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STUDENT

LAW REVIEW

A Publication of the Faculty of Law at the University of the West Indies, St. Augustine Campus

WRITTEN BY

Renelle Ramlal, Kevina Ramsook, Gillianna Guy, Sasha Mangar, Denzil Rajack-Prayag,

Grace Lucy-Anna Bhagwandeen, Antonio Emmanuel EDITED BY

Radeyah H. Ali


Š Copyright 2014 All rights reserved; no part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise without written permission of the author.

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ISBN 978-976-620-287-3 EBOOK ISBN 978-976-620-288-0


Student Law Review University of the West Indies, St. Augustine Law Society

Faculty of Law

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Table of Contents

FOREWORD ...........................................................................................................................................2  PREFACE ................................................................................................................................................3  ACKNOWLEDGMENTS........................................................................................................................4  AUTHORS..................................................................................................................................................6  DEDICATION .............................................................................................................................................7  Should the Parliament of Trinidad and Tobago legalize abortion? ..............................................................8  A Critical Appraisal of the Trafficking in Persons Act, 2011, in Trinidad and Tobago.............................17  The role of the Domestic Court in invoking International Human Rights Treaty: A Comparative analysis between Australia, Barbados, Jamaica and Trinidad and Tobago ..............................................................26  The Literal vs. Legal Protection of the Sea Turtle in Trinidad and Tobago ...............................................35  To what extent are International trade and the protection of the environment related, with respect to Trinidad and Tobago? ................................................................................................................................44  Is Legislative intervention the solution to the controversy surrounding the Great Peace decision, on the law of common mistake?............................................................................................................................59  “A critical analysis of the degree of human rights protection afforded to juvenile offenders by the criminal justice system of Trinidad and Tobago.”....................................................................................................82 


FOREWORD

I am deeply honoured to have been asked to pen this foreword to the inaugural issue of the Student Law Review at the Faculty of Law St Augustine. Many years ago John F Kennedy asked 'What good is a University unless it is serving a great national purpose?' This faculty in this University must do more than to give its graduates an economic advantage in life. It must allow our students to meet their debt to the public and to discharge their responsibility to the public good. A law review allows for precisely that. It allows the most sacred of freedoms guarded by a University the freedom to speak to nourish as Kennedy said 'the roots of our culture'. I welcome this altruistic endeavour as being consistent with the most noble principles of service, sacrifice and responsibility upon which this Faculty was built. I encourage your contributors to continually speak truth to power and I congratulate each and every one involved in this publication as being standard bearers on the walls of academic freedom. John S Jeremie S.C.

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PREFACE The Student Law Review comprises of the most exceptional theses written by students of the St. Augustine Law Faculty for Legal Methods, Research and Writing as well as the Independent Research Paper courses. It represents the inaugural Student Law Review which will be published annually. The Student Law Review touches on various critical issues in the local jurisprudence, some of which are insufficiently addressed. The Publications Committee of the St. Augustine Law Society has already published their first legal periodical in the form of the St. Augustine Legal Affairs, and intends to build upon its everincreasing imperative legacy. Among the controversial issues addressed in the Student Law Review is abortion which is currently illegal in Trinidad and Tobago, except in cases of a threat to the life or health of the pregnant woman. Moreover, despite the naivety of the local diaspora to the prominence of human trafficking, it is a serious issue in Trinidad and Tobago where a blind eye must not be cast upon. The Student Law Review also discusses the role of domestic courts in invoking international human rights treaties, delving into the monist and dualist theories. On another note, Sea Turtles are listed under the highest level of protection under the Convention on Trade in Endangered Species in Wild Fauna and Flora but to what extent has domestic legislation achieved sea turtle conservation? Another matter being assessed is the relationship, if any, between international trade and the protection of the environment. While the view of the United Nations Environment Programme is that they should not be mutually exclusive, is this notion actually perceived in Trinidad and Tobago? Moreover, the law regarding the status of common mistake has been subject of much judicial experimentation and thus commentators from different corners have mixed sentiments regarding the proper solution to the issue. The final thesis produced in the Student Law Review is geared towards what protection if any, is offered to juvenile offenders in Trinidad and Tobago. This must be observed in light of the dynamism that is expounded in relation to international human rights law. Miguel A.R.E. Vasquez Vice President UWI STA Law Society (2013-2014) 3 


ACKNOWLEDGMENTS

This first issue of the Student Law Review (SLR) is the initial stepping stone into the complex and fortifying world of literature in which our UWI St. Augustine Law Society aims to make our presence and unifying vioce felt. It takes great courage to create something worth reading, but it takes even greater courage to allow others to read that which you have written. As such, we would like to express our utmost thanks to all authors of each article in this compilation for allowing the use of their work in this Publication: Renelle Ramlal, Kevina Ramsook, Gillianna Guy, Sasha Mangar, Denzil Rajack-Prayag, Grace Lucy-Anna Bhagwandeen and Antonio Emmanuel. In the words of Alfred North Whitehead, "[n]o one who achieves success does so without acknowledging the help of others. The wise and confident acknowledge this help with gratitude." Thus special thanks go to the Editorial Committee of the SLR, President, Asif A. Hosein-Shah, Vice President, Miguel Angelo Raphael Elijah Vasquez and Publications Relations Officer, Richard Jaggasar for all of their assistance in this venture. A good teacher can inspire hope, ignite the imagination, and instill a love of learning. In the Faculty of Law we are blessed with a staff of phenomenal teachers who propel our successes and who are always willing to assist us. Mention must be made of Mr. Timothy Affonso, Law Lecturer at UWI St. Augustine Campus, who was always gracious and welcoming throughout the process of putting the Student Law Review together. We are indebted to Mr. John Jeremie S.C., Law Leaturer at UWI St. Augustine Campus, for penning the Foreword to this, the SLR, and for his unwavering support. On behalf of the entire Law Society Executive, we find it essential to thank all members of our Law Society for supporting us in all our activities and ventures. This is for you.

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I sincerely hope that you find this Law Review to be compelling and informative; and be as excited to read it as I was excited to put it together. Let this be the first installment of many others to follow and let this be an inspiration for each member of the Law Society to submit to the SLR in subsequent issues. Always remember, as per Tom Hiddleston, “[y]ou never know what's around the corner. It could be everything. Or it could be nothing. You keep putting one foot in front of the other, and then one day you look back and you've climbed a mountain.” Everything you dream of is possible, if only you believe. Radeyah H. Ali Editor in Chief Publications Committee Chairperson UWI STA Law Society (2013-2014)


AUTHORS 

  Renelle Ramlal  Kevina Ramsook  Gillianna Guy  Sasha Mangar  Denzil Rajack­Prayag  Grace Lucy­Anna Bhagwandeen  Antonio Emmanuel         


DEDICATION 

To the students and staff of the University of the West Indies Faculty of Law.                  


Should the Parliament of Trinidad and Tobago legalize abortion?  

By Renelle Ramlal In Trinidad and Tobago the performance of abortions is generally illegal under sections 56 and 57 of the Offences Against the Person Act of 3 April 1925, as amended. Nonetheless, under general criminal law principles of necessity, an abortion can be legally performed to preserve the mental and physical health of the pregnant woman. This exception excludes other circumstances of unwanted pregnancies such as instances of rape, incest, foetal impairment, pregnancy of minors. Thus, this paper will argue that abortion should remain illegal but the circumstances of a legal abortion in exceptional cases should be extended. This requires an examination of the possible advantages of legalizing abortion in these circumstances and a discussion of how this can be justified under the criminal law. Abortion is legally defined as "[t]he unlawful destruction, or the bringing forth prematurely, of the human foetus before the natural time of birth" or "[t]he expulsion of the foetus at a period of utero-gestation so early that it has not acquired the power of sustaining an independent life."1 The current position on the law of abortion can be found under section 56 of the Offences Against the Persons Act which reads: "Every woman, being with child, who, with intent to procure her own miscarriage, unlawfully administers to herself any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent, and any person who, with intent to procure the miscarriage of any woman, whether she is or is not with child, unlawfully administers to her or causes to be taken by her any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent, is liable to imprisonment for four years." Section 57 also reads "Any person who unlawfully supplies or procures any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she is or is not with child, is liable to imprisonment for two years."2                                                               1 2

 Black's Law Dictionary, p20 (Revised 4th Edition, 1968).   Offences Against the Persons Act, 1925 (Trinidad and Tobago) Chap 11:08. 


While this piece of legislation in Trinidad and Tobago provides that abortion is generally illegal under statute, abortions are allowed under the common law in order to preserve the mental and physical health of the pregnant woman. Trinidad and Tobago, like several other Commonwealth countries, whose legal systems are based on the English common law, follows the 1938 English Rex v. Bourne decision in determining whether an abortion performed for health reasons is lawful. In the case of Rex v. Bourne, a physician was acquitted of the offence of performing an abortion in the case of a woman who had been raped. It was held by the court that the abortion was lawful because it had been performed in order to prevent the woman from becoming a “physical and mental wreck”, thus setting a precedent for future abortion cases performed on the grounds of preserving the pregnant woman’s physical and mental health. Thus, the combined effect of statute and case law is that abortions should be permitted to preserve a woman’s life and health, including her mental health. However, this single exception to which abortion is legally permitted arguably restricts the rights and freedoms of the pregnant woman with respect to additional circumstances that warrant unwanted pregnancies. These include instances of rape, incest, foetal impairment and pregnancy of minors. Thus, the issue at hand is whether a pregnant woman should be able to choose to have an abortion under these conditions. In Trinidad and Tobago, there have been recent legal arguments by the legislature and nongovernmental bodies on the question of legalizing abortion which have sparked public controversy and parliamentary debate. These arguments have been consensually centred around the necessity for new legislative reform with aim of broadening the scope for which abortions should be legally permitted. For example, the leading non-governmental and non-profit advocacy group, ASPIRE (Advocates for Safe Parenthood: Improving Reproductive Equity) has extensively contributed to this debate by lobbying for abortion law reform and new legislation. The goals of this organization include clarification of the application of the law through the provision of policy, protocols and guidelines and reducing the incidences of unsafe abortions by broadening the scope for legalizing abortion. A national survey carried out by ASPIRE revealed that more than half of the respondents were in favour of broadening the legal grounds for


accessing terminations. Incest, rape and danger to a woman's life were cited as the most significant circumstances under which abortions should be permitted.3 Additionally, the current Minister of Gender, Youth and Child Development, Verna St Rose Greaves, has promoted the idea of legalizing abortion through a National Gender Policy because of an epidemic of gender-based violence in Trinidad and Tobago. According to the Judiciary's Annual Report, 10,817 domestic violence applications were determined for the 2009/2010 law term and 12,041 applications were determined for the 2010/2011 period.4 These instances of domestic violence include rape, incest, sexual assault and sexual harassment. The increase of unwanted pregnancies which result from these offences are not taken into consideration within the legal framework. Therefore, by broadening the circumstances for which abortion should be legalized, there would be a reduction of unsafe and illegal abortions. There are a number of Caribbean Commonwealth jurisdictions which have adopted additional circumstances in their legal framework for the allowance of abortions. For example, St Vincent and the Grenadines has permitted abortion in the cases of rape and incest. In St. Vincent and the Grenadines, the Indictable Offences Ordinance, which was mostly derived from the English Offences against the Person Act of 1861, governed the legislation on abortion until 1988. This Ordinance generally prohibited the performance of abortions, although one could be performed according to general criminal law principles of necessity in order to save the life of the pregnant woman. However, in 1977, the Saint Vincent Medical Association proposed a change in the law for the allowance of a broader range of indications for the medical termination of pregnancy. This recommendation was integrated into the new Criminal Code of 1988 (Act No. 23) which stipulated that abortion remain generally illegal. However, a pregnancy may be lawfully terminated when two medical practitioners are of the opinion formed in good faith, that (i) continuation of the pregnancy would involve risk to the life of the pregnant woman or injury to her physical or mental health, or to that of any of her existing children, greater than if the pregnancy were terminated; or (ii) there is a substantial risk that, if the child were born, it

                                                              3

 Population Policy Data. Population Division of the Department of Economic and Social Affairs of the United    Nations Secretariat (2010).  4  Maraj, Leiselle. "12,106 domestic violence cases filed". Trinidad and Tobago Newsday. 24 November, 2012. 

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would suffer from a physical or mental abnormality so as to be seriously handicapped.5 An abortion may also be legally carried out when the pregnancy is the result of an act of rape or incest, whether or not any person has been charged with the offence of rape or incest. The government of St Vincent and the Grenadines broadened the scope for permitting abortions because it provided a strategy for controlling the rates of population growth and fertility since it was believed that the high population growth rate would have severely strained the limited natural resources of the country. While Trinidad and Tobago does not face a substantial problem of high population growth rates, this strategy of legally extending abortion to rape and incest can, nevertheless, be applied. For example, the recent case which emerged in 2012 of an 11-year-old girl raped by her father and pregnant with his child provided a clear case for abortion for supporters.6 However, the legislation of Barbados goes further to allow abortion not only in instances of rape and incest, but also for foetal impairment, socioeconomic reasons and the requirement of parental authorization for pregnant girls under the age of 16 years. This is because the government had been concerned with the high maternal morbidity and mortality resulting from unsafe illegal abortions, a problem which Trinidad and Tobago also faces. In Barbados, abortion laws were significantly liberalized in 1983, with the introduction of the Medical Termination of Pregnancy Act (Act No. 4 of 11 February 1983). Previously, legislation on abortion was based on sections 61 and 62 of the Offences Against the Person Act 1868, which permitted abortion only to save the life of the pregnant woman, as well as the application of the Rex v. Bourne case, which interpreted the 1868 Act to permit abortion in order to protect the physical and mental health of the pregnant woman. However, the introduction of the 1983 Act allows abortion on broad health grounds. It provides that an abortion can be performed if a medical practitioner is of the opinion formed in good faith that (i) the continuance of the pregnancy would involve risk to the life of the pregnant woman or grave injury to her physical or mental health; or (ii) a substantial risk exists that if the child were born, it would suffer such

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 United Nations Population Division Department of Economic and Social Affairs. Abortion Policies: A Global Review  (2002).  6 Kissoon, Carolyn. "Pregnant little girl 'a case for abortion'". The Trinidad Express, 20 July 2012.  

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physical or mental abnormalities as to be seriously handicapped.7 Under this Act, abortions may also be executed on juridical and socio-economic grounds, where “the medical practitioner must take into account the pregnant woman’s social and economic environment, whether actual or foreseeable," and where the pregnant woman's reasonable belief that her pregnancy resulted from an act of rape or incest is sufficient to amount to grave injury to her mental health. Additionally, the Act requires the consent of a parent or guardian where the pregnant woman is under 16 years of age or of unsound mind. Therefore, an evaluation of the legislative process on abortion laws in Barbados suggests that there are now specific guidelines incorporated within the legislation which provides clarification for medical practitioners. However, in Trinidad and Tobago, the laws on abortion remain stagnant since it is unlawful to perform an abortion for social or economic reasons, in cases of rape or incest, or for foetal indications of severe impairment. These limitations arguably accounts for the ambiguity of the law of abortion but it also leads to the occurrences of illegal and unsafe abortions performed by pregnant women. This leads to the issue of whether there would be possible advantages for the citizen and the government if abortion were legal in the conditions of rape, incest, foetal impairment and pregnancies of minors. The territory of Guyana provides a satisfactory example of how abortion has impacted upon the health and medical system. Abortion is legal and available in Guyana under the Medical Termination of Pregnancy Act 1995, which became operational in early 1996. In fact, it is the only Caribbean Commonwealth country which has legalized abortion without restriction as to reason. The preamble to the Act states that it sought to ‘…reform the law relating to medical terminations of pregnancy, to enhance the dignity and sanctity of life by reducing the incidence of induced abortion, to enhance the attainment of safe motherhood by eliminating deaths and complications due to unsafe abortion, to prescribe those circumstances in which any woman voluntarily and in good faith wishes to terminate her pregnancy may lawfully do so and to provide for matters connected therewith.’ 8

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 United Nations Population Division Department of Economic and Social Affairs. Abortion Policies: A Global Review  (2002).  8  Ramsaroop, Stella. "Abortion rights and wrongs." Guyana's Stabroek News, 28 January 2012. 

