“Whereas the People of Trinidad and Tobago - (a) have affirmed that the Nation of Trinidad and Tobago is founded upon principles that acknowledge the supremacy of God, faith in fundamental human rights and freedoms, the position of the family in a society of free men and free institutions, the dignity of the human person and the equal and inalienable rights with which all members of the human family are endowed by their Creator; (b) respect the principles of social justice and therefore believe that the operation of the economic system should result in the material resources of the community being so distributed as to subserve the common good, that there should be adequate means of livelihood for all, that labour should not be exploited or forced by economic necessity to operate in inhumane conditions but that there should be opportunity for advancement on the basis of recognition of merit, ability and integrity; (c) have asserted their belief in a democratic society in which all persons may, to the extent of their capacity, play some part in the institutions of the national life and thus develop and maintain due respect for lawfully constituted authority; (d) recognise that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law; (e) desire that their Constitution should enshrine the above-mentioned principles and beliefs and make provision for ensuring the protection …”
“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 …”
“(1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgment or infringement of any of the rights and freedoms hereinbefore recognised and declared … (2) Without prejudice to subsection (1), but subject to this Chapter and to section 54, Parliament may not - …”
“(1) A court, on remanding or committing for trial a child who is not released on bail, shall order that the child be placed in the custody of a community residence named in the Order for the period for which he is remanded or until he is brought before the court.”
“(1) A court shall not order a child to be detained in an adult prison. (5) Where a child is detained in any facility he shall not be allowed to associate with adult prisoners except with the express permission of the court in respect of the adult prisoner named in such order.”
“The compensation to be awarded to the claimants is as a result of the failure of the legal system or the executive’s administrative process to have in place a community residence appropriate for their respective detentions.”
“[Sasha] was subjected to ‘prison like’ conditions and treated as a young adult in an adult prison. She ought not to have been placed in a women’s prison amongst other convicted persons and in conditions which were designed to treat and reform adult prisoners. She associated with adults even in a limited way through the eyes of the child. This would have been a startling, frightening and scarring experience. There was an apparent lack of proper amenities and facilities to preserve her human dignity as a vulnerable child.”
“When (as here) an enacted law is said to be incompatible with a right protected by a Constitution, the court’s duty remains one of interpretation. If there is an issue (as here there is not) about the meaning of the enacted law, the court must first resolve that issue. Having done so it must interpret the Constitution to decide whether the enacted law is incompatible or not. Decided cases around the world have given valuable guidance on the proper approach of the courts to the task of constitutional interpretation: see, among many other cases, Weems v United States (1909) 217 US 349, 373; Trop v Dulles (1958) 356 US 86, 100-101; Minister of Home Affairs v Fisher[1980] AC 319 , 328; Union of Campement Site Owners and Lessees v Government of Mauritius[1984] MR 100 , 107; Attorney General of The Gambia v Momodou Jobe[1984] AC 689 , 700-701; R v Big M Drug Mart Ltd[1985] 1 SCR 295 , 331; State v Zuma 1995 (2) SA 642; State v Makwanyane 1995 (3) SA 391 and Matadeen v Pointu[1999] 1 AC 98 , 108. It is unnecessary to cite these authorities at length because the principles are clear. 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 charterparty. 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 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.”
“The notion that whenever there is a failure by an organ of government or a public authority or public officer to comply with the law this necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals by Chapter I of the Constitution is fallacious. The right to apply to the High Court under section 6 of the Constitution for redress when any human right or fundamental freedom is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action. In an originating application to the High Court under section 6 (1), the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom.”
“The Judicial Committee has previously had occasion to draw attention to the necessity of vigilance on the part of the Supreme Court to prevent misuse by litigants of the important safeguard of the rights and freedoms enshrined in sections 4 and 5 that is provided by the right to apply to the High Court for redress under section 14.”
