authority to rescind the order of the Honourable Mr. Justice Lucky.

14. His actions were alleged to have constituted negligent and improper performance of his duties as a senior magistrate and to have brought the Judicial and Legal Service into disrepute, all contrary to his implied terms and conditions of service as a senior magistrate. The respondent sought to have the decisions of the JLSC to charge and suspend him set aside by way of an application for judicial review. He was unsuccessful. He subsequently filed this constitutional motion in which he contends that the laying of the charges in these circumstances, and all consequential steps contravened his fundamental rights and in particular:

a. The Right to Enjoyment of Property – Section 4(a);

b. The Right to Protection of the Law – Section 4(b);

c. The Right to a Fair Hearing – Section 5(2)(e);

d. The Right to enjoy Procedural Safeguards– Section 5(2)

15. He succeeded before the trial judge on one ground, that is, the Right to the Protection of the Law. The appellant appealed against that decision and the respondent cross-appealed in respect of the dismissal of his motion on the other grounds. The respective grounds of appeal are summarized below:

The appellant challenged the judge’s decision on the following grounds:

1. The learned judge erred in law in holding that the right of a magistrate to non-interference in exercising his judicial function in this case was part of the protection of the law afforded to persons under section 4 of the constitution.

2. The learned judge erred in holding that, on the facts of the case, the delay on the part of the respondent in appointing an investigating officer breached his right to protection of the law and/ or deprived him of procedural safeguards.

3. The award of damages was an erroneous estimate of the damage suffered and was awarded in circumstances in which the learned Judge was not entitled so to do and against the weight of the evidence.

4. The decision of the learned judge was against the weight of the evidence.

The respondent also appealed the decision on the following grounds:

1. The learned trial judge erred in law by failing to hold that the respondent’s right not to be deprived of property except by due process of law was breached.

2. The learned trial judge erred by failing to hold that the respondent was deprived of his right to a fair hearing in respect of the charges against him.

3. The award of damages was inordinately low having regard to the consequences and the effects on the respondent of the suspension/ prolonged suspension disclosed by the evidence and having regard to the inconvenience and distress suffered by the respondent as a result of the various breaches of his fundamental rights occasioned by the appellant herein and having regard to all the circumstances of the case.

At the hearing of this appeal, the respondent did not pursue the first two grounds of the cross-appeal. Arguments therefore focused on whether he had been deprived of the protection of the law (in particular by the very long and unjustifiable period of suspension) and, if so, what was the appropriate quantum of compensation.

The Right to the Protection of the Law

16. The language of section 4 of the constitution makes it clear that the rights enshrined therein are enjoyed in an individual capacity. That this is so is made clearer by section 14, which gives a right of access by an applicant to the courts only if one or more of the fundamental rights provisions “has been is being or is likely to be contravened in relation to him”. The concept of non-interference with the judiciary by the executive, which is embodied in the principle of separation of powers, exists for the benefit of the society as a whole and does not confer an individual right.

17. A wrongly taken action on the part of an executive body is always subject to judicial review but I am unaware of any judicial authority that converts the right of the judiciary to be protected from interference with its independence into an individual fundamental right. Nothing in the judgment of the Privy Council in Thornhill v The Attorney General (1979) 31 W.I.R. 498 or Durity v The Attorney General [2002] UKPC 20 is to that effect.

18. It is true that judges must enjoy individual and institutional independence for the doctrine of separation of powers to be meaningful, but they enjoy it qua the office of judge, not in a personal capacity and not for their own benefit. The right to the protection of the law under section 4(a) of the constitution is expressed to be an ‘individual’ right. The idea that, once a wrong has been committed that offends against some general constitutional principle, there must be a remedy under section 14 is misguided. The fundamental rights are clearly defined in sections 4 and 5 of the constitution. Unless the fact pattern fits one of the definitions on the list, there is no breach of any fundamental right. That was the point made by the Privy Council in Harrikissoon v The Attorney General [1980] AC 265.

19. If the JLSC exceeded its jurisdiction by attempting to charge the respondent, then the classical and appropriate remedy is judicial review.