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Before Guyana legalized abortion , septic abortion was the third highest cause (19%) of hospital admissions. Six months after the implementation of the new Act, there was a 41% reduction in hospital admissions for septic abortions.9 Therefore, the legalization of abortion under certain circumstances in Trinidad and Tobago would offer similar benefits such as the reduction of unsafe abortions, the decrease in maternal mortality as a result of contracted infections from unsafe abortions and less occurrences of infertility. Additionally, legalizing abortion in certain circumstances would result in a positive domino effect on the healthcare system. An official report from the Ministry of Health released in 2012 stated that approximately 4,000 women are hospitalized every year because of unsafe termination of pregnancy, costing the state approximately $1 million10. The State would, therefore, save medical expenses since the number of women who require a dilation and curettage (D&C) procedure as a result of incomplete abortions would decrease. Thus, the grounds for legalizing abortion should be broadened to reduce women’s need to resort to clandestine procedures and the consequent health risks. Perhaps, one of the most fundamental issues, with respect to abortion, brings forward the controversy over whether the act of performing an abortion can be considered murder. The classic definition of murder under the common law is that of Sir Edward Coke, which states: "Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King's peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day after the same."11 With reference to this definition of murder, only a 'reasonable creature in rerum natura' can be the victim of a murder in criminal law. A 'reasonable creature' is one that has an independent existence and accordingly, a foetus cannot be the victim of an offence of murder. Thus, it is not murder to kill a foetus in the womb or in the process of leaving the womb. However, the debate arises over the problem of determining at what stage does a foetus becomes a person. In the cases                                                               9

 Arthur, Joyce. "Yes, Legalizing Abortion Does Save Women's Lives." Abortion Rights Coalition of Canada, March 4,  2010.  10  Kowlessar, Geisha. "Referendum needed on abortions‐ Fuad."  The Trinidad Guardian Media Ltd, 18 May 2012.  11  Ormerod, David. Smith and Hogan's Criminal Law, p489 (13th edn, Oxford University Press, 2011). 

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of Poulton12 and Enoch13, the courts held that in order to have an 'independent existence' , the child must have been wholly expelled from its mother's body and be alive. Trinidad and Tobago follows the test applied in the English case of Handley14, where a child comes under the protection of the law of murder when the victim is born alive and has an independent existence of its mother. With respect to the definition of abortion, that is, "The expulsion of the foetus at a period of utero-gestation so early that it has not acquired the power of sustaining an independent life", one can safely conclude that abortion is not murder in criminal law. In the case of AG's Reference (No 3 of 1994)15, the defendant stabbed his pregnant girlfriend in the face, abdomen and back when she was 22-24 weeks pregnant and 17 days after this occurrence, the woman went into premature labour and delivered a live baby which died 121 days later due to the premature birth. However, the House of Lords substituted the defendant's conviction of murder for manslaughter on the grounds that a conviction of murder was wrong because "The mother and foetus were two distinct organisms living symbiotically, not a single organism with two aspects."16 Therefore, an important question surfaces here as to whether the fact that a foetus cannot be a victim of murder, provides justification for the legalization of abortion in certain circumstances. It should be noted that the concept of rights is anchored in man's nature and presupposes the existence of an actual, fully formed and distinct human being apart from the mother. Thus, in this sense, it can be argued that a woman has the right to choose to terminate her pregnancy where a foetus has been conceived against the will of the mother, such as in the instances of rape and incest. In the cases of foetal impairment and pregnancy of minors, there may not only be a risk to the physical health of the mother, but it may also be a mental burden to carry the weight of an unwanted foetus for nine months. In conclusion, a valid argument exists for broadening the grounds on which abortions should be performed in order to include rape, incest, foetal impairment and pregnancy of minors. This                                                               12

 Poulton (1832) 5 C&P 329   Enoch (1850) 5 C&P 539  14  Handley (1874) 13 Cox CC 79.  15  AG's Reference (No 3 of 1994) [1997] 3 ALL ER 936 (HL)   16  Ormerod, David. Smith and Hogan's Criminal Law (13th edn, Oxford University Press, 2011) p489.  13

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would ensure that abortion remains generally illegal, but by allowing the performances of abortion in these specific circumstances, Parliament would attain the reduction of unsafe abortions, maternal mortality and less medical cost of medical care spent on hospitalizations from unsafe termination of pregnancies. From a critical perspective, it is evident that Trinidad and Tobago has been trailing behind the United Kingdom and other Caribbean Commonwealth countries in terms of legislative reform on the law of abortion. It is necessary to implement proper and specific guidelines within the legislative framework for greater clarification on the rules of abortion. Thus, the need to for change with respect to abortion laws is apparent and must be achieved for the well-being of the State, the citizens and the liberal rights of the pregnant woman.

BIBLIOGRAPHY Table of Cases: -AG's Reference (No 3 of 1994) [1997] 3 ALL ER 936 (HL). -Enoch (1850) 5 C&P 539. -Handley (1874) 13 Cox CC 79. -Poulton (1832) 5 C&P 329. Table of Legislation: -Offences Against the Person Act of 3 April 1925, (Trinidad and Tobago) Chap 11:08, ss 56, 57. -Criminal Code of 1988 (Act No. 23), (Saint Vincent and the Grenadines). -Medical Termination of Pregnancy Act (Act No. 4 of 11 February 1983), (Barbados). -Medical Termination of Pregnancy Act 1995 (Guyana)

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Secondary Sources: Books: -Ormerod, David. Smith and Hogan's Criminal Law (13th edn, Oxford University Press, 2011) p489. -Allen, Michael and Simon Cooper. Elliott and Wood's Cases and Materials on Criminal Law (10th edn, Sweet and Maxwell, 2010). Journal Articles: -Arthur, Joyce. "Yes, Legalizing Abortion Does Save Women's Lives." Abortion Rights Coalition of Canada, March 4, 2010. - Kissoon, Carolyn. "Pregnant little girl 'a case for abortion'". The Trinidad Express, 20 July 2012. -Kowlessar, Geisha. "Referendum needed on abortions- Fuad." The Trinidad Guardian Media Ltd, 18 -May 2012. -Maraj, Leiselle. "12,106 domestic violence cases filed". Trinidad and Tobago Newsday. 24 November, 2012. -P.K. Menon. The Law of Abortion with special reference to the Commonwealth Caribbean (1976). -Ramsaroop, Stella. "Abortion rights and wrongs." Guyana's Stabroek News, 28 January 2012.

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A Critical Appraisal of the Trafficking in Persons Act, 2011, in Trinidad and Tobago. By Kevina Ramsook Trafficking in persons is a global phenomenon and an internationally recognised form of human rights violation. It essentially involves the movement of individuals by means of force, threats, coercion or deception for the purpose of exploitation.17 Yvonne Baboolal’s article, “Warning! There are human traffickers out there,” published in the Guardian newspaper,18 justified that human trafficking exists in Trinidad and Tobago. Our country is in fact on a United States watch list ranking as Tier 2, in which this tier is reserved for countries which do not fully comply with the minimum standards for the elimination of human trafficking but which are making significant efforts to do so.19 The significant effort Trinidad and Tobago has made to eradicate trafficking in persons is the fact that an Act targeting human trafficking has finally been established. This Act is known as the Trafficking in Persons Act, 2011 and would be referred to in this research as the 2011 Act, or the “Act,” for simplicity. However, the Act is yet to be implemented as it can only come into force upon proclamation. The Act, though, is a significant effort made to eliminate human trafficking as it effectively complies with the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children (also known as the Trafficking in Persons Protocol) which is the most authoritative, recent, international instrument concerned and designed for eliminating trafficking in persons. Though the Act is not enforced, criminal law can be employed to eradicate offences relating to human trafficking but the Trafficking in Persons Act greatly override those other legislations that can be used to eradicate human trafficking. This essay, thus would attempt to analyse the reasons why the Act is effective and should be enforced.                                                               17

This definition is an abridged version of that provided in Article 3(a) United Nations Trafficking in Persons Protocol. 18 Yvonne Baboolal, ‘Warning! There are human traffickers out there’ Guardian (Trinidad 20 December 2008) 5 19 Human Trafficking in Trinidad and Tobago, ‘Baiganchoka’ <http://www.baiganchoka.com/human-trafficking-in-trinidad-and-tobago-trinidad-and-tobago-isa-destination-source-and-transit-country-for-women-and-children-subjected-to-trafficking-inpersons/> accessed 18th January 2013     

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In order to analyse the effectiveness of the Trafficking in Persons Act, 2011, the operations of the principal offences were assessed against the Trafficking in Persons Protocol, Divisions 270 and 271 of Australia’s Criminal Code and academic literature. This was done in order to examine and uncover any weaknesses in the 2011, Act, which would then determine whether this Act was in fact an effective measure that was implemented to eradicate human trafficking. A comparison between the 2011, Act, and the Protocol was made in order to examine if the Act was in compliance with the Trafficking in Persons Protocol. The Act should be in compliance with the Protocol because the Act is specifically designed to give effect to it which means that the Trafficking in Persons Act must adopt certain provisions outlined in the Protocol. If the Act does in fact comply with the Protocol, which is the most authoritative international instrument on human trafficking, then the Act is effective. The academic literature employed was an article entitled, “Trafficking in Persons,” by Jarrod Jolly which dealt with an explanation and a perfect analysis of Australia’s Criminal Code. Reference was also made to the actual Criminal Code of Australia with particular emphasis on Divisions 270 and 271. This was compared with our Trafficking in Persons Act in order to justify that our Act would in fact be effective if it were to be implemented by showing weakness in Australia’s Criminal Code. The comparisons are now analysed below to illustrate how the 2011, Act is adequate. Article 3(a) of the Trafficking in Persons Protocol provides an in-depth definition of human trafficking. This definition is important because it provides an internationally agreed norm of what human trafficking is, sets out elements of human trafficking that should be criminalized and is broad and clear that it is not confused with other offences such as smuggling. Article 3 (a) of the Protocol specifies the, “acts,” of trafficking in its definition as being, “the recruitment, transportation, transfer, harbouring or receipt of persons.” However Australia’s Criminal Code, Division 271 illustrated that the, “acts,” of trafficking is simply, “organisation and facilitation.” Though it is likely to be construed as covering any of the acts of trafficking under the Protocol as mentioned, it was recommended that they should amend the, “acts,” of trafficking to closely reflect those specified in the Protocol because the definition needs to be clear.20 The importance of legislations incorporating the specific definition of human trafficking set out in the Protocol                                                               20

Jarrod Jolly, ‘Trafficking in Persons’ [2010] Sydney Law Review, 28 18 


was illustrated in the case, Attorney-General's Reference (nos. 129 and 132 of 2006),21 as it was held that the Protocol’s definition provides an internationally agreed norm of the term and when other Acts have different definitions, “the definitional confusions provide space for criminals to continue to exploit trafficked slaves with impunity.” However, the Trafficking in Persons Act, 2011, adopts the exact definition of human trafficking in the Protocol. Thus, this illustrates the adequacy of the Act as it complies with the Protocol, adhering to its international obligations and unlike Division 271, would not need any amendments for this section. Furthermore, the penalties attached to trafficking offences must be high in order to reflect the seriousness of the offence of human trafficking as a, “crime against humanity.” The Protocol illustrated that human trafficking offences must carry a penalty of twenty years imprisonment and should be comparable with serious offences such as kidnapping.22 However, the penalties under Division 270 of Australia’s Criminal Code did not comply with the Protocol. When Australia’s Criminal Code Amendment Bill, 2004 was presented to the Senate in Australia, it was highlighted that the penalty for human trafficking which was twelve years imprisonment was the same penalty as blackmail, a less serious offence and thus do not show the seriousness of the offence of human trafficking.23 However, the penalties under the Trafficking in Persons Act, unlike that of Division 270, do indicate the seriousness of the crime. For example, a person who is found sexually exploiting children, under the 2011 Act, section 18 can face twenty years imprisonment. Also persons found aiding, just simply, “aiding,” in prostitution under the 2011 Act, can be sentenced to fifteen years imprisonment. Thus, the penalties under the 2011 Act, comply with the agreed penalties under the Protocol as the penalties established are comparable to serious offences and as such illustrating the Act’s effectiveness. Additionally, the structure of the Act is quite important and it should not be confusing and must be clear so that the public can understand it and make reference to it with ease. However, the human trafficking offences illustrated in Division 271 of the Criminal Code are repetitive and confusing. This is because of its structure whereby offences relating to human trafficking are                                                               21

[1948] 1 KB 223 Trafficking in Persons Protocol [2000], s14(6) 23  Jarrod Jolly, ‘Trafficking in Persons’ [2010] Sydney Law Review, 28  22

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divided into those that concern international trafficking and those that concern domestic trafficking.24 The international offences are further divided into two groups; those that concern trafficking into Australia and those that concern trafficking out of Australia. The same structure is adopted in relation to the trafficking in children offences.25 As such there are twelve possible offences of human trafficking in Australia. The structure is thus quite complicated. However, the structure of the 2011, Act is remarkable as trafficking in children and persons internationally and domestically, are broken down into simply two sections whereby one section deals with trafficking in persons26 and the other, trafficking in children.27 Also, there are sub-sections under each section that is broken down illustrating who can be prosecuted for engaging in human trafficking. Additionally, under the Act, there are no separate sections dealing with international and domestic offences, like that of Divisions 271 as these are simply merged together so it is easy to understand. Also, the 2011, Act includes side notes, which makes easy reference to specific offences such as “Trafficking in persons,” which additionally makes the structure effective unlike that of Division 271. As a result, the structure does in fact reflect the Act’s effectiveness, as its structure is not complicated or confusing and thus making the Act adequate. Furthermore, a comparison between the Trafficking in Persons Act and other legislations in Trinidad and Tobago targeting elements of human trafficking was made to show how the 2011, Act would be more efficient if it were to be implemented. Human traffickers sexually exploit children whereby exploitation includes child pornography and aiding in prostitution, according to section 3, of the Trafficking of Persons Act. Side notes, an intrinsic aid was employed in order to easily find the definition and the penalty of trafficking children under the 2011 Act. The side note entitled, “Trafficking in Children,” found in section 18, defined trafficking children as persons who, “recruits, transports, transfers or receives a child, into or within Trinidad and Tobago or from Trinidad and Tobago to another jurisdiction, and harbours a child in Trinidad and Tobago for the purpose of exploitation.” Persons found committing such offence would be fined one million dollars and be sentenced to twenty years imprisonment. However, since the Act has yet to be implemented, the Children’s Act, Chapter 46: 01 was examined in order to analyse whether the prostitution of children and exposing them to children pornography, in particular,                                                               24

 Australia

Criminal Code 1995, s 271(2)  Jarrod Jolly, ‘Trafficking in Persons’ [2010] Sydney Law Review, 28 26 Trafficking in Persons Act 2011, s 16 27 Trafficking in Persons Act 2011, s 18  25

