Maharaj questions constitutionality of SoE detention rules

RAD­HI­CA DE SIL­VA

Se­nior Mul­ti­me­dia Re­porter

rad­hi­[email protected]

For­mer at­tor­ney gen­er­al Ramesh Lawrence Ma­haraj, SC, says any State of Emer­gency (SoE) law that al­lows a gov­ern­ment min­is­ter to de­cide whether some­one re­mains in de­ten­tion amounts to giv­ing ju­di­cial pow­ers to the ex­ec­u­tive, which he be­lieves is con­trary to Trinidad and To­ba­go’s Con­sti­tu­tion.

Speak­ing at a lun­cheon host­ed by the As­sem­bly of South­ern Lawyers in San Fer­nan­do to cel­e­brate his 60 years as an at­tor­ney yes­ter­day, Ma­haraj said the reg­u­la­tions used dur­ing the 2011 SoE, and sub­stan­tial­ly sim­i­lar reg­u­la­tions used to­day, un­der­mine the sep­a­ra­tion of pow­ers.

The event, at­tend­ed by mem­bers of the Ju­di­cia­ry and le­gal fra­ter­ni­ty, cel­e­brat­ed Ma­haraj’s con­tri­bu­tions to the de­vel­op­ment of the coun­try’s le­gal sys­tem.

Al­so in at­ten­dance was Chief Jus­tice Ron­nie Boodoos­ingh, a mem­ber of the Court of Ap­peal pan­el hear­ing busi­ness­man Do­minic Hadeed’s SoE de­ten­tion mat­ter, which was among the is­sues Ma­haraj ad­dressed dur­ing his re­marks.

Re­fer­ring to the con­sti­tu­tion­al chal­lenge now be­fore the Ju­di­cial Com­mit­tee of the Privy Coun­cil in the Hadeed case, Ma­haraj said the is­sue goes be­yond the de­ten­tion of in­di­vid­u­als and strikes at the heart of the Con­sti­tu­tion.

“As a mat­ter of fact... the present case that is be­ing done in­volv­ing Do­minic Hadeed, if it were not for that sec­tion in the Ju­di­cial Re­view Act, there would have had to be leave to ap­peal.”

Re­fer­ring to his 2011 case now­be­fore the Privy Coun­cil, Ma­haraj said he chal­lenged both the con­sti­tu­tion­al­i­ty of the SoE and the reg­u­la­tions made un­der it.

“I ar­gued that the reg­u­la­tions were un­con­sti­tu­tion­al. And I ar­gued the case that even if the reg­u­la­tions were law­ful, the ex­er­cise of dis­cre­tion was un­law­ful.”

Al­though he lost in both the High Court and Court of Ap­peal, Ma­haraj said the Privy Coun­cil re­cent­ly heard the ap­peal and showed sig­nif­i­cant in­ter­est in the con­sti­tu­tion­al ar­gu­ments. He main­tained that a SoE should nev­er be used as an or­di­nary crime-fight­ing mea­sure.

“A SoE is an ex­cep­tion­al sit­u­a­tion and if you have the po­lice ser­vice func­tion­ing, the courts func­tion­ing, all the pub­lic in­sti­tu­tions func­tion­ing, you can­not use a SoE to fight crime be­cause when you cre­ate a SoE, you sus­pend the en­joy­ment of fun­da­men­tal rights guar­an­teed in Sec­tion 4 and 5 of the Con­sti­tu­tion.”

He al­so crit­i­cised pro­vi­sions al­low­ing a min­is­ter to au­tho­rise de­ten­tion with­out im­me­di­ate ju­di­cial over­sight.

Re­flect­ing on his tenure as at­tor­ney gen­er­al, Ma­haraj said three pieces of leg­is­la­tion re­mained among his proud­est achieve­ments: the Ju­di­cial Re­view Act, the Free­dom of In­for­ma­tion Act and the Equal Op­por­tu­ni­ty Act.

He said he in­sist­ed on in­clud­ing a right of ap­peal in the Ju­di­cial Re­view Act de­spite op­po­si­tion from the Law Com­mis­sion, ar­gu­ing that the pro­vi­sion has en­abled many lit­i­gants to ob­tain jus­tice in the Court of Ap­peal and be­fore the Privy Coun­cil.

Ma­haraj al­so praised the Free­dom of In­for­ma­tion Act, say­ing many cit­i­zens re­main un­aware it al­lows them to ap­ply to the courts to cor­rect false or in­ac­cu­rate in­for­ma­tion held about them by pub­lic au­thor­i­ties.

Mean­while, Chief Jus­tice Boodoos­ingh paid trib­ute to Ma­haraj’s six decades in the pro­fes­sion, de­scrib­ing him as an ad­vo­cate whose prepa­ra­tion, in­tegri­ty and le­gal schol­ar­ship had set the stan­dard for gen­er­a­tions of at­tor­neys.

Boodoos­ingh said judges could al­ways de­pend on Ma­haraj’s metic­u­lous prepa­ra­tion.

The Chief Jus­tice said Ma­haraj re­mained a role mod­el for both se­nior and ju­nior mem­bers of the pro­fes­sion.

“He’s an ab­solute ex­am­ple to all silk in this coun­try. He’s an ex­am­ple to all ju­nior lawyers,” Boodoos­ingh said.

Not­ing the large num­ber of young at­tor­neys in at­ten­dance, Boodoos­ingh said many were un­fa­mil­iar with Ma­haraj’s decades of con­tri­bu­tions to the law.

He urged Ma­haraj to doc­u­ment his ex­pe­ri­ences for fu­ture gen­er­a­tions.