19. For that reason, I do not agree that the respondent’s suspension breached his right to the protection of the law from the outset. It does not matter whether the JLSC’s decision to suspend him was wrong because there is no congruence between illegality and breach of protection of the law. The protection of the law exists to address illegalities.

19. Once that distinction is understood, the question of delay by the JLSC is only relevant if it was such as to “make a mockery of [his] right to have a determination of the matter by the competent court or tribunal”². Delay, by itself is not a ground for relief. It must be shown to result in an inability for the applicant to receive a fair ‘trial’³ or to be oppressive or prejudicial. The remedy in such a case ordinarily lies in the power of the court to stay proceedings. Judicial review is the classical and appropriate remedy for a situation such as this where the JLSC is alleged to have abused its power. Where appropriate, damages are also available on an application for judicial review. The authorities are clear on the fact that, in Trinidad and Tobago, there is no constitutional right to a trial within a reasonable time except as an incident to the right to a fair trial⁴.

19. The availability of another remedy does not always preclude constitutional relief but the circumstances of the case must include some feature that makes it appropriate to take that course⁵. If, for example, it had been alleged or there was evidence that the delay was politically or racially motivated then that might bring it within the realm of constitutional relief since it would fall under one of the specifically prohibited grounds of discrimination. As the Privy Council observed in Ramanoop, “there must be some feature which, at least arguably, indicates that the means of legal redress otherwise available would not be adequate”⁶. The question whether conduct that is oppressive or constitutes an abuse of power attracts constitutional relief must therefore be decided on a case by case basis.

19. It was open to the respondent to file for judicial review from the outset. That he did so late and unsuccessfully is no reason for concluding that he was denied the protection of the law. Interestingly, the learned trial judge, in holding that his suspension was illegal from its inception said that it also breached his right to the protection of the law “…and for so long as it continued until the applicant filed his application for judicial review”. That suggests that the judicial review application was adequate to address the illegality. The declaratory relief and damages now sought would have been available along with orders of certiorari and/or prohibition.

19. The protection of the law that the respondent enjoyed was the right “to apply to a court of justice for such remedy (if any) as the law of Trinidad and Tobago gives to him”⁷. His failure to access the protection available to him in a timely and effective manner cannot, by itself, convert the decision of the JLSC into a breach of his constitutional right. The delay on his part in accessing any available remedy cannot be construed as a denial of its protection by the JLSC. Simply stated, the trial judge’s finding implies that the breach of the right to the protection of the law ceases to exist when the very right that the respondent asserts has been denied, is accessed. I cannot agree with that analysis. The fact that he could assert the right refutes the claim that it has been denied.

19. The fact that the judge found that the continuation of the suspension converted it to an ‘effective removal’ also adds nothing to the point. The mere effluxion of time cannot convert the suspension into a breach of the right to protection of the law because access to the courts was always available. It could only be relevant to the claim for deprivation of property if such property could be found to exist in any public office. The judge held that it did not. That finding is no longer challenged.

19. Some of the difficulty in this case may have arisen because of certain dicta at paragraph 39 of the judgment of the Privy Council in Privy Council Appeal No. 52 of 2000 where the following statement appears:

“Of its nature a complaint regarding an allegedly unlawful continuation of a suspension is a complaint regarding a past and irreversible event”

19. This was said in the context of the suggestion that the relief that the respondent now claims in relation to the length of the period of suspension would not have been available at the outset, or that judicial review might not have afforded adequate relief. It is worthy of note that the notice of motion in this matter mentions nothing about delay! The underlying basis for the relief sought is and always has been that the JLSC was wrong in seeking to discipline the respondent for action taken in a judicial capacity. If this were so that would have been apparent from the outset. Appropriate declarations and an award of damages would have been available on an application for judicial review.

19. As so often happens, this case has evolved and arguments have been refined during its various stages. The notice of motion has not been amended to include a claim for relief on the basis of delay. The same argument (abuse of power) that is being used to ground constitutional relief by reason of delay, might have been advanced in a properly drafted judicial review application. Abuses of power are not always breaches of fundamental rights, at least not the right to the protection of the law. I reiterate that the mechanisms available under the law to address such abuses (e.g. judicial review) are the protection of the law.