20 


can be eradicated and dealt with. The schedule of the Children’s Act, being an intrinsic aid was examined in order to find out if the offence of trafficking children existed. The schedule illustrated that section 8 of the Act dealt with the offence of prostitution of miners whereby anyone who is found aiding in prostitution of a child can be imprisoned for five years and section 7 of the Children’s Act dealt with individuals who can be sentenced for six months imprisonment if they allow children to reside or frequent a brothel. Though human traffickers can be punished under the Children’s Act, Chapter 46:01 if they are found sexually exploiting children or aiding in the exploitation, as just shown, the need to implement the Trafficking in Persons Act is of great importance. This is due to the fact that the 2011, Act imposes higher penalties upon offenders, as persons found sexually exploiting children can be subjected to twenty years imprisonment compared to five years imprisonment under the Children’s Act. Furthermore, the Trafficking in Persons Act is of great importance because it seeks to criminalize all forms of human trafficking. For example, section 26 of the Trafficking in Persons Act criminalises people receiving financial or other benefits, knowing that it results from the offence of trafficking children in which they can be fined for four hundred thousand dollars and to imprisonment for fifteen years. The Children’s Act however does not criminalise persons for such offence and thus the 2011 Act is of great importance because it targets every element of human trafficking such as individual who have knowledge of those trafficking children and severely punishes them and it also imposes higher penalties. Additionally, human traffickers sexually exploit women. Opposition Senator Cudjoe justified this as he stated, “Sex traffickers form partnerships with brothel owners from Trinidad and Tobago, lure women to Trinidad with offers of legitimate work, and then forced them into sexual servitude by having them work in strip clubs or massage parlours.”28 In the case, R v Sieders29 Campbell JA defined sexual servitude as, “situations in which a victim enters into an arrangement to provide sexual services but where the victim is not free to leave.” In order to eradicate this issue, Trinidad and Tobago Sexual Offences Act of 1986, modified by the Sexual Offences (Amendment) Act of 2000, was examined. The broadest offence is, “aiding in prostitution,” under the Sexual Offences Act, which is one of the types of exploitation, as                                                               28 29

Sean Douglas, ‘Sex Trafficking in Trinidad and Tobago’ Guardian (Trinidad 22 May 2011) 3 [2008] NSWCCA 187   21 


illustrated in section 3 of the Trafficking in Persons Act. Section 24 of the Sexual Offences Act provided a definition of aiding and engaging in prostitution and outlined the penalty of such offence where it was held that a person, “aiding, abetting or compelling the prostitution is guilty of an offence and is liable on conviction to imprisonment for five years.” Also, according to section 17 of the Sexual Offences Act, persons who procures another for prostitution, “either in Trinidad and Tobago or elsewhere,” can be liable to imprisonment for fifteen years. However, section 17 of the Trafficking in Persons Act, stated that persons who, “for the purpose of exploitation,” in this case exploitation includes sexual exploitation, procurement or aiding in prostitution, can be liable to imprisonment of fifteen years. Thus, the penalty under the Trafficking in Persons Act, being fifteen years for aiding in prostitution, compared to five years imprisonment under the Sexual Offences Act is much higher. However, not only is the penalty higher under the Trafficking in Persons Act, but there is also one clear definition that targets all types of sexual exploitation under the 2011 Act. This one definition includes aiding in prostitution and procurement unlike the Sexual Offences Act, whereby section 17 deals separately with procurement and section 24 deals with aiding in prostitution. Thus showing that the structure of the Trafficking in Persons Act is effective as an individual need not look at every section of the Act to see who can be criminalized for engaging in sexual exploitation, since under the 2011 Act, it is simply stated in one section. Furthermore, the Trafficking in Persons Act is quite effective as it offers great protection for the victims.

Part VI of the 2011 Act, entitled, “Assistance to and protection of Victims of

trafficking,” illuminates the great protection that is offered under the Act. According to section 34, of the 2011 Act, the identity of the victim and the victim’s family shall be kept confidential and the victim’s hearing is to be heard in private (on camera) in order to protect the victim’s privacy. The protection offered is so effective that persons can be fined one hundred thousand dollars if they are found revealing the victim’s confidentiality, according to section 34 (3) of the Act. Also, victims are protected by a Counter Trafficking Unit established under the 2011 Act. As outlined in section 44 (2) the Unit provides for victims who are children with services, which may include the understanding of their rights, privacy, housing, care and appropriate support. Thus, the fact that a Counter Trafficking Unit has been established to protect victims highlights

22 


the effectives of the Act and illuminates the need for the Act to be implemented. As such the 2011, Act is essential as it provides extensive protection to the victims of human trafficking. In conclusion, the Trafficking in Persons Act, 2011 is an effective, sufficient, adequate Act that can criminalize human traffickers. The main evidence showing that the Act is effective is the fact that it complies with the Protocol by adopting the broad definitions and agreed penalties under the Protocol. The Act must comply with the Protocol because the Act was specifically designed to give effect to it and the fact that the Trafficking in Persons Act did in fact adhere to the Protocol illuminates the Act’s effectiveness. Australia’s Divisions 270 and 271 was employed to further illustrate that the 2011 Act, has little or no weakness unlike that of Australia and would not need any amendments. For instance, one of the penalties for human trafficking under Australia’s Divisional Code was twelve years imprisonment and paralleled the penalty for blackmail, a less serious offence, whereby this would need amendments as the penalty should be higher and comparable to serious offences like kidnapping. However, the 2011 Act complies with the Protocol by establishing the agreed penalty of twenty years imprisonment for those found trafficking persons. However, since the 2011 Act was not enforced, other legislations, being the Children’s Act, Chapter 46:01 and the Sexual Offences Act were employed and compared against the 2011 Act to show the necessity for the implementation of the 2011 Act. The comparison illuminated that under the 2011 Act the definitions were much clearer, the penalties much higher and more importantly, there was protection for human trafficking victims unlike the other legislations. For instance, unlike the Children’s Act, Chapter 46:01, the 2011 Act seek to target every element of human trafficking as section 26 of the 2011 Act criminalises people receiving benefits, knowing that it results from the offence of trafficking children. As a result, the Trafficking in Persons Act if it were to be implemented would be effective as the 2011 Act incorporates several measures to target and severely criminalize human traffickers.

23 


BIBLIOGRAPHY Hansard: Official Committee Hansard, Legal and Constitutional Committee, Senate, Criminal Code Amendment (Trafficking in Persons Offences) Bill 2004 (2005) International Instruments: Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children Journal Articles: Cowen L, ‘Victims of human trafficking: Protection from punishment’ [2011] Archbold Review, 4 Jolly J, ‘Trafficking in Persons’ [2010] Sydney Law Review, 28 Legislations: Australia Legalisation: Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 Australia Criminal Code 1995 Australia Legislation Trinidad and Tobago Legislation: Children’s Act, Chapter 46: 01 Sexual Offences Act 1986 Sexual Offences (Amendment) Act 2000 Trafficking in Persons Act 2011 Trinidad and Tobago Legislation Newspaper Articles: Yvonne Baboolal, ‘Warning! There are human traffickers out there’ Guardian (Trinidad 20 December 2008) 5 Sean Douglas, ‘Sex Trafficking in Trinidad and Tobago’ Guardian (Trinidad 22 May 2011) 3 24 


Table of Cases: Attorney-General's Reference (nos. 129 and 132 of 2006) [1948] 1 KB 223 R v Sieders [2008] NSWCCA 187 Websites Human

Trafficking

in

Trinidad

and

Tobago,

‘Baiganchoka.’

Online

Report

http://www.baiganchoka.com/human-trafficking-in-trinidad-and-tobago-trinidad-and-tobago-isa-destination-source-and-transit-country-for-women-and-children-subjected-to-trafficking-inpersons/ Date accessed: 18th January 2013

25 


The role of the Domestic Court in invoking International Human Rights Treaty: A Comparative analysis between Australia, Barbados, Jamaica and Trinidad and Tobago

By Gillianna Guy Introduction This paper attempts to analyse the role of domestic courts in the application of instruments of international law. In evaluating this role, it is imperative that the theoretical framework of the application of international law and the characteristics of each theory be evaluated. A comparative analysis of decision made by domestic courts of Commonwealth countries (Australia, Sri-Lanka, Barbados and Trinidad) will be undertaken to determine whether the judicial decisions of these courts are in keeping with the theoretical framework they subscribe to, or if an alternative approach has been taken. By doing such, this paper aims to show that according to the gravity of the issue as well as the other factors such as public policies, courts may be flexible in applying the dualist doctrine. Theoretical framework in relations to relationship of domestic law and international law The subscription of states to international law can be seen through two distinct theories, monism and dualism. These theories differ in regards to their approach in incorporating international law into municipal jurisdiction.30 States that carry monist legal system holds the view that international law and domestic system as one legal system. In support of this Talbot J, in Buvot v Barbuit31 stated that the law of nations are adopted to its full extent by the common law and is held to be a part of the law of the land. International treaties as a result, are automatically incorporated into national law once the executive ratifies it. In contrast, the dualist views that international law and municipal law are two separate and independent legal systems, one at a national level and the other at the international.32 The 'Fitzmaurice compromise' asserted that since the two systems, international and national law, do                                                               30

nd

 J.C Goldsmith and E.A Posner, The Limits of International Law (2  edn., Oxford University Press 2005) 15   (1737), Cas.t. Talb. 281 at 283, 25 E.R.777 (Ch.).  32  S. K. Verma, An Introduction To Public International Law (PHI Learning Pvt. Ltd., 2004)125  31

26 


not operate in common field, they can never come into conflict. 33 Both systems are supreme in their own way, the latter attributes rights and duties to individuals at the domestic sphere and the former regulates relations between states. Dualism upholds the classic view that even if an international treaty is ratified by the executive, this treaty forms no part of domestic law unless they are incorporated by the legislature34. In other words, ratification of a treaty cannot ipso facto add to or amend the constitution and laws of a state because that function is reserved to the legislative arm of the domestic parliament.35 Article 26 of the Vienna Convention on The Law of Treaties demands that obligations be performed “in good faith” or pacta sunt servanda once ratified. However contrary to this dualist countries argued that the court should not be subjected to these treaties and they should be allowed to uphold the supremacy of their constitution. Impact of Paradigm Shift of International Law on the Dualist Doctrine The rigidness of the dualist doctrine over the past decades has been under severe scrutiny. International law has shifted from state to state relations to an approach encapsulating the well being of individuals36. The ratification of The Universal Declaration Human Rights and other similar international instruments now meant that in theory, governments are expected to put into place domestic measures and legislation that are compatible with their international obligations. Where domestic proceedings fail to address human rights abuses, or to implement mechanisms for individuals and groups that are subject to these injustices, an alternative route through these tribunals is now available.

As a result, individuals can now petition directly to these

International Council of Human Rights in cases where their fundamental rights are being infringed on within their domestic jurisdiction.37 The legal issue however, does not arise with the establishment of these treaties but rather the executing of them. Because some countries subscribe to dualist doctrine, The Declaration of Human Rights, like any other international instrument, cannot infuse its way into the legal                                                               33

 John  Merrills and Sir Gerald Fitzmaurice (eds), Judge Sir Gerald Fitzmaurice and the Discipline of International  Law: Opinions on the International Court of Justice, 1961‐1973 (Martinus Nijhoff Publishers 1998) 30  34  Mark Elliott, Public International Law (Robert Thomas Oxford University Press 2011) 71  35  Fenwick, Helen, Text, cases, and materials on public law and human rights (Helen Fenwick and Gavin Phillipson  Routledge, 2011) 62  36  Gideon Boas, Public International Law: Contemporary Principles and Perspectives (Edward Elgar Pub. 2002)179  37  Colin Wanbrick , ‘Brownlie’s Principle of Public International Law’ (2000) 1(1) EJLT <http://ejlt  .org/article/view/17> accessed March 27,2013 

27 


system or judicial system unless it is incorporated by the legislative arm of the government. As a result, the courts are not obligated to implement the advice of the tribunals that “protect” these declarations, simply because these tribunals do not form part of their judicial hierarchy.38 However exceptions of this were seen in Privy Council cases such as Pratt and Morgan v AG.39 In addition to these exceptional cases, it is argued that The Vienna Convention on the Law of Treaties, Article 18 (a) indicated that an expectation is created with the onus being on the domestic law to be compatible with international obligations unless they have clearly communicated their desire not to do so. This ‘expectation’ has created somewhat of a blurred understanding between the domestic courts and individuals that are subject to the petition. It is assumed that the courts must constantly take into consideration the ‘expectation’ of these individual when making judgements. Failure to do this sometimes leads to the accusations that their judgements are infringing upon the constitutional rights of the petitioners. However in cases where they do apply these unincorporated international instruments, they are also accused of acting ultra vires. Case law In cases of Minister for Immigration and Ethnic Affairs v Teoh

40

, and A.G v Joyce and

Boyce41 the courts were accused of acting ultra vires by applying the unincorporated international treaty into their judgments. In comparison the courts in the judgments of A.G v Nallaratnam42 and A.G v Matthew43, upheld the dualist notion that they subscribed and reiterated they were only bound to their constitution and judicial decisions within their judicial hierarchy. Ah Hin Teoh was a Malaysian citizen living in Australia under a temporary entry permit. He married Jean Helen Lim, an Australian citizen and they had 7 children together. Mr Teoh was                                                               38

 Christine Reed, ‘Public Law and Public Administration Theory’ (ASPA) National Conference Founders' Forum  panel:"Transformations in Public Law, New York 2008)  39  [1993] 4 All ER 769, [1994] 2 AC 1  40  (1995) 183 CLR 273, [2008] IEHC 30.  41  [2006] CCJ 1 (AJ)  42  S.C. SpL (LA) No. 182/99  43 [2005] 1 AC 433,[2004    

28 


convicted of drug offences and his application for a permanent entry permit was refused on grounds that he failed the criminal and character evaluation under the Australian Migration Act 1958. He applied to the Immigration Review Panel for a review and the Panel denied his application. The minister accepted the decision and ordered deportation. Teoh petitioned to the Federal court on the grounds that the delegate failed to comply with procedural fairness and that the execution of their power was done improperly. The court dismissed the application. On appeal, the full bench of the Federal Court (Black CJ, Lee and Carr JJ) overruled the previous decision and held that there was improper use of power because the panel failed to do the necessary investigations into the hardship of his wife and children. An order for stay of deportation was given until reconsideration was done in light of the courtâ&#x20AC;&#x2122;s finding. The immigration minister then appealed to the High Court of Australia. The majority (Mason CJ, Deane, Toohey and Gaudron JJ) upheld the decision that there had been a breach of natural justice, because the Immigration department had failed to invite Teoh to make a submission on whether a deportation order should be made, contrary to the Convention on the Rights of the Child, Article 3.1, which provided that in any administrative decision concerning a child, the child's best interests must be a primary consideration. The courts also focused Human Rights and Equal Opportunity Commission Act 1986, Articles 3 and 9, which also support the that the childâ&#x20AC;&#x2122;s benefits should be taken into consideration and that a child should not be deprived of a parent. They held that even though these conventions were unincorporated it still presented grounds whereby parents and children were afforded a legitimate expectation that such actions would be conducted in conformity with the principles of the convention. The courts in A.G v Joseph and Boyce similar to Teoh interpreted unincorporated international instruments into its judgement. Joseph and Boyce were jointly convicted and sentenced to death for the murder of a young man. Their appeals to the Court of Appeal and the Barbados Privy Council were dismissed. The death warrants were read to Joseph and Boyce, who subsequently disputed that their constitutional rights were being infringed on, because, their petition to American Convention of Human Rights (ACHR) was still pending. The respondents argued that according to Article 4(6) of the ACHR every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. They 29 


claimed that the courts by executing the warrant denied them the legitimate expectation they were afforded under the convention. The Caribbean Court of Justice held the doctrine of legitimate expectation in this case is rooted in a number of considerations which are peculiar to the situation in which it has been invoked. They indicated that even though this legitimate expectation was evident, it is not an opportunity whereby persons can frivolously apply. The courts indicated that in this case they ought to balance the desire to give the condemned man an opportunity to secure the commutation of his sentence, the direct access to international tribunal which the treaty affords him and giving effect to the State’s interest in avoiding delay even for a limited period in the carrying out of a death sentence. In contrast, Nallaratnam Singharasa was convicted on count of 5 charges of mutiny. The High Court sentenced him to terms of 10years. The Petitioner appealed the conviction to the court of appeal and the Supreme Court to which his attempts were futile. He later sought an application to appeal to Human Rights Commission (HRC). Sri-Lanka acceded to on 11th June, 1980 and 1997 to the International Covenant on Civil and Political Rights (the Covenant) respectively. Both instruments were adopted by the General Assembly of the United Nations. The HRC was entitled to entertain complaints from individuals who fall within the jurisdiction of a state that has acceded / ratified the Optional Protocol (OP) to the International Covenant on Civil and Political Rights (ICCPR) both of which Sri-Lanka adhered to. The issue however was whether the Supreme Court of Sri-Lanka was obligated to uphold the decisions of the HRC, in that they are under the obligation to provide the applicant with an effective and appropriate remedy, including release or retrial and compensation. The Supreme Court held the HRC at Geneva does not have judicial power under the constitution of Sri-Lanka and as a result the petitioner cannot seek to ‘vindicate and enforce’ right through such medium. Analysis The decision of Teoh and Joseph and Boyce were substantially different from Nallaratnam and Matthew. In Teoh however the issue was whether the treatment of ‘legitimate expectation’ was 30 


aligned to procedural requirements or to the substantive protection of the treaty. McHugh J highlighted that the doctrine of legitimate expectation was aligned to procedural fairness rather than an ‘owed right’ as explained in the ratio.44 The question arose as to whether the court’s decision in Teoh could be justified based on ‘legitimate expectation’ or were there underlying factors that influenced this decision. A variety of external factors such as lobbying by members of parliament for the incorporation of International Human Rights Treaty as well as the international community’s sensitivity on the gravity of the issue may have been said to have influence the judgment of Teoh. The welfare of the family and children has of paramount importance to the international community throughout the period of this decision. The courts were forced to weigh between the welfare of the family and their international expectation to that of the principles enrooted into the doctrine of dualist.45 It meant that if this is expectation is true, following the line of precedent shouldn’t the respondent in cases like Lam v States46 be afforded this expectation like Mr. Teoh? At first glance it may seem as both cases were identical however, if one holds a microscopic view, one will realize that Teoh’s importance to his children and his family was different from Lam’s. Teoh was the sole breadwinner to a family of nine (9) as compared to Lam who occasionally interacted with his daughters and the courts had to take this into consideration when extending the degree of the expectation. McHugh J disagreed that either Teoh or Lam was entitled to an ‘expectation’ and accused the court in Teoh of ruling on sympathetic grounds rather than that of law. McHugh J asserted that the court had no obligation to give substantive protection to any right, benefit, privilege or matter that is the subject of a legitimate expectation.47This “expectation” does not require a decision-maker to inform a person affected by a decision that he or she will not apply a rule when the decision-maker is not bound and has given no undertaking to apply that rule. Joseph and Boyce raised a similar issue. The courts were faced with determining between whether they were to oblige to give a condemned man the opportunity to life or to permit a state’s interest to a hasty execution. This decision was influence by two important points, firstly                                                               44

