Port of Spain – The London-based Privy Council dismissed on Thursday an appeal by the Attorney General that sought to determine whether Section 5(1) of the Bail Act 1994 is inconsistent with the Trinidad & Tobago Constitution and, therefore, susceptible to being struck down
In a 28-page ruling, the Privy Council, the country’s highest and final court, said it also does not grant permission to the interested party, namely the Law Association of Trinidad & Tobago (LATT) to cross appeal.
“In circumstances where the Board’s decision recognises that the Supreme Court judges have a discretion to grant bail in murder cases, for magistrates not to have a similar discretion involves no unconstitutionality,” the five-panel judges ruled. “Moreover, they had no such discretion under the existing law saved under Section 6.”
The appeal to the Privy Council concerns the constitutionality of a law passed by the T&T Parliament, which provides that bail may not be granted to anyone charged with the offence of murder.
The appellant, the Attorney General, accepted that the bail provision deviates from the fundamental rights and freedoms enshrined in Sections 4 and 5 of the T&T Constitution adopted in 1976, but contends that it was nevertheless constitutional on two grounds.
Lawyers for the Attorney General argued that in the first ground, it was an “existing law” immediately before the commencement of the Constitution and, therefore, pursuant to Section 6 of the Constitution, it was not invalidated by anything in Sections 4 and 5.
Secondly, they argued it was passed with a special majority under Section 13 of the Constitution that allows for Acts of Parliament to be passed even though they are inconsistent with Sections 4 and 5, provided that they are declared to have that effect and that they are passed with a three-fifths majority of both Houses of Parliament, as the Bail Act was.
They said an act will have the declared effect unless it is “shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual”.
But the Court of Appeal rejected the Attorney General’s case, holding that the bail provision was not an existing law and that it was not reasonably justifiable so as to be validated by Section 13 of the Constitution.
The respondent, Akili Charles, represented by a battery of lawyers, including former attorney general, Anand Ramlogan, was charged, jointly with five others, for the murder of Russell Antoine on December 5, 2010.
He was, thereafter, kept on remand in custody at the Royal Jail in Port of Spain pending trial.
Charles’ preliminary inquiry commenced on January 16, 2012, before the Chief Magistrate and was halted on April 3, 2017, when the Chief Magistrate was elevated to the High Court.
The Acting Chief Magistrate decided that the preliminary inquiry should be heard de novo (anew).
The new preliminary inquiry was discharged on May 21, 2019, on a no-case submission, and Charles was released from custody, nine years after first being detained.
On February 6, 2020, Charles brought a constitutional motion for a declaration that Section 5(1) of the Bail Act, which provides that bail cannot be granted in cases of murder (and certain other offences), is unconstitutional. The Act had been passed under Section 13 of the Constitution.
The judge dismissed the motion, holding that section 5(1) of the Bail Act was saved from challenge as an “existing law” by Section 6 of the Constitution because it re-enacted the position in force when the Constitution came into effect in 1976.
But the Court of Appeal allowed Charles’ appeal, holding that Section 5(1) of the Bail Act was unconstitutional because: (i) it derogated from the fundamental rights and freedoms in Sections 4 and 5 of the Constitution; (ii) it was not an “existing law” and, therefore, it was not saved under Section 6 of the Constitution; and (iii) it was not protected by virtue of being passed under Section 13 because the derogation was not shown to be reasonably justifiable in a society that has proper respect for the rights and freedoms of the individual.