19. A more precise statement of the position may assist the analysis. The act of suspension is a discrete, one-off event occurring at a defined point in time and can therefore be defined at least as ‘past’ even if not, strictly speaking, ‘irreversible’. The continuation of the suspension, while it is ‘irreversible’ in respect of the period of suspension already endured, is not entirely ‘past’. It is continuing and ongoing. There is no reason why the remedy of judicial review should not be available and adequate in respect of an ongoing suspension, once action is taken within a reasonable time after the delay becomes untenable.

19. One might approach the argument another way by asking the question: ‘At what time does the suspension, which did not breach any constitutional right at the beginning, coalesce into the breach of a fundamental right?’ Immediately after the suspension, the respondent would have been able to seek judicial review if he felt the suspension was unwarranted or illegal. There would have been, as has been demonstrated, no valid constitutional claim. Judicial review would have therefore been the appropriate remedy.

19. It does not matter that the judicial review application was or could be met with the objection that there was delay in making it, if it came outside of the prescribed period. The answer to that is that it is always a matter of discretion for the court whether to grant relief. The court would consider the explanation for the delay just as it would be entitled to do if there were a delay in applying for relief under the constitution. If the court got it wrong, then the respondent would not have been denied ‘due process’ or the ‘protection of the law’. He has a right to a process that is fair and impartial, not to one that is infallible.

19. When did judicial review cease to be the appropriate remedy? A litigant cannot, by sitting on his rights, control which remedy is more appropriate. It would mean that the longer one waits to seek the more appropriate means of relief, the better one’s chances are to succeed with the inapplicable process. At what point did judicial review become unsuitable and why? None of these questions have been answered by the respondent.

19. One of the trial judge’s findings was that the protection of the law that the respondent was denied was contained in the procedural safeguards in the disciplinary regulations. She held that the protection of the law to which the applicant was entitled was “in the exercise of his rights under ‘the regulations’ ”. In her view, the delay in proceeding with the disciplinary action meant that the respondent could not have the benefit of the provisions in the regulations that were designed to protect him. This was in the face of a finding at paragraph 22 of her judgment that, so far as the procedures preparatory to the suspension and laying of the charges was concerned, there had been no breach of the respondent’s right to a fair hearing.

19. The flaw in this approach lies in the implication that the protection of the law available to the respondent resided solely in the regulations. The regulations are merely part of the whole complex of statutory and common-law provisions and principles that exist at various stages and for different purposes, to safeguard the respondent’s rights.

19. The other provisions in the regulations to which the judge referred relate to the procedures that would have to be followed if the tribunal had proceeded to hear the disciplinary charges. As she rightly observed, the mechanisms built in for the protection of the respondent and to ensure a fair hearing are only available if the relevant procedural provisions are activated. However, it is also true that they are only necessary if the proceedings are pursued. None of the provisions in the regulations addresses the complaint about the inordinately long suspension.

19. In other words, in the absence of any disciplinary hearing, there was nothing against which those regulations could protect the respondent. His protection lay solely in his ability to access the court. The passage from Boodram v The Attorney General (PC) [1996] AC 842 @ 854 that was cited by the trial judge is not apposite. There is no reason to suppose that, if the disciplinary proceedings had progressed, the respondent would have been deprived of the protections afforded by the regulations. The provisions that were relevant up to the time the matter became dormant had been scrupulously observed. As Lord Mustill observed in Boodram:

“Provided that the safeguards remain in place, and are made available to the applicant in the trial court, and if necessary on appeal, he has the benefit of the fair trial process to which he is entitled.”⁸

Disposition

19. It follows that the Attorney General’s appeal must be allowed. The question of damages therefore does not arise. In the light of counsel’s abandonment of the first two grounds at the beginning of the hearing of this appeal, the respondent’s cross-appeal is dismissed. The decision of the trial judge is set aside, together with all consequential orders in respect of damages and costs. The respondent will pay the appellant’s costs of this appeal certified fit for senior counsel.

I. Archie

Justice of Appeal

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