 Elliot, 31   Verma, 69  46  (2003) 214 CLR 1, [2011] UKPC 14  47  B Fehlberg and J  Behrens,  Australian Family Law The Contemporary Context (Oxford University Press, 2008) 39.  45

31 


the previous ruling in Pratt and Morgan v A.G and secondly the international disapproval of the death penalty that was upheld in these Caribbean countries. The case of Pratt and Morgan was a seminal case to the Caribbean in relation to the death penalty. It set the threshold for cases like Neville Lewis v A.G,

48

Joseph and Boyce and to some extent Matthew. Ironically, Pratt and

Morgan held that it is ‘cruel and unusual punishment to have a man on death row for more than 5yrs awaiting his execution.’ However in Joseph and Boyce, when the court attempted to hasten the execution, the ACHR advised that the condemned had a right to petition. The court once again skilfully applied the concept of legitimate expectation, but overtly concluded that it was a breach of his right to “due process”. Similar to Teoh, they were accused of allowing international law to ‘piggyback’ on concepts like legitimate expectation, natural justice and due process and as such they created a gateway for international law to indirectly infuse into domestic jurisdiction. Through these conceptual mediums, the court allegedly makes their decision thus covertly acting ultra vires to the dualist principles. In comparison, both Nallaratnam and Matthew enforced the rights to constitutional supremacy as opposed to parliamentary sovereignty. Nallaratnam argued that the constitution of Sri-Lanka does not provide for release or retrial of a convicted person after his conviction is confirmed by the Supreme Court of Sri Lanka. Therefore, the state cannot execute the decision of the Human Rights Committee to release the convict or grant a retrial. The government of Sri Lanka cannot be expected to act in any manner which is contrary to the Constitution of Sri Lanka. Similarly in Matthew, the AG of Trinidad and Tobago asserted that the mandatory death penalty that exist is protected by the saving laws clause and as a result it cannot be interfered with or altered unless done by the prescribed criteria outlined in the constitution. Conclusion The issue of the incorporation of international law according to the theory of dualism has raised a lot of issues in regards to the judgement of some cases. The courts are sometimes accused as acting ultra vires by covertly applying these international treaties to their judgments. However in cases where these accusations are made, one must examine all the factors that could have said to be instrumental in the courts decision. In Teoh the gravity of the situation as well as the                                                               48

 [2001] 2 AC 50, PC 

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sensitivity of parliament and the international community influenced the decisions of the court. Similarly in Joyce and Boyce, the courts were influenced by the previous discussion made in Pratt and Morgan as well as the ‘call’ for removal of hanging in the Caribbean. The issue however remains, after all these factors are applied, is whether or not the court’s decision in these cases were justified. The case AG of Canada v AG of Ontario49 outlines that even though the executive acceded the treaty, courts still give due consideration to international obligations and try as far as possible to bring it in tangent with local law. Based on this it can be asserted that the doctrine of dualism cannot be rigid, in that the role of the courts is not solely to adhere to these individual theories but rather to ensure that local laws aligned themselves with international obligations as seen in Teoh.

                                                              49

 (1894) 23 S.C.R. 45 

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BIBLIOGRAPHY Books Boas G, Public International Law: Contemporary Principles and Perspectives (Edward Elgar Pub. 2002)179 Elliott M, Public International Law (Robert Thomas Oxford University Press 2011) 71 Fehlberg B and Behrens J, Australian Family Law The Contemporary Context (Oxford University Press, 2008) 39. Fenwick H, Text, cases, and materials on public law and human rights (J. Gavin Phillipson Routledge (2011) 62 Goldsmith J.C and Posner E.A, The Limits of International Law (2nd edn, Oxford University Pres2005) 15 Merrills J and Fitzmaurice G (eds), Judge Sir Gerald Fitzmaurice and the Discipline of International Law: Opinions on the International Court of Justice, 1961-1973 (Martinus Nijhoff Publishers 1998) 30 Verma S. K, An Introduction To Public International Law (PHI Learning Pvt. Ltd., 2004)125 Websites Wanbrick C, ‘Brownlie’s Principle of Public International Law’ (2000) 1(1) EJLT <http://ejlt .org/article/view/17> accessed March 27, 2013 Conference Papers Reed C, ‘Public Law and Public Administration Theory’ (ASPA) National Conference Founders' Forum panel: “Transformations in Public Law”’ (New York 2008)

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The Literal vs. Legal Protection of the Sea Turtle in Trinidad and Tobago

By Sasha Mangar The international and domestic legislation protecting the sea turtle in Trinidad is impressive, but the case law and enforcement of these laws are practically nonexistent. The five species of sea turtles in Trinidad and Tobago are the leatherback turtle, green sea turtle, olive ridley sea turtle, loggerhead sea turtle and hawksbill sea turtle. The leatherback sea turtle has an estimated reduction rate in its global population of 80% in the last 10 years50. These five species are protected under the Environmentally Sensitive Areas and Species 2001 (ESS) and CITES. Trinidad is part of a few notable environmental treaties such as The Convention for International Trade in Endangered Species 1984 (CITES), The Protocol concerning Specially Protected Areas and Wildlife 1990 (SPAW) and the United Nations Convention on Biological Diversity 1996. The national policies in place to protect the sea turtle are the national environmental policy, national wetlands policy, forest policy, protected areas policy and climate change policy. Trinidad has set up a legal framework for sea turtle management which include Conservation of Wildlife Act, Fisheries Act, Environmental Management Act (EMA) and Environmentally Sensitive Species Rules (ESS).51 The sea turtle is an endangered species, and five species of the sea turtle can be found in Trinidad. This populous makes Trinidad partially responsible for the fate of these majestic creatures. The leatherback turtle is critically endangered and Trinidad is famous for being one of its breeding grounds.

It has also benefited economically through tourism because of the

leatherback turtle, giving Trinidad an incentive to protect its habitat. Enacting international and domestic legislation is the first step to protecting this valuable natural resource.

The

embarrassment that Trinidad faced in the global community during 2012 due to the negligence of the EMA, which destroyed hundreds of rare turtle eggs showed the need for more pervasive                                                               50

 Scott A. Eckert, ‘Global Status of the Leatherback Sea Turtle: the Perspective from Trinidad and Tobago’ Wider  Caribbean Sea Turtle Conservation Network. (2012)    51  Dr. Joth Singh, ‘Status Update on Sea Turtle Conservation in Trinidad and Tobago’ Environmental Management  Authority. (2012)   

35 


measures52. This oversight has put Trinidad at the forefront of criticism in performing more than the minimum duties towards their environmental legislation. Joining these international treaties is not enough to be considered a good global citizen, not when gross oversight is making these promises seem hollow. As a global citizen, Trinidad has done its duty by joining these international conventions and enacting domestic legislation. Trinidad has signed on to CITES, SPAW and The United Nations Convention on Biological Diversity 1996. The Commonwealth Caribbean is under the common law which means that it adheres to the dualist doctrine. This doctrine only allows international legislation to be enforced if it has been enacted into domestic law. These three treaties have not been enacted into domestic law. In the case of Natural Resources Conservation Authority v.Seafood and Ting International Ltd,53 the Court of Appeal of Jamaica had to determine whether the provision of CITES was applicable to local exporters of Queen Conch. CITES aim was to debar exporters without export permits to sell Queen Conch. The Court of Appeal held that the absence of local legislation incorporating CITES into domestic law robbed the permit system of all validity. In the case of Talisman (Trinidad) Petroleum Ltd. v The Environmental Management Authority,54 the Environmental Commission had to determine whether a particular wetland was a designated protected area under the Ramsar Convention. Trinidad and Tobago was a signatory of this convention. Talisman, the appellant, wished to do seismic research in an area, which included part of the Nariva Swamp, which was a designated wetland site under the Ramsar Convention. The EMA refused to grant a Certificate of Environmental Clearance; one of the facts they relied on was that the area in question consisted of part of a protected wetland under the Ramsar Convention. The Commission held that although the site was designated a Ramsar site, there was no local legislation to give legal protection to the designation. These are two instances in the Caribbean, where being signatory to international conventions without enacting                                                               52

 Kim LaCapria ’Baby Turtles, Eggs Destroyed by Accident in Trinidad, Conservationists Want Answers’ (The  Inquisitr 21 July 2012) <http://www.inquisitr.com/273902/baby‐turtles‐eggs‐destroyed‐by‐accident‐in‐trinidad‐ conservationists‐want‐answers/#jLzELjGC94YSVSF1.99 >    53  Natural Resources Conservation Authority v. Seafood and Ting International Ltd., (Suit No. C.L. 1999/S‐134; dated  July 1 1999)    54  Talisman (Trinidad) Petroleum Ltd. v. The Environmental Management Authority, EA 3 of 2002.   

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them into local legislation has effectively made them void. Trinidad can continue to sign and ratify international treaties and conventions but without the validity, the courts will not recognize these international laws.

The sea turtle will essentially have no protection under these

conventions making their purpose questionable. Trinidad has laid out a legal framework in order to protect its environmental interests. This domestic legislation includes the EMA, ESS and The National Environmental Policy 2005. The objectives outlined in Schedule II of the ESS are as follows: a) Maintenance of species abundance and diversity; b) Preservation of the integrity of species’ populations to ensure genetic viability and to sustain their intangible and direct material benefits; c) Maintenance of its importance or significance to the ecosystem(s) of the immediate locality or to wider areas; d) Regulation of species which are or may pose a health or ecological liability; e) Provision of valuable educational and non-destructive scientific research opportunities; f) Demonstration of the benefits of wise use and the pitfalls of indiscriminate use of particular species. The five species of sea turtle that nest in Trinidad are designated under the ESS Rules 2001. They are protected from poaching, trade, exploitation, disturbance during breeding, incubation or migration. The National Environmental Policy 2005 was laid in Parliament on September 2, 1998. Section 18 of the EMA allows that: “The Policy may be revised from time to time.” This is done in order to recognize the rapid industrialization of Trinidad and Tobago, specifically the development in the housing sector and expansion and upgrading of infrastructure.

The

Government saw fit to revise the 1998 NEP and invoked Section 18 (5) of the EMA. The major development of the petroleum and petrochemical sector and its expansion has made Trinidad and Tobago the largest supplier of LNG to the United States and also the number one exporter of ammonia in the world. The Government states in the NEP that it is duty bound to ensure that Trinidad and Tobago finds the right balance between economic development and environmental conservation. The environment is an essential pillar of economic and social development and 37 


consequently environmental sustainability is a key objective of economic development planning. This policy assures that economic development is not undermined by the unsustainable use of environmental assets. The objectives of the Environmental Management Act, 2000 are as follows: (a) Promote and encourage among all persons a better understanding and appreciation of the environment; (b) Encourage the integration of environmental concerns into private and public decisions; (c) Ensure the establishment of an integrated environmental management system in which the Authority, in consultation with other persons, determines priorities and facilitates coordination among governmental entities to effectively harmonise activities designed to protect, enhance and conserve the environment; (d) Develop and effectively implement written laws, policies and other programmes for and in relation to – i. The conservation and wise use of the environment to provide adequately for meeting the needs of present and future generations and enhancing the quality of life; ii. The Government’s commitment to achieve economic growth in accordance with sound environmental practices; iii. The Government’s international obligations; and (e) Enhance the legal, regulatory and institutional framework for environmental management. Sustainable development is the overlying theme in the NEP and EMA objectives. In Principle 3 of the Rio Declaration, sustainable development is defined as an increase of a country’s wealth production, that is, its gross income, which does not entail parallel reduction or degradation of its natural capital. Natural capital is the sum of all kinds of ecosystems into which living and physical systems organize themselves. This economic and human development must be in accordance with sound environmental practices as stated in the EMA’s objectives. It is clear that it is the environment that provides this economic growth. Trinidad and Tobago’s most profitable export is oil and the environmental consequences of producing oil are substantial. The question is that with the economic goals of the Caribbean, is sustainable development possible? In The 38 


Role of Environmental Law Within the Framework of Sustainable Development,55 Her Honour Sandra Paul proposes this question. The exploitation of natural resources in the Caribbean in order to attain economic goals is still the objective of each state. Environmental legislation has been rapidly expanding across the globe for the past 20 years. Trinidad has differentiated itself in the Caribbean by creating the Environmental Management Act, 2000. This Act established the Environmental Commission, as a superior court of record, with jurisdiction to hear and determine environmental disputes or any other written law provided for under the Act. Environmental law must interweave environmental interests with developmental policies and programmes. This concerns regulation and control over the way natural resources are used, which is achieved by measures concerning permits or sanctions, waste disposal regulations, setting standards of emissions and effluents, resource management laws and penal provisions upon violation of regulatory measures.

From the perspective of developing countries, the

regulatory and control mechanism in environmental law suffers from inadequate enforcement because of over-riding concerns for achieving economic growth.

Compliance with

environmental law and enforcement of the regulatory mechanism is a major concern in developing countries and especially in the Caribbean.

The problem is without serious enforcement of environmental legislation its existence is inconsequential. In 2009, the EMA welcomed 12 new Special Reserve Police officers to help enforce its environmental legislation on a fulltime basis. The last batch of environmental police was reabsorbed into the police force, and for a few months the EMA was left without environmental police officers. These officers deal with offences under the Litter Act, the Motor Vehicles and Road Traffic Act. They must undergo special training including a workshop on Noise Pollution Control Rules, 2001; the Certificate of Environmental Clearance rules, 2001; the Water Pollution Rules (Amendment), 2006; the Environmentally Sensitive Special Rules, 2001 and the Environmentally Sensitive Areas Rules, 2001. This force is incredibly important to the protection of the sea turtle. They are on the front lines deterring hunters, poachers and keeping people from destroying the sea turtle’s habitat. The punishment for these crimes is monetary and                                                               55

 Honour Sandra Paul, ‘The Role of Environmental Law in Sustainable Development’ Environmental Commission of  Trinidad and Tobago at the Regional Needs Assessment and Planning Meeting of Chief Justices of the English‐ Speaking Caribbean (Jamaica, June 11 2004)   

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rarely substantial. There is no case law on protecting the sea turtle and there are no studies suggesting that the implementation of the environmental police unit has protected more endangered species. The environmental police unit is currently an experiment being run by the EMA and will be closed down pending a review of its efficiency. Although, if it is decided that the environmental police unit is not necessary, then under whose authority will it be to enforce the EMA. Without a proper force implemented, it will be another useless document.

The leatherback turtle is very important in terms of eco-tourism for Trinidad and Tobago. The potential for profitability matches the goals of sustainable development. The economic and environmental goals can both be reached, by protecting the sea turtle and achieving financial gains, if it is managed properly. This incentive has caused Trinidad to become more vigilant about protecting the endangered leatherback turtle. The embarrassment of 2012 was criticised on the world stage when thousands of sea turtle eggs were destroyed by cranes attempting to redirect the river that was causing problems for a tourist site nearby. The EMA was quoted stating “If left on its current course, the existing route of the river would have caused more erosion and loss to previous nesting sites… The EMA believes that this emergency action will have some positive impact on the overall population of leatherback turtles nestling in Grande Riviere.”3 This gross oversight by the EMA has led to criticism of the agency both internationally and domestically. This is not the first time the EMA has encountered severe scrutiny. In the Fisherman and Friends of the Sea v The Environment Management Authority and BP Trinidad and Tobago LLC,56 BP was not required to follow the legislative procedure in securing environmental clearance due to the EMA 1995 not being implemented by secondary legislation that would make it effective. There were also doubts that the EMA 1995 was not compatible with the Constitution of Trinidad and Tobago because it had not been passed by special majorities.

The EMA 1995 was found for all practical purposes ineffective.

Considering the vast environmental consequences of an oil pipeline and the lax state of environmental legislation, this is another case of inefficiency on the part of the Environment Management Authority.                                                               56

 Fishermen and Friends of the Sea v The Environment Management Authority and BP Trinidad and Tobago LLC  [2005] UKPC 32   

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Trinidad’s legislative efforts can be compared with the US on this topic of real world enforcement. Trinidad has not enforced their legislation on an international scale, but the US has through the well known Shrimp-Turtle Case.57 A suit was brought against the US stating their policy that shrimp trawling boats must have TEDs (turtle excluder devices) in order to export shrimp to the United States was discriminatory. Section 609 of Public Law 101-162 prohibited importation to the US of shrimp harvested with commercial fishing technology that may adversely affect sea turtles. It also provided an exception for shrimp imported from states certified thereunder. The relevant portion of this exception, applicable where sea turtles are otherwise threatened, permits certification if the exporting state adopts a regulatory program governing the incidental taking of sea turtles comparable to that of the US and with average incidental taking rate comparable to US vessels.

The appellate court found that policy

requirements for the same product would rapidly lead to the end of the WTO multilateral trading system. And, the US measure at issue constitutes unjustifiable discrimination between countries where the same conditions prevail and thus is not within the scope of measures permitted under Article XX of the GATT 1994. This case is very relevant because it provides an example of when environmental legislation and trade legislation conflict, the ultimate direction chosen by the Courts. It also provides an example for a country that is committed to upholding their environmental legislation even though it may be detrimental to trading relations.

Trinidad and Tobago has expanded its environmental legislation by enacting the Environmental Management Act and joining international treaties and conventions. One of its more noteworthy contributions is creating the Environmental Commission, the first solely environmental court in the Caribbean. The problem Trinidad is facing is one that is faced by most developing nations, the reality of sustainable development. The economic goals of a nation, the human and social development are extremely important. Natural resources are needed in order to gain financial prosperity and a promising future.

The fate of the endangered leatherback turtle is only

important until it compromises the economic climate. This was very clearly illustrated in the Shrimp-Turtle case.

Trade legislation was deemed much more vital in the international

                                                              57

 United States v India, Malaysia, Pakistan, Thailand (1998) WTO Appellate Body (Shrimp‐Turtle Case) 

 

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community than protecting the sea turtle from shrimp trawling boats. Although this case did not return a verdict in favour of the United States and the endangered sea turtle, it is still a case of enforced environmental legislation. That is something that does not seem to exist in Trinidad. The legal framework is apparent, but the lack of enforcement shines a gaping hole and questions the legitimacy of the environmental legal landscape of Trinidad. The EMA has been a complete embarrassment since its conception. From, rubber stamping BPâ&#x20AC;&#x2122;s endeavours in the Fishermen and Friends of the Sea to the international fiasco of destroying thousands of endangered turtle eggs. It has proven itself to be inefficient and inconsequential. Trinidad can continue to be a signatory on every important international convention and continue to expand its domestic law, but without proper enforcement, the leatherback sea turtle will cease to exist because of economic goals over riding environmental prosperity. BIBLIOGRAPHY Cases Fishermen and Friends of the Sea v The Environment Management Authority and BP Trinidad and Tobago LLC [2005] UKPC 32 Natural Resources Conservation Authority v. Seafood and Ting International Ltd., (Suit No. C.L. 1999/S-134; dated July 1 1999) Talisman (Trinidad) Petroleum Ltd. v. The Environmental Management Authority, EA 3 of 2002. United States v India, Malaysia, Pakistan, Thailand (1998) WTO Appellate Body (ShrimpTurtle Case) Statutes and Statutory Interpretation Convention for International Trade in Endangered Species 1984 Environmental Management Act 2000 Environmentally Sensitive Areas Rules 2001 National Environmental Policy 2005

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The Protocol concerning Specially Protected Areas and Wildlife 1990 The United Nations Convention on Biological Diversity 1996 The Constitution of the Republic of Trinidad and Tobago 1976 The Constitution of Guyana 1970

Articles and Presentations Dr. Joth Singh, ‘Status Update on Sea Turtle Conservation in Trinidad and Tobago’ Environmental Management Authority. (2012) Dr. Winston Anderson, ‘CARIBBEAN ENVIRONMENTAL LAW DEVELOPMENT AND APPLICATION’ United Nations Environment Programme (Barbados, April 2012) Honour Sandra Paul, ‘The Role of Environmental Law in Sustainable Development’ Environmental Commission of Trinidad and Tobago at the Regional Needs Assessment and Planning Meeting of Chief Justices of the English-Speaking Caribbean (Jamaica, June 11 2004) Scott A. Eckert, ‘Global Status of the Leatherback Sea Turtle: the Perspective from Trinidad and Tobago’ Wider Caribbean Sea Turtle Conservation Network. (2012)

Websites and Blogs Kim LaCapria ’Baby Turtles, Eggs Destroyed by Accident in Trinidad, Conservationists Want Answers’ (The Inquisitr 21 July 2012) <http://www.inquisitr.com/273902/baby-turtles-eggsdestroyed-by-accident-in-trinidad-conservationists-want-answers/#jLzELjGC94YSVSF1.99 >

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To what extent are International trade and the protection of the environment related, with respect to Trinidad and Tobago?

By Denzil Rajack-Prayag Introduction The emerging challenge is to examine how State-operated environmental institutions such as the Environmental Management Authority (EMA), incorporate the notion of environmental protection based on the premise of democratic participation. It includes the implementation of legal principles, public consultation and participation in decisions involving environmental consequences. International trade is the exchange of goods and services along international borders which attracts greater competition and more competitive pricing in the market. The exchange of goods and services in the oil and gas sector positively affects Trinidad’s economy, since it is the main contributor to the country’s gross domestic product. Multinational Corporations such as British Petroleum Trinidad and Tobago (bpTT) and Atlantic LNG Company of Trinidad and Tobago (ALNG) are main avenues for international trade and have propelled economic development. These multinational corporations (MNC’s) are registered and operate in numerous countries by producing and selling petrochemical goods. The country is an important trading partner with the United States of America as it is the largest exporter of liquefied natural gas (LNG) to that nation, contributing to more than 65% of USA LNG imports.58 Environmental protection is the practice of protecting the natural surroundings on individual, organizational or governmental levels, for the benefit of the natural environment and humans.59 Due to the construction and expansion of petrochemical plants through invitation to trade the biophysical environment is being degraded and heavily polluted. This has been an occurrence at Galeota Point and Guapo Bay where bpTT and ALNG are situated respectively.                                                               58

Central Intelligence Agency “Trinidad and Tobago” CIA- World Factbook URL:https://www.cia.gov/library/publications/the-world-factbook/index.html (accessed Janury,21st. 2008) 59 World Summit for Sustainable Development/Rio Plus 10.  

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The Role of Public Participation Public participation is a process by which interested and affected individuals, organizations, and government entities are consulted and included in the decision-making process.60 The public consists of a number of people reacting to an apparent interest. Although environmental agencies may claim to consider all factors involved, in reality, a greater emphasis is placed on the scientific ‘facts’ that they would have gleaned from their research. The public is the most subjected segment of the consequences of environmental decision-making and should be able to effectively influence the outcome of such judgements61. Within an environmental context, a court or tribunal, in rendering decisions pursuant to environmental legislation, is inevitably responsible for specifically taking into account the public’s interest. It is on this foundation that the uprising of a call for greater public participation has occurred. Public Participation in the Environmental Legal System In respect to the environmental issues facing Trinidad and Tobago, the public looked on with much anticipation at the establishment of the Environmental Management Authority (EMA) in 1995.62 This was the creation of a new legal establishment for the protection of the environment under the Environmental Management Act No. 3 of 1995, later substituted by the Environmental Management Act No.3 of 2000 (EM Act 2000). The legal regime of the Act recognised the importance of public participation. The Preamble to the EM Act 2000 identifies the intended objectives of the legislation. The preamble exemplifies that public concerns are crucial to the development of an effective legal regime for the protection of the environment. Text throughout the Act continues to stress the general principles expressed in the preamble. Section 4 of the Act emphasises the public role in terms of awareness and participation, while Section 16 assigns the EMA the role of developing public awareness and public participation.

                                                              60

Bran., Adam. “Public Participation Provisions Need Not Contribute To Environmental Injustice” Temp. Pol. & Civ. Rts. L. Rev5 (Spring 1996):150 61 Jeffery, Michael. “Intervenor Funding as the Key to Citizen Participation in Environmental Decision Making: Putting People Back into the Picture.” Ariz. J. Int'l & Comp. Law 19(2002):645 62 Environmental Management Act No. 3 of 1995. This Act was replaced by the Environmental Management Act No. 3 of 2000 (“EM Act 2000”).  

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The following sections demonstrate how the environmental legal regime that emerged from the EM Act 2000 has captured the intent of public participation. Written Public Comment Period There are two issues associated with the written public comment period, which are the duration of the period and the documents that are made available for public comment. With respect to the duration of the written public comment period, the EM Act 2000 establishes a minimum period of 30 days but sets no outer limit for such a period. Given the fact that many of the projects in Trinidad and Tobago are energy based, it is difficult to have large and complex environmental impact assessments (EIAs) reviewed within 30 days. The issue of the duration of the written public comment period was well represented in the case of Fishermen and Friends of the Sea v. The Environment Management Authority and BP Trinidad and Tobago LLC.

63

(The bpTT case) This case involved a decision by British

Petroleum Trinidad and Tobago (bpTT) to expand its deliverability and transportation share in the ALNG liquefied natural gas project. Due to the perceived adverse environmental impacts on the lives of many residents of Trinidad and Tobago, the application for a CEC by bpTT was opposed by Fishermen and Friends of the Sea (FFOS), a local NGO. It was argued on behalf of FFOS that due to the complex nature of the proposed activities and the voluminous documents, which the public was required to peruse in order to comment properly on the EIAs, the EMA owed a duty to the public to provide a longer period for public comment than the statutory minimum period of 30 days. FFOS was not successful in their judicial review application, as the matter was filed outside the date for submitting such an application as stated by Lord Walker of Gestingthorpe.64 The second issue of the written public comment period is the availability of all relevant information to allow for meaningful public participation. It is now accepted to be a clear duty on the part of a decision maker to provide sufficient information to allow for meaningful public participation.

                                                              63

Fishermen and Friends of the Sea v. The Environmental Management Authority and BP Trinidad and Tobago LLC, Privy Council Appeal No. 30 of 2004 . 64 Privy Council Appeal No. 30 of 2004 . 

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Public Hearing The most substantial facet of the public participation procedure is the option of the EMA under Section 28(3) of the EM Act 2000, to hold a public hearing where there is sufficient public interest, a power which EMA has only intermittently utilized. In the bpTT case there was failure to hold a public hearing, which constituted one of the grounds for judicial review. This was not addressed due to the dismissal of the application on the grounds of undue delay and extensive prejudice to third parties. The issue of the public hearing has also been questioned in the case of Fishermen and Friends of the Sea (FFOS) v. The Environmental Management Authority and Atlantic LNG Company of Trinidad and Tobago (The ALNG case).65 It involved an appeal over the decision of the EMA to permit a CEC to ALNG for the construction and operation of a Fourth Train for the liquefaction of natural gas,66 the EMA held a public hearing pursuant to Section 28(3) of the EM Act 2000 to receive verbal comments. However, the EMA took the position that this section only required them to host a single meeting and hear the views of the public and that there was no obligation to have any further meetings to discuss with the public how their views were addressed by the EMA. Justice Stollmeyer in the ALNG Matter agreed with the views of the EMA. However, environmental democracy based on public participation and effective public consultation cannot be fulfilled with a single meeting by an authority without engaging the public in a meaningful debate to demonstrate that their views were considered and addressed in any final decision. Factors Hindering Public Participation in Environmental Decision Making: The Role of the Multinational Corporations Trinidad and Tobago has attracted the economic ventures of many multinational corporations (MNCs) largely based on prospects in the energy industry. Their headquarters are often located in the developed world, which consistently purports well-established environmental policies, high standards of ethics and environmental behaviour. However, although these policies may be                                                               65

H.C.A. Cv. 2148 of 2003. Fishermen and Friends of the Sea v. The Environmental Management Authority and Altantic LNG Company of Trinidad and Tobago, H.C.A. Cv. 2148 of 2003.  66

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of written distinction, these corporations’ actions at times have contributed to the weakening environmental values of Trinidad and Tobago.The issues raised in the Courts of Trinidad and Tobago and in the public domain involving the unethical activity of such corporations and large businesses have placed enormous pressure on the EMA.67 In the ALNG case, the applicant for judicial review raised the issue of unfair political action. It referred to a letter from the Chief Executive Officer of ALNG to the foremost Government energy expert in Trinidad and Tobago, who at that time was the Chairman of the Cabinetappointed Standing Committee on Energy. It was argued on behalf of FFOS that this letter was an attempt by ALNG to have the EMA’s approval without thorough consideration on its environmental implications. However, Justice Stollmeyer stated that it lacked evidence to suggest that the EMA did anything on behalf of ALNG with respect to this letter. The Governing Structure of the Environmental Management Authority The governing body of the EMA is tarnished by suspicion of being undermined by corruption and political manipulation. It is managed by a Board of Directors appointed by the President pursuant to Section 6(1) of the EM Act 2000. The vote for the appointment of a President has always gone in favour of the nominee of the political party with the majority of members in Parliament. Conventionally the President’s statutory power, such as on appointing a Board of Directors, is favourable towards the advice of the Cabinet. A next aspect of the EM Act 2000 that challenges the independence of the EMA is the power of the Minister under Section 5, over the actions of the EMA. The conclusive power of the Minister over its actions creates the presumption that the EMA is at the mercy of other bodies and cannot impartially address, and may even contend, public interest. The State as a Key Economic Participant In Trinidad and Tobago, the State acts as both a major facilitator and regulator of economic                                                               67

Loutoo, Jada “ EMA cries pressure from big business,” Trinidad Guardian, May 31st, 2003. Daily Newspaper.