“The object of section 2 is to secure the protection of all the rights and freedoms which are enshrined in section 1. Since the administration of justice is the instrument by means of which the citizen seeks to enforce or prevent encroachment on [his] rights, the scheme of section 2 is to prohibit the enactment of legislation which may have the effect either of (a) abrogating, abridging or infringing any of those rights or (b) depriving the citizen of the benefit of any of several procedural safeguards established for the purpose of ensuring the due administration of justice. The observance of these safeguards is, in my view, an essential requirement for the preservation of all the substantive rights and freedoms guaranteed by section 1 of the Constitution.”
“This is the first occasion on which the due process clause of the Constitution has been the subject matter of interpretation by this court. Little authority is to be found with reference to the interpretation of its counterpart in the Canadian Bill of Rights. The expression ‘due process of law’, although having its roots in Magna Carta (1215), which has come to be regarded as the palladium of the basic liberties of the British citizen, has not found a firm footing in British legal terminology … Its origin is generally accepted as being in the 39th clause of Magna Carta wherein it was provided that: ‘No free man was to be arrested, imprisoned, put out of his free hold, outlawed, destroyed or put upon in any way except by the lawful judgement of his peers or the law of the land’.”
“The concept of ‘due process of law’ is the antithesis of arbitrary infringement of the individual’s right to personal liberty; it asserts his ‘right to a free trial, to a pure and unbought measure of justice’. While it is not desirable and, indeed, may not be possible to formulate an exhaustive definition of the expression, it seems to me that, as applied to the criminal law … it connotes adherence, inter alia, to the following fundamental principles: (i) reasonableness and certainty in the definition of criminal offences; (ii) trial by an independent and impartial tribunal; (iii) observance of the rules of natural justice.”
“The references which I have cited, both from the United States and from Canada, serve to demonstrate that in both countries ‘due process’ is seen to be construed as a restraint upon action or a limitation on law which affects personal liberties to a degree of unreasonableness or arbitrariness which is coloured by discrimination or otherwise. The introduction of the due process clause in the Constitution of Trinidad and Tobago seems to me to have been similarly inspired, although the method has been different and at the same time more clearly explicit of the legislative intention. Section 1 (a) of the Constitution declares a fasciculus of individual rights to have existed and assures their continuity without deprivation except by due process of law; but the section does not itself provide the means whereby the individual might be protected against their abrogation, abridgment or infringement. Such protection is to be found in section 2 of the Constitution and because this is so I think that subsections 1 (a) and 2 are complementary and, together, provide the content and values which underscore the legal civil liberties of the individual as distinct from his political civil liberties, his economic civil liberties or his egalitarian civil liberties. The individual legal civil liberties concern the justice of the legal order and speedy trial, and include freedom from arbitrary arrest, or arbitrary search and seizure of person, premises and papers; protection of impartial adjudication, involving notice and fair hearing, an independent tribunal and the right to counsel, the privilege against compulsory self-incrimination, the protection from cruel and unusual treatment and punishment; the right to be informed promptly of the reasons for his arrest or detention; the presumption of innocence; the right to the assistance of an interpreter and to all the other facilities and rights. It is not necessary or even possible to venture a comprehensive definition of the phrase ‘due process of law’ such as might be of permanent application.”
“13. … In one sense, to say that an accused person is entitled to due process of law means that he is entitled to be tried according to law. In this sense, the concept of due process incorporates observance of all the mandatory requirements of criminal procedure, whatever they may be. If unanimity is required for a verdict of a jury, a conviction by a majority would not be in accordance with due process of law. If the accused is entitled to raise a defence of alibi without any prior notice, a conviction after the judge directed the jury to ignore such a defence because it had not been mentioned until the accused made a statement from the dock would not be in accordance with due process of law. But ‘due process of law’ also has a narrower constitutional meaning, namely those fundamental principles which are necessary for a fair system of justice. Thus it is a fundamental principle that the accused should be heard in his own defence and be entitled to call witnesses. But that does not mean that he should necessarily be entitled to raise an alibi defence or call alibi witnesses without having given prior notice to the prosecution. A change in the law which requires him to give such notice is a change in what would count as due process of law in the broader sense. It does not however mean that he has been deprived of his constitutional right to due process of law in the narrower sense.”