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growth. By seeking approval through State agencies such as the EMA, the State may pursue economically favourable activities that face social opposition. Therefore it becomes a contentious issue in the public sphere and the perceived transparency of the governing body is compromised. An example of this can be found in the decision of the Trinidad and Tobago Government to construct and operate an aluminium smelter, Alutrint Limited. This was being done by a joint venture between the State-owned National Energy Corporation (NEC) and Sural, a Venezuelan aluminium entity. The terms and conditions of the Certificate of Environmental Clearance (CEC) arose in the matter of People United Respecting the Environment (‘Pure’) v. The Environmental Management Authority, Alutrint Limited and the Attorney General.68 The Government of the Republic of Trinidad and Tobago approved the establishment of an aluminium complex capable of producing 125,000 metric tonnes per annum; it is to be sited on approximately 100 hectares of land at Main Site North, Union Industrial Estate in La Brea.69 The establishment of the proposed aluminium complex requires the applicant to apply for a CEC and this was received on April 02, 2007. Judge Mira Deen-Armorer stated this Court is obligated to implement the caveat of Lord Walker in FFOS v. EMA70 that the Court should approach the doctrine of substantial compliance with caution, when public consultations are affected. The State as Facilitator of Economic Activities The Government usually lays out its economic and social proposal and identifies the projects on which it is basing its developmental prospects. Since it is a direct economic player, it is difficult to be prevented by a State agency in its goal to promote economic activities. Presently in Trinidad and Tobago heavy industrialisation is being promoted in light of the perceived abundance of natural gas as a source of energy, which encourages high levels of international trade. An example has been the promotion by the Government to construct a USD$1.2 billion steel plant by the Mumbai-based Essar group, in the face of strong opposition by environmentalists and communities neighbouring its proposed location between California and Claxton Bay.                                                               68

HC Deb 2 April 2007 Obtained from the Judgement of Justice Mira Deen-Armorer J. 70 Fishermen and Friends of the Sea v. The Environmental Management Authority and BP Trinidad and Tobago LLC, Privy Council Appeal No. 30 of 2004 .  69

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The Challenges Facing Society Funding The main challenge is the availability of funding to oppose decisions both through the public education and mobilization process and in the Courts. Non-Governmental Organizations are faced with the constant problems involving insufficient funding and lack of public awareness. Unfortunately, satisfying this need through corporate funding may lead to weakened ability of the NGO to pursue environmental advocacy fearlessly. Essentially, environmental group membership still tends to be limited, especially for groups willing to challenge the State through litigation. ‘Smelta Karavan’, an NGO formed to oppose the construction of aluminium smelters in Trinidad and Tobago, has its mandate compelled by a few individuals. This outlook in Trinidad and Tobago is normative, since there is a general lack of involvement in environmental issues. This translates into an unwillingness to contribute financially to public interest environmental litigation. While in developed countries groups such as Friends of the Earth and Greenpeace are often in a position to attract continuous funding at all levels of society, this is not the case in the Trinidad and Tobago. Limited Technical Expertise In order for NGOs to achieve substantial public participation, their ability to effectively communicate their standpoint and rationalization processes to the wider public depends on their attainment of fundamental resources such as technical and scientific information. This serves as justification for their motives, however, such resources are not in abundance and those with the technical skills are not readily obtained. One promising development in the drive to obtain scientific and technical assistance has been the work of Environmental Law Alliance Worldwide. This group has started to provide scientific and technical assistance to aid the challenges by civil society through public interest litigation to question approvals granted by the EMA. In the case of Maxine Walters and the Trinidad and Tobago Rights Association v The Environmental Management Authority, Alutrint Limited and the Attorney General.71 Staff Scientist Mark Chernaik of the NGO submitted a written expert affidavit on behalf of the claimants in this matter.                                                               71

HCA 2272 of 2007.

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Lack of Concern on Environmental Security Trinidad and Tobago as a developing nation seeking developed world status by 2020, has been propelled by the revenue obtained through international trade in the energy sector. This foreign direct investment has contributed to a pace of development that has left sustainability measures ample room for progress. The issue therefore becomes one of sustainable development and to what extent are the voices of the public are heard in determining the level of sustainability. Societal concerns and issues raised about these international corporations are left unaddressed or measures are too lengthy for immediate resolution. One such example is seen in The Southwest Tobago Fishing Association Ltd. v. The A.G of Trinidad & Tobago; Tobago House of Assembly; The Environmental Management Authority and Petroleum Geo-Services Limited,72 the Claimant sought an injunction against Petroleum Geo-Service Ltd, restraining it from the conduct of seismic surveys in traditional fishing grounds. The Claimant’s case is based on a breach by PGS Ltd. of a condition in their CEC; the failure of the Authority to properly monitor the licensed activities of PGS Ltd. and the negligence of the State and the THA in allowing the licensing of such activity.

Enabling Judicial Scrutiny of Environmental Decisions: Public Interest Litigation

The ability to engage in judicial contest is a strategy to ensure that environmental decisionmaking properly considers issues that are important to the public. A necessary element in environmental democracy is the ability to engage in judicial contest since challenging the State is often undertaken by NGOs on behalf of members of the public. The origin of public interest litigation can be found in Section 5 of the Judicial Review Act, No. 60 of 2000 (JR Act). The JR Act, by virtue of Section 5(2) b, has been ratified so far in three environmental matters by civil society, namely the bpTT case, the ALNG case and the ALUTRINT case. Public interest litigation has not been extensively used since the passage of the JR Act, and perhaps it has become disreputable for its use in challenging the environmental decision-making process.                                                               72

HC Deb 29 July 2008

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The Judicial Review (Amendment) Bill 2005 was introduced by the Government in Parliament in 2005 with the express aim of limiting the categories of persons who might apply for judicial review by repealing Section 5(2)(b) of the JR Act73, which vests jurisdiction in the Court to deal with public interest litigation. Due to the delaying of Parliament in September 2005, the Bill effectively lapsed. However, during the time between the implementing of the Bill in Parliament and when it lapsed, a challenge was launched by an NGO attacking the decision of the Government to remove public interest litigation. It was embodied in the case of Trinidad and Tobago Civil Rights Association v. Attorney General of Trinidad and Tobago,74 The NGO won their challenge, but the decision of Justice Gobin was reversed at the level of the Court of Appeal in the case of the Attorney General of Trinidad and Tobago v. Trinidad and Tobago Civil Rights Association,75 The decision of the Court of Appeal suggested that the Court seemed inclined to adopt the position that while the Bill may have the effect of limiting the statutory right to public interest litigation. This right existed independent of the Bill in the judicial practice of Trinidad and Tobago. Conclusion Trinidad and Tobago is at a junction between a high level of economic expansion through international trade and the slowly emerging environmental protection mechanisms. These mechanisms are in increasing demand out of public necessity and desire for sustainability and environmental democracy as a means to guard against potential resultant dangers from these trade agreements with MNCs. The establishment of the EMA was derived through this need, and is instrumental in promoting public awareness and participation in factors that affect the environment. It appears that the EMA, however, is following its directives in a manner that suggests a restrained and minimalist approach to promoting public participation. What is noted is that the State is feasibly the stimulus behind such an approach, and the EMA’s existence as a State body may directly counter the economic relationships the government seeks to establish with companies such as bpTT, ALNG and Alutrint. The State’s fundamental control of both economic and environmental bodies presents a                                                               73

 The Judicial Review HCA No.1070 of 2005. 75 C.A.Civ. 149/2005.  74

Act, No. 60 of 2000 

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predicament. It is left to be demanded that the environmental decision-making processes should be constructed and aimed towards public participation, and by the indispensable right of the citizens to gain the ability to directly contribute in decisions that will ultimately affect their quality and standard of living. However, in terms of our judicial, technological and cultural development, this movement towards such collective power is not yet realized, and presents a much sordid perspective upon the heavily publicized ideological devotion to democracy that is the bedrock of our society. BIBLIOGRAPHY Table of cases Attorney General of Trinidad and Tobago v. Trinidad and Tobago Civil Rights Association, C.A.Civ. 149/2005. Fishermen and Friends of the Sea v. The Environmental Management Authority and Altantic LNG Company of Trinidad and Tobago, H.C.A. Cv. 2148 of 2003. Fishermen and Friends of the Sea v. The Environmental Management Authority and BP Trinidad and Tobago LLC, Privy Council Appeal No. 30 of 2004 . Maxine Walters and the Trinidad and Tobago Rights Association v The Environmental Management Authority, Alutrint Limited and the Attorney General HCA 2272 of 2007. People United Respecting the Environment (‘Pure’) v. The Environmental Management Authority, Alutrint Limited and the Attorney General HC Deb 2 April 2007 The Southwest Tobago Fishing Association Ltd. v. The A.G of Trinidad & Tobago; Tobago House of Assembly; The Environmental Management Authority and Petroleum Geo-Services Limited HC Deb 29 July 2008 Trinidad and Tobago Civil Rights Association v. Attorney General of Trinidad and Tobago, HCA No.1070 of 2005.

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Table of legislation Environmental Management Act No. 3 of 1995 Environmental Management Act No. 3 of 2000. Judicial Review Act, No. 60 of 2000 Books Antoine R, Commonwealth Caribbean Law and Legal Systems (2nd, Routledge-Cavendish, New York 2008)

Dalip A and Singh R, A Critical Evaluation of Administrative Civil Assessments Under the Environment Management Act, 2000: A Comparison with Environmental Economies Methodologies (1st, University of the West Indies, Saint Augustine, Trinidad and Tobago, 2004) Keefe T, Latin American and Caribbean trade agreements keys to a prosperous community of the Americas. (1st, Leiden M, Nijhoff, 2009) Ramlogan R and Persadie N, Developing environmental law and policy in Trinidad and Tobago (1st, Lexicon Trinidad, Trinidad and Tobago 2007) Ramlogan R and Persadie N, Commonwealth Caribbean Business Law (2nd, RoutledgeCavendish, New York 2010) Ramlogan R, Judicial Review in Commonwealth Caribbean (1st, Routledge-Cavendish, New York 2007) Yu H-L, Commercial arbitration: the Scottish and international perspectives (1st,Dundee University Press 2010)

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Journal article Environmental Agreements: A Study of the Global Treaty on Persistent Organic Pollutants (POPs). UCLA Journal of Environmental Law and Policy 19. Jones E. (1997b, Fall). Risky Assessments: Uncertainty in Science and the Human Dimensions of Environmental Decision making. William and Mary Environmental Law and Policy Review. Lallas, P. (2000). The Role of Process and Participation in the Development of Effective International . Quash, C. (2003, June 07). Atlantic LNG’s Train Four must meet EMA standards. Trinidad Express. Ramoutar, P. (2008). No stopping $1.2 bn Essar steel unit: Trinidad PM. India News. Ramlogan, Rajendra, (2010) Using the Law to Achieve Environmental Democracy and Sustainable Development: an Elusive Dream for Trinidad and Tobago. Electronic Green Journal. 1(30) Tilleman, W. (1995) Participation in the Environmental Impact Assessment Process: A Comparative Study of Impact Assessment in Canada, the United States and the European Community. Columbia Journal of Transnational Law Association Inc. 33 MPhil thesis Natalie Persadie, ‘Environmental protection and economic development: prospects for the building of an international environmental legal regime’, (Master of Philosophy, University of the West Indies 2008)

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Is Legislative intervention the solution to the controversy surrounding the Great Peace decision, on the law of common mistake?

By Grace Lucy-Anna Bhagwandeen

INTRODUCTION Mistake in contract law involves three distinct categories, common mistake, unilateral mistake and mutual mistake. They are each defined differently, and have diverse effects on the subsistence of a contract, as to the circumstances in which the contract can be declared void or voidable. A common mistake is defined as a situation in which both parties make the same mistake as to a fundamental element in the contract. A mutual mistake occurs where both parties misunderstand each otherâ&#x20AC;&#x2122;s intentions and are at cross-purposes. A unilateral mistake occurs when one party is mistaken in the contract. However, the law of common mistake has proven to be one of the most controversial and intricate premises of mistake. This is due to the myriad of conflicting precedent that has evolved in this area, with differing principles of law and equity, providing an excellent area of analysis and debate. This paper seeks to achieve the following objectives. First, to identify the settled areas of the law on common mistake. Second to analyse the unsettled and controversial area of the law on common mistake prior to the Great Peace decision. Third, to demonstrate how the Great Peace decision exacerbated this controversy. Fourth to criticize the present law of common mistake in the various jurisdictions. Fifth, to postulate the theory that legislative intervention is the answer to settling the controversy surrounding the Great Peace decision, on the law of common mistake, specifically with reference to the Contractual Mistakes Act of New Zealand 1977. The law of common mistake was governed by both common law and equity, each administering diverse rules and remedies, and accordingly a series of precedent has developed to support both theories. There are three categories of common mistake including, common mistake as to the existence of the subject matter of the agreement, common mistake as to the possibility of performing the contract, and common mistake as to the quality of the contract. The law was settled in the first two categories of common mistake, however the third category presented 59 


difficulties of interpretation, with respect to principles of law and equity. Thus, common mistake as to the quality of contract led to the controversy surrounding common mistake as will be explored in this paper. At the common law, a common mistake was one which must have been operative, to have the contract declared as void. This was the legal principle arising from the House of Lord’s decision in the case of Bell v Lever Bros. Ltd.76As Lord Atkin stated, “…a mistake will not affect assent unless it is the mistake of both parties and is as to the existence of some quality which makes the thing without the quality essentially different (emphasis added) from the thing as it was believed to be.” Conversely, the Court of Appeal in the case of Solle v Butcher77 developed the principle that if the mistake was not fundamental enough to have the contract declared as void at law, then equity would provide a route whereby the contract could be declared as voidable. As Lord Denning put it in the case of Solle, “A contract is also liable in equity to be set aside if the parties were under a common misapprehension either as to the facts or as to their relative and respective rights, provided that the misapprehension was fundamental, (emphasis added) and that the party seeking to set it aside was not himself at fault.” Thus, in essence even if the mistake was not operative at law to void the contract, the mistake may still be regarded as sufficient to declare the contract as voidable by the court of equity. Naturally, the result of this dichotomy caused the law of common mistake to be in a state of flux, since there was developing a multitude of ‘selective jurisprudence’ on the law of common mistake, where the courts were choosing to follow either Bell or Solle and reject the other. Consequently, the Court of Appeal judgement in the case of Great Peace Shipping Ltd. v Tsalvris Salvage (International) Ltd78.attempted to resolve these ambiguities. This case concerned a common mistake made by the parties to the contract, and the court recognising the difficulties posed by the precedent on common mistake, decided to make a bold and somewhat                                                               76

 [1932] AC 161   [1950] 1 KB 671  78  [2002] EWCA Civ 1407; [2003] QB 679  77

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dangerous move, by setting out a list of guidelines to determine when a common mistake would be regarded as fundamental, to essentially cause a contract to be void at law. One can commend the judgment in Great Peace for attempting to resolve the obscurities in the law of common mistake. But, the reality is that Great Peace in an attempt to elucidate the law may have gone a few steps too far. It created this very high threshold, for individuals to make a successful claim, in having a contract declared void based on common mistake, and ultimately caused even more complexities in the law. Since the judgment in Great Peace, there has developed a myriad of precedent which is now applying the Great Peace principles to a variety of contractual situations, ultimately producing injustices to innocent parties, and third parties to a contract. Consequently, these parties are usually unable to satisfy the extreme test, and the contract stands despite the fact that it may be unfair to them. Pragmatically speaking, if one respects Great Peace as the law governing common mistake, then it is almost impossible to seek to have a contract declared void. The problem exacerbates when the fact is, that once a court applies the Great Peace test, it automatically rejects the equitable doctrine in Solle, because the effect of the Great Peace decision was that it overruled Solle. Consequently the injustices created are immense, with respect to innocent parties, as discussed above, if Great Peace is applied. Furthermore, if Solle is not applied then the parties also have no equitable remedy to rely on. The law on common mistake is even more complex when one observes the premise that Solle v Butcher was an English Court of Appeal case, while the Great Peace judgment was also decided by that court, thus the reality is that Great Peace cannot technically overrule Solle, although the reality is that Great Peace has overruled Solle. Consequently, the various jurisdictions are involved in what one may regard as ‘selective jurisprudence,’ where some are choosing to follow Great Peace and reject Solle and vice versa. The reality is that ‘selective jurisprudence’ is not the answer, because neither Great Peace, nor Solle is an adequate reflection of the law on common mistake. Among other objectives, the primary objective of this paper is to postulate that the answer to all of these controversies lie in legislative intervention on the law of common mistake.

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SETTLED AREA OF THE LAW ON COMMON MISTAKE

There are three categories of common mistake at law: (a) Common mistake as to the existence of the subject matter of the agreement (b) Common mistake as to the possibility of performing the contract (c) Common mistake as to the quality of the contract The cases have shown that the courts are more willing to label a mistake as ‘fundamental,’ and consequently declare the contract as void, when the mistake is related to: (a) the existence of the subject matter of the agreement; and (b) the possibility of performing the contract. (a) Common mistake as to the existence of the subject matter of the agreement These scenarios are usually called cases of res extincta, which means that if it is unknown to the parties that the specific subject matter of the agreement is non-existent, then no contract arises. This was the case in Courtier v Hastie79, where the contract was for the sale of cargo from Salonica to the United Kingdom. However, unknown to the parties, the cargo’s goods had become fermented and sold to another buyer on route. It was held that the original buyer was not liable for the price of the cargo. This was due to the fact that the common mistake was seen as fundamental, since it was as to the very nature of the agreement and the contract was considered void at law. (b) Common mistake as to the possibility of performing the contract If the parties to a contract make a shared mistake as to the possibility of performing the contract, then this usually suffices to declare a contract as void. It may result from a physical, legal or commercial impossibility. A physical impossibility was seen in Sheikh Bros. v Oschner 80 where the land being the subject matter of the agreement was physically unable to yield the amount of produce that both parties mistakenly expected it to yield, and thus the contract was held to be void. A legal impossibility was found in the case of Cooper v Phibbs81 where one party (A) agreed to take a lease of a fishery from the other party (B), although unknown to both parties, it                                                               79

 (1856) 5 HL Cas 673, 10 ER 1065   [1957] AC 136  81  (1867) LR 2 HL 149  80

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already belonged to (A) himself. Thus this contract was legally impossible and the contract was void. There may also be the case of commercial impossibility, which was demonstrated in the case of Griffith v Brymer82, where one party hired a room from another party to view a coronation event on a specific date, but the event was cancelled. Thus although the performance of the contract was physically and legally possible, the cancellation of the event undermined the commercial object of the contract, thus the contract was found to be void, based on a fundamental common mistake. Thus, it is observed that in the majority of cases which surround a common mistake about (a) the existence of the subject matter of the agreement, or (b) a mistake related to the possibility of performing the contract, that the law is quite settled in this area, since the result is usually that the contract is void due to a fundamental mistake. It is important to note this distinction because, when one shifts one’s attention to a common mistake as to the quality of the contract, one immediately recognizes the instability of the law in this area. The principal decisions here include cases such as Bell v Lever Bros and Solle v Butcher possessing contradictory theories to the law of common mistake. These cases prove the point that the law on common mistake had already been unsettled and controversial. The situation exacerbates in Great Peace, where in an attempt to clarify the law, the judgement in fact obscures the law even more, and intensifies the controversy in the law of common mistake. One might argue that Great Peace even diminished the law of common mistake to a nullity.

UNSETTLED AREA OF THE LAW ON COMMON MISTAKE PRIOR TO GREAT PEACE

(c) Common mistake as to the quality of the contract What does one mean by a common mistake as to the quality of a contract? Suppose A sells a vase to B, both believing it to be an antique, but subsequently they both discover that it was actually an ordinary vase. This is a common mistake as to the quality of the contract. The question is whether B can claim that the mistake is fundamental enough to have the contract                                                               82

 (1903) 19 TLR 434 

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declared void on this ground. One can immediately discern the level of difficulty in this category of common mistake as compared to the categories spoken of above, because the ‘quality’ of a contract is open to various interpretations. This is the very dilemma that led to the exacerbation of the controversy in Great Peace. However, before examining Great Peace, one must regard the two conflicting decisions on common mistake as to the ‘quality’ of a contract that led to the climax in Great Peace. These are the cases of Bell v Lever Brothers which postulated the common law position on common mistake, and Solle v Butcher which articulated the equitable position on common mistake. In Bell v Lever Bros. the defendants who were employees of the plaintiffs, were engaged in activities that would have amounted to a breach of their contract. The plaintiffs unaware of this breach, had reached an agreement for compensation with the defendants because of having to terminate their employment at an earlier date. The agreement was to pay the defendants £50,000. The plaintiffs then later found out that the defendants were in breach of their contract and so argued that they were not entitled to the compensation. Thus the plaintiffs sought to have the agreement declared void for common mistake. The case was appealed to the House of Lords, which refused to declare the contract void based on a common mistake as to the quality of the contract. As Lord Atkin stated in his judgement83, “…mistake will not affect assent unless it is the mistake of both parties and is as to the existence of some quality which makes the thing without the quality essentially different from the thing as it was believed to be…” This formulation of the law is quite vague, and does not give much guidance as to when a mistake as to the quality of the contract would be regarded as fundamental to have a contract declared as void. Lord Atkin’s principle is that the mistake has to be to the extent of making the subject matter of the agreement essentially different from what it was, due to the lack of that quality that is being debated. The issue in that postulation, inter alia, is the difficulty in determining what is meant by ‘essentially different.’ This is a very subjective test and can vary with every judge on every given day. Thus this principle offered no assistance to the law on common mistake.                                                               83

 [1932] AC 161, p 218 

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One writer commenting on this case stated, “the plaintiffs had obtained exactly what they had bargained for, that is, the release of the contract with the defendant. The fact that the plaintiffs could have achieved the same result without paying compensation by relying on the defendant’s earlier conduct was immaterial.”84 While the logic of Richard Stone’s argument is valid in this respect, the law guiding this decision in Bell, especially with regards to Lord Atkin’s judgement was quite unclear, immensely subjective and offers no clear guidance on how to approach this area of law in future cases. However, the decision in Bell can be contrasted with the decision in Associated Japanese Bank Ltd. v Credit du Nord SA85. In this case, the plaintiff bank bought four machines from the defendant for £1,021,000. The bank then leased the machines back to the defendant, who had obligations to make payments to the bank. These obligations were guaranteed by the defendant bank. The defendant was unable to keep up the payments, and the plaintiff sought to enforce the guarantee against the plaintiff. Subsequently it was realized that the machines never existed. Steyn J. stated that “For both parties, the guarantee of obligations under a lease with nonexistent machines was essentially different from a guarantee of a lease with four machines which both parties at the time of the contract believed it to exist.”86Thus, in this case, the court found that a mistake as to the quality of the contract was fundamental enough to cause the contract to be void at common law. Thus, the common law was approaching the idea of a common mistake as to the quality of the contract in a conflicting manner. In Bell, the mistake in the contract was one which, as some would argue made the contract ‘essentially different’ from what the parties had intended it to be. However it was in fact viewed by the court as an unfortunate situation that didn’t change the substance of the contract and thus they concluded that the contract should be valid. The courts made it clear that their job did not permit them to get involved into business transactions and implying terms into a contract that the parties had not intended to be inserted into their contracts. The court explained that they were not there to give business efficacy to contractual agreements. On the contrary when we look at Associated Japanese Bank, (one of the exceptional cases in the area of mistake as to quality), the courts approached the same theory from a different angle, and                                                               84

th

 Richard Stone, The Modern Law Of Contract (8 edn, Routledge 2009), pg 390   [1988] 3 All ER 902  86  Ibid, p 913  85

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decided that the mistake as to the quality of the contract was sufficient to cause the contract to be void. In Bell, the courts took a hands-off approach when it came to a mistake as to the quality of the contract, and stressed on the proposition of not wanting to get involved in a parties bargaining relationship, stating that even if something was unfair to the parties, it was not the courts place to step in, but in Associated Japanese Bank, the courts were seen to take a hands-on approach and in fact stepped in to relieve the injustices of a poor bargain, exactly what they vowed not to do in Bell. The dilemma further worsens, when one examines the fact that equity had established different principles concerning common mistake, especially with regards to a common mistake as to the quality of a contract. As mentioned before, prior to examining Great Peace, one must regard the two conflicting decisions that led to the climax in Great Peace. These are the cases of Bell v Lever Brothers which postulated the common law position on common mistake which has already been discussed. We will now turn our attention to Solle v Butcher which articulated the equitable position on common mistake. In Solle v Butcher, A had let a flat to X at £250 per year. Both parties made a common mistake that the flat, which was reconstructed was in essence a new flat, and that it was no longer controlled by the Rent Restriction Acts. But the reality was that the maximum rent allowed was really only £140. The tenant, X, after renting the premises for two years, attempted to recover the rent he overpaid and the landlord claimed rescission of the contract based on common mistake. Lord Denning in his judgement articulated the following rule that the courts of equity would use in deciding whether to declare a contract as voidable: “…A contract is also liable in equity to be set aside if the parties were under a common misapprehension either as to facts or as to their relative and respective rights, provided that the misapprehension was fundamental and that the party seeking to set it aside was not himself at fault.”87 It was held by the majority Denning LJ and Bucknill LJ that the contract in this case was voidable, and the lease should be set aside on the ground that there was a common mistake. From                                                               87

 Supra at f2 

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Lord Denning’s judgment, the following points can be deduced. First, the primary reason for the development of these equitable rules was to relieve the injustices caused by the common law, in cases where there was a common mistake present, but it was not sufficiently fundamental to have declared the contract as void. Secondly, a contract will be declared as voidable if the parties were under a common misapprehension either as to facts or as to their respective rights, as long as it is satisfied that the misapprehension was fundamental and that the party seeking to set it aside was not at fault. Thirdly, the courts will only apply this principle provided that it does not cause injustice to third parties in the contract. The case of Bell applied the common law test which was very difficult to satisfy and somewhat callous to parties to a contract. In this case, the courts took a hands-off approach to the idea of common mistake as to the quality of a contract, stressing on the importance of maintaining the commercial relationship between the parties in achieving exactly what they bargained for, despite its unfairness to the parties. On the other hand, in Solle, the equitable doctrine was being developed by Denning LJ, attempting to relieve the injustices of the common law, and setting out some guidelines as to when equity can declare a contract voidable. In Solle, it is observed that the courts are taking a more hands-on approach to commercial transactions between parties, in direct contradiction to the common law approach. While one can commend the courts of equity for seeking to afford some protection to innocent parties in a contract, the reality is that the law on common mistake has become even more complex, now with the existence of two contradictory areas of law, each applying different principles based on the facts of every given case. What is even more puzzling is the fact that both the common law and the equitable tests include this common feature: “the mistake/misapprehension must be fundamental,” and we’re still in the dark as to what exactly is meant by ‘fundamental.’ Thus, the law of common mistake was clearly unsettled as is seen from the conflicting cases of Bell and Solle. The issue is, that Great Peace in an attempt to end to this controversy in common mistake between Bell and Solle, made matters even worse, and ultimately exacerbated the controversy. The decision of Great Peace Shipping v Tsalviris Ltd. will now be examined to illustrate this point.

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CONTROVERSY IN COMMON MISTAKE EXACERBATED IN GREAT PEACE

In the case of Great Peace Shipping v Tsalviris Ltd. T had entered into a contract with Great Peace to salvage it from distress at sea. At the time of the contract, both parties thought that Great Peace was actually much closer to the salvage site than the distance it actually was. Thus, when T discovered this, they decided to hire another ship and they sought to cancel the contract with Great Peace on the basis of common mistake, and pay nothing to them, in respect of hire charges. The Court Of Appeal held that the mistake was not sufficiently fundamental to render the contract void at common law. The court took the view that the contract was still possible to be performed, since Great Peace would have still been able to carry out the contract, although later than T expected. The court went at length to describe the controversy surrounding common mistake over the years, and paid particular attention to the contributions of Bell and Solle to this area of jurisprudence. Lord Atkin’s formulation of declaring a contract void at law in the case of Bell, was seen to be equally confusing as Lord Denning’s formulation of when to declare a contract as voidable in equity, in the case of Solle. Both tests were said to have left out the precise parameters of what is meant by ‘fundamental.’ The court believed that Solle did not supplement the common law in Bell, but in fact contradicted Bell. Ultimately, the court came to the conclusion in Great Peace, that Solle was wrongly decided and had in fact caused major complexities in the law of common mistake. 88 The court accordingly made a bold move by stating the following requirements for a common mistake to be fundamental. “(a) There must be a common assumption as to the existence of a state of affairs, (b) there must be no warranty by either party that that state of affairs exist, (c) the non-existence of the state of affairs must not be attributable to the fault of either party, (d) the non-existence of the state of affairs must render performance of the contract impossible, (e) the state of affairs may be the

                                                              88

[2002] EWCA Civ 1407; [2002] 4 All ER 689, para 157-160 

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existence, or a vital attribute, of the consideration to be provided or the circumstance which must subsist if performance of the contractual adventure is to be possible.”89 Great Peace can be commended for bringing about a measure of certainty in the law of common mistake, and it has been proposed by academic writers90 that its decision has overruled Solle, and thus the doctrine of equity in this area of law is essentially now diminished. The irony is that Great Peace in an attempt to clarify the law on common mistake, in fact went too far in establishing these list of guidelines which have proven to be extremely difficult, even impossible to satisfy, and this has potentially eliminated the doctrine of common mistake and brought it to a vanishing point. There were several cases that applied the test set out in Great Peace, following its decision and one can easily predict that those who were seeking to have the contract declared void due to a common mistake in these cases ultimately failed, because they could not satisfy the extreme test as set out in Great Peace. One such case was Kyle Bay Ltd (T/A Astons Nightclub) v Underwriters Subscribing Under Policy Number 019057/08/01.91 The facts of the case are as follows: When a nightclub was destroyed by fire, the appellants (nightclub owners) realized that they were privy to a different type of insurance cover than what they thought they had agreed to. They then agreed with the respondents to compromise the claim for £205,000, which was significantly less than they would have been entitled to had the original insurance scheme been in place. However, it was then discovered that the original insurance scheme was in fact in existence and the appellants were actually entitled to the larger sum of coverage than what they settled for in the compromise agreement. Thus, the both parties were under a common mistake as to the nature of this agreement. The court in keeping with the Great Peace decision held that the mistake in the present case was not fundamental to have the compromise agreement void. This was because since the settlement compromise remained capable of performance at all times, the subject matter was not made ‘essentially and radically different’ by the mistake.