“There is nothing particularly unfair or unjust about a statutory rule which enables an appellate court to correct an error of law by which an accused person was wrongly discharged or acquitted and order that the question of his guilt or innocence be properly determined according to law. Such a rule exists in many countries.”
“What is comprised in due process has never been exhaustively defined. But it has always been taken to include the resolution of justiciable issues by courts of law without interference by the executive or the legislature.”
“110. Insofar as the Chief Magistrate is concerned, there is no issue of arbitrary or high-handed action on her part. As far as she was aware there were no community residences in existence to which she could remand the children. She had no discretion to grant bail or to release the children into the care of their mother. She considered the possibilities which were available to her and eventually remanded Brian to St Michael’s YTC and Sasha to the Women’s Prison. There is no question raised as to her bona fides in doing so. 111. In addition, no question has been raised that the Chief Magistrate did not constitute an independent and impartial tribunal. If the Chief Magistrate made an error of law in remanding the children to places which were not community residences then the legal system provides avenues of redress in the form of judicial review, or an appeal of the decision. 113. Likewise, there is no question of arbitrary or high-handed conduct on the part of the state or the Commissioner of Prisons in depriving the children of their liberty. No issue has been raised that there was a failure by the state or the Commissioner of Prisons to observe any rule of natural justice in depriving the children of their freedom. The issue that has been raised is whether the failure of the state to provide licensed community residences suitable to accommodate the children at the time that the suite of children legislation was proclaimed amounted to a breach of the right to due process.”
“The issue becomes whether the breach of the statutory mandate to place child offenders in community centres under the circumstances as they existed at the time renders the system of justice unfair. This court believes that the breach in these circumstances did not.” (Emphasis added.)
“Section 4(b) is in the Board’s view directed to equal protection as a matter of law and in the courts.”
“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’ [Attorney General v Joseph and Boyce at para 20]. The right to protection of the law may, in appropriate cases, require the relevant organs of the state to take positive action in order to secure and ensure the enjoyment of basic constitutional rights. In appropriate cases, the action or failure of the state may result in a breach of the right to protection of the law. Where the citizen has been denied rights of access and the procedural fairness demanded by natural justice, or where the citizen’s rights have otherwise been frustrated because of government action or omission, there may be ample grounds for finding a breach of the protection of the law for which damages may be an appropriate remedy.”
“Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.”
“13.1 Detention pending trial shall be used only as a measure of last resort and for the shortest possible period of time. 13. 2 Whenever possible, detention pending trial shall be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home. 13. 3 Juveniles under detention pending trial shall be entitled to all rights and guarantees of the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations. 13. 4 Juveniles under detention pending trial shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults. 13. 5 While in custody, juveniles shall receive care, protection and all necessary individual assistance-social, educational, vocational, psychological, medical and physical-that they may require in view of their age, sex and personality.”
“no minors shall be held in a facility where they are vulnerable to the negative influences of adult detainees and … account should always be taken of the needs particular to their stage of development.”
“There is a sound legal basis therefore to recognise the child as a special class of person deserving of protection.”
“I am not encouraged by these stories of BS and SS as two youths in our criminal justice system. The respective stories of these children are one of fear, anxiety, shame, anger, frustration and despair. This is not the story one would expect to hear of children being rehabilitated and who are presumed innocent of any crime. These stories do not demonstrate that the youths are being removed from a criminogenic setting or are being encouraged, nurtured, protected and loved. Quite the opposite. They were in an environment that bred criminality in the case of SS or exposed their vulnerability in the case of BS. It is the type of environment which may develop criminals of young children by failing to provide systems to support deficiencies in their development and behaviour.”