                                                              89

Ibid, para 76 Ewan Mckendrick,Contract Law:Text, Cases and Materials (4thed, Oxford) pg. 544 91 [2007] EWCA Civ 57; [2007] All ER (D) 93 (Feb) 90

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Yet another case that applied the Great Peace test was the case of Brennan v Bolt Burden.92 In that case, “the claimant’s claim for damages for personal injury was issued on 7 June 2001, four months before the limitation period expired, and purportedly served on the defendants on 6 October. A judge held that it was served outside the limitation period on 8 October. Accordingly, the claimant agreed to compromise the claim. However, the case in which the decision on service had been made was subsequently overruled and the claimant successfully appealed the judge’s decision that the claim form had been served out of time. The defendants applied to stay the proceedings alleging that there was a binding contractual compromise. The claimant alleged that the compromise agreement was void for a common mistake of law…It was a question as to whether a mistake rendered the contract void and in any event, it was doubtful that a mistake of law would be capable of passing the applicable test in Great Peace, namely whether the mistake rendered the agreed performance (or contractual adventure) impossible. This was not a case of impossibility of performance since the compromise was at all times performable.”93

In both cases, it is observed that the parties to the contract who were claiming to have the contract declared void based on common mistake were unable to satisfy the extreme Great Peace test, and were forced to have to settle with unjust results. The fact is that it is extremely difficult to prove that a contract becomes impossible to perform due to a common mistake, thus after the Great Peace decision, the remedy of having a contract declared void became quite illusive. Furthermore, if the Great Peace guidelines are to be followed, it places a very heavy burden on contracting parties whereby they would be compelled to be involved in meticulous contract drafting to prevent these discrepancies of common mistake. The reality is that one cannot imagine every conceivable inconsistency in a contract, and what this test asserts is that if a common mistake occurs, and one cannot satisfy those guidelines, then one is denied the remedy of having the contract declared as void. This is very unreasonable and unfair to contracting parties since this can in turn discourage parties to become involved in contractual agreements, because of the pain-staking contract drafting process described above, and the fear of injustices caused to them if they are seeking to have a contract declared void, and are unable to satisfy the impracticable Great Peace test.                                                               92 93

[2004] EWCA Civ 1017; [2005] QB 303  Jill Poole, Casebook on Contract Law(10thed, Oxford)

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This view has been expounded by several academic writers including David Capper, who stated that “in giving primacy to certainty in English law, it places an extremely high premium on careful contractual planning by the parties and the insertion into contracts of clauses protecting parties against disappointed expectations…To take the position that if a party did not protect itself by a contractual term there can never be relief is to take a very high road. It requires a lot of faith in rules and is also unfair to contracting parties.”94 It is essential to also discuss the approach to common mistake in the various jurisdictions, and examine the controversies present which gives us a greater sense of why a solution is necessary, and helps us to understand why this solution should come from legislative intervention. Due to the conflicting authorities on common mistake in Bell, Solle, and Great Peace, and the fact that Great Peace and Solle were both English Court Of Appeal decisions, (thus Great Peace cannot technically overrule Solle, although the judgment in Great Peace made it quite clear that they overruled Solle); the result is that several jurisdictions are involved in a process of ‘selective jurisprudence.’ In other words, some jurisdictions are choosing which judgement to follow, and which one to disregard. The reality is that ‘selective jurisprudence’ is not the answer to the controversy, because neither Bell nor Great Peace, nor Solle is an adequate reflection of the law on common mistake. The solution lies in legislative intervention. David Capper outlined the following precedent in his article on common mistake95, which is relevant to our discussion. In Ireland, Costelo J. in the case of O’Neill v Ryan96 considered a contractual common mistake. The court addressed its mind as to whether the contract could be set aside in equity under the doctrine of Solle v. Butcher and held that there had not been any fundamental mistake either as to the facts or the parties’ rights. The judge applied the doctrine in Solle, without paying any regard to the doctrine in Bell. In Australia, the law on common mistake was expounded by academic writers as follows: “Therefore, not only is it clear that there is a jurisdiction in Australia to set aside a contract on the ground of common mistake, but also Solle v. Butcher can be taken as a vivid illustration of                                                               94

David Capper, ‘Common Mistake in Contract Law’ [2009] 457-473 Singapore Journal of Legal Studies<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1543639>accessed 16th September 2012 95 96

Ibid [1999] 1 I.R. 166 (H.C. I.r.)

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the jurisdiction… However, in order for the contract to be liable to be set aside there must be circumstances which render it unconscionable for the party who seeks to uphold the contract to have it enforced.”97 On the other hand, in the case of Australia Estates P/L v. Cairns City Council98, the Queensland Court Of Appeal in Australia stated that Solle was overruled and that Great Peace was persuasive. However, it is still doubtful as to which law Australia pays more regard to. The fact is that if Solle is solely followed with regards to common mistake, then the only remedy available to parties would be that their contract can be voidable based on Lord Denning’s formulation of the law. As discussed before, Lord Denning’s approach was very vague in not providing much guidance to a court in determining when they can set aside a contract based on common mistake. Thus, the courts will have a great amount of discretion in deciding when to exercise this jurisdiction, which will lead to great uncertainty in the law. Thus, it is unwise for Ireland and Australia to take this route in the law of common mistake. In the Canadian case of Miller Paving Ltd v. B. Gottardo Construction Ltd.99 Goudge J.A. expressed the view that Canada had adopted both the common law and equitable position on common mistake. However in delivering his judgement he stated the following in relation to The Great Peace doctrine: “Great Peace appears not yet to have been adopted in Canada and, in my view, there is good reason for not doing so. The loss of the flexibility needed to correct unjust results in widely diverse circumstances that would come from eliminating the equitable doctrine of common mistake would, I think, be a backward step.”100

Thus, it seems that Canada has rejected the Great Peace doctrine on common mistake because of its inflexibility in its results. This is understood due to the high test that Great Peace laid out to have a contract declared as void, which has proven almost impossible to satisfy. However, in                                                               97

JohnW. Carter & David John Harland, Contract Law in Australia, 4th ed. (Sydney: Butterworths, 2002) atpara. 1231. 98 [2005] Q.C.A. 328 99 (2007) 285 D.L.R. (4th) 568 (Ontario C.A.) 100 See Miller Paving, supra note 67 at para. 26.

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refusing to follow Great Peace, the controversy surrounding common mistake is still existent in Canada, since the court did not offer a solution to this controversy. The United States of America has implemented legislation101 to deal with the area of common mistake in contract law. Section 152(1) of the Restatement 2d of Contracts provides: “Where a mistake of both parties at the time a contract was made as to a basic assumption on which the contract was made has a material effect on the agreed exchange of performances, the contract is voidable by the adversely affected party unless he bears the risk of the mistake. . .”

The United States’ approach can be commended, in that it seeks to solve the problems caused by Belle and Solle, and has implemented legislation to deal with common mistake. The concept of the mistake being fundamental in Bell and Solle is replaced by the phrase “…has a material effect on the agreed exchange of performance.” Thus the mistake must substantially affect the intended performance by each party. This gives the courts a clearer understanding of when a mistake is ‘fundamental.’ The legislation goes further to say that if this is satisfied then the remedy is that the contract would be voidable by the affected party unless he bore the risk of the mistake. However a great injustice occurs to parties seeking relief, when their contract expressly or impliedly provides for a risk of mistake, and provides that they were deemed to have known and assumed the risk. These parties would have to bear the risk of the mistake whether they knew of it or not. Thus in this respect the legislation does not go far enough to protect parties to a contract. Thus, it is deduced that excluding the United States of America, the majority of jurisdictions are still perplexed about the area of common mistake and are finding it difficult to come to a fixed premise in this area of law. The practice of ‘selective jurisprudence’ is not the answer to the controversy on common mistake. ‘Selective jurisprudence’ is not enhancing the law, it is simply choosing one of the several deficient portrayals of the law and attempting to abide by it. There is a need for a solution to the Great Peace controversy and it lies in sound and well thought out legislative intervention.                                                               101

(1981) [Restatement 2d of Contracts]. 

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SOLUTION TO THE GREAT PEACE CONTROVERSY

Generally speaking, the common law has always been involved in controversies in its continual evolving precedent. In all areas of law, one can identify contradicting case law which not only bewilders the population as to what the law really is, but often causes unjust results to parties to a proceeding. In the majority of instances, parliament is usually compelled to step in to cure the deficiencies of the law, and bring the law back into a state of certainty. In the area of frustration in contract law, the common law was in a state of controversy causing a number of injustices in the law. The issue was to determine what was meant by the term ‘total failure of consideration,’ which the courts had different interpretations of in various cases.102 This was solved by the UK legislature intervening in passing the The Law Reform (Frustrated Contracts Act) 1943103 to put an end to the ongoing controversy and mitigate the injustices of the common law. It is interesting to note though that the same problem as in Solle and Bell repeats itself in the common law area of contract law. How does one define these vague tests such as what is ‘fundamental’ in Solle and Bell? Similarly how does one define ‘total failure of consideration’ in these frustration cases? Thus, it is deduced that where there are conflicting authorities in the common law, which is causing injustices to contracting parties, the solution lies in legislative intervention. There have been several other jurisdictions outside of the U.K. that have implemented legislation to mitigate the effects of the common law on common mistake. One such Act is the Contractual Mistakes Act 1977 of New Zealand,104 which provides the following with respect to common mistake. First, it is an all encompassing section that covers all type of mistakes: common, mutual and unilateral. Section 6 (1) (b) of the Act outlines some guidelines as to when the court can grant relief to the parties to a contract. It states that the mistake should have resulted: “(i) in a substantially unequal exchange of values; or                                                               102

[1904] 1 KB 493, [1942] 2 All ER 122 United Kingdom Law Reform Frustrated Contracts Act (1943) <http://www.legislation.gov.uk/ukpga/1943/40/pdfs/ukpga_19430040_en.pdf> accessed 15th October 2012  104 Contractual Mistakes Act 1977 Of New Zealand <http://www.legislation.govt.nz/act/public/1977/0054/latest/whole.html> accessed 1st November 2012  103

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(ii) in the conferment of a benefit, or in the imposition or inclusion of an obligation, which was, in all the circumstances, a benefit or obligation substantially disproportionate to the consideration therefore…” Thus, the mistake must have caused some sort of disequilibrium between the parties based on what each placed their priorities on, and it should have resulted in either bestowing a gain or a responsibility to the parties which they had not bargained for, or agreed upon, at the time that the contract came into existence. Also, it is important to note that either one of these two conditions can be satisfied, thus giving more leeway to the party seeking relief under the contract. Furthermore, it also makes provision for the protection of the party seeking relief under the contract. This is stated in section 6 (1) (c) to the effect that even if the contract expressly or impliedly provides for the risk of mistake, the party seeking relief under the contract is not bound to have known about the mistake and have assumed the risk. Some contracts may expressly or impliedly provide for the risk of a mistake to the effect that the parties would be deemed to have assumed the risk if it occurs, whether he/she is aware of the risk or not. This is unfair to contracting parties because in reality, how can one be deemed to have known and assume every risk that occurs in a contract, especially when a contract is between a large unscrupulous corporation and a poor, uninformed client. If this is the case, then parties seeking relief under a contract may hardly ever receive such relief. This is where the legislation has stepped in to relieve this injustice by providing that even if even if the contract expressly or impliedly provides for the risk of mistake, the party seeking relief under the contract is not bound to have known about the mistake and have assumed the risk. Also, the legislation in section 7(1), 7(3) outlines the remedies that the court can grant to parties seeking relief under a contract, provided that they satisfied the guidelines in section 6(1) (b). It states the following: (7)(1) “Where by virtue of the provisions of section 6 the court has power to grant relief to a party to a contract…

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(7)(3) The court shall have a discretion to make such order as it thinks just and in particular, but not in limitation, it may do 1 or more of the following things: (a) declare the contract to be valid and subsisting in whole or in part or for any particular purpose, (b) cancel the contract, (c) grant relief by way of variation of the contract, (d) grant relief by way of restitution or compensation.â&#x20AC;? Immediately, one can recognize the difference in the remedies afforded by legislation as compared to the common law, with respect to a contract possessing a common mistake. In common law, the case of Bell stipulated that a contract can either be held to be valid at law or void at law. With respect to equity, the case of Solle identified that the remedies can be carried further by a contract also being voidable in equity. Great Peace, however came into the picture and repositioned the law by stating that Solle was wrongly decided, and a contract can only be valid or void at law. Furthermore, they introduced the heavily criticized Great Peace test as to when a contract can be held to be void, which is almost impossible to satisfy. Thus, generally speaking if one were to follow the present English law on common mistake, and were to follow Great Peace, there would be practically one consequence for the contracting parties, which is that such a contract would more than likely be valid at law. However this legislation provides that the court has a discretion to grant one or more of the remedies listed above, which include remedies that were not available to parties in equity or common law for common mistake. Moreover, the granting of remedies are not limited to one as was in the case of the common law and equity. Thus through the legislation the courts have more flexibility with respect to remedies, and the parties have a greater chance of obtaining a suitable remedy that avails their case, as compared to law and equity where it was either that oneâ&#x20AC;&#x2122;s contract was void or voidable. Additionally, section 8(1) of the Act provides protection to innocent third parties in a transaction based on common mistake. It stipulates that if property has been disposed to an innocent third party to a contract, who was not a party to the contract between the other parties where the 76 


common mistake occurred, and provided that the third party was acting in good faith in the transaction, then the innocent third partyâ&#x20AC;&#x2122;s rights are not affected in any way by the contract or by the Act. This is a major development in the law of common mistake where third party rights were given very little protection. Additionally, the section goes further by confining this protection to third parties who acted in good faith in the transaction, thus the section cannot be used as an instrument of fraud by third parties. The New Zealand legislation can definitely be seen as a progressive re-statement of the law on common mistake, for the following reasons. Firstly, the requirements in the Act that parties have to satisfy the court to receive relief are more realistic than the Great Peace test, and to a large extent much easier for the parties to satisfy than the Great Peace test. For instance the Great Peace test states as one of its requirements that the non-existence of the state of affairs must render performance of the contract impossible. This is very difficult to satisfy because usually the contract can still be performed even with the presence of the mistake, thus once this is the case the parties are barred from receiving relief. This is unfair to contracting parties. In contrast, the Act has no such requirement. The parties simply have to prove that the mistake must have caused some sort of disequilibrium between them based on what each placed their priorities on, and it should have resulted in either placing a gain or a responsibility to the parties which they had not bargained for, or agreed upon, at the time that the contract came into existence. This is a fairly easy and realistic test to satisfy. Secondly, as stated before, parties seeking relief under a contract are protected in the sense that even if their contract expressly or impliedly provides for the assumption of the risk of a mistake, they are not obliged to accept such a risk, which is not covered by the common law. Thirdly, the remedies open to the parties under the legislation are far greater than those offered by the common law. Fourthly, the Act also confers protection on innocent third parties to a contract based on common mistake, which the common law is deficient in, and also regulates such protection.

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In a commentary by the Waikato Law Review of New Zealand105, the writer explained that the Contractual Mistakes Act of New Zealand 1977 stemmed from Parliamentary reports which had reviewed the effects of mistakes on contracts, and found many deficiencies in the law. The Report On The Effects Of Mistakes On Contracts 1976 by The Contracts and Commercial Law Reform Committee106 in New Zealand outlined the controversies in contractual mistake which needed legislative intervention to solve such issues. This Report outlined the objectives of the proposed legislation of New Zealand which has now been implemented by the Contractual Mistakes Act of New Zealand 1977. The Report first outlined the effect of a mistake on parties to a contract, where it may turn out that the contract becomes something completely different from what a party may have intended it to be. The contract may result in one party being grossly disadvantaged at the expense of the other party. The Report recognized that the courts battled between maintaining the sanctity of commercial agreements as the older law would have promoted, versus the modern view of protecting parties from the injustices of a contract where a mistake has occurred. They believed that this placed a strain on contract law which needed reform. Secondly, the Report described the law on contractual mistake as a “complicated network of legal doctrine,” where different lines of authority and techniques from judgements were being applied from case to case. The Report summed up the main objective that the law was seeking to achieve but was not achieving, in the following statement. “…there is a single thread of common sense which runs through this patchwork of dogma. It is that the law must strike a balance between avoiding the unfairness of holding a party to an inappropriate transaction which was not fully assented to, and protecting other parties to the contract (and those claiming under them) who have a legitimate interest in seeing the contract performed.”

The Report went on to directly identify the controversy that is being discussed in this paper; the fact that the law was relying on a number of “tests” for mistake which had no meaning and gave no clear guidance to the courts on how to approach the doctrine of mistake. They explained that these meaningless tests made it difficult for the courts to come to cogent decisions, or to                                                               105Thomas 

Gibbons,  ‘A  Contracts  (Consolidation)  Act  for  New  Zealand’[2003]  <http://www.nzlii.org/nz/journals/WkoLRev/2003/2.html> accessed September 24th 2012 

WkoLRev2 

 

106

 The Report On The Effects Of Mistakes On Contracts 1976 by The Contracts and Commercial Law Reform Committee <http://132.181.2.68/Data/Library4/law_reports/concomlaw_274530.pdf.> accessed 25th November, 2012 

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maintain any stability in the law. The Report specifically lamented about the controversy between Bell v Lever Bros. which was the common law position on mistake and Solle v Butcher being the equitable position on common mistake, referring to it as a “double-standard” that the courts had to grapple with. They argued that the doctrines contradicted each other and this introduced “unnecessary complexity and artificiality” in the law of common mistake. They also highlighted that the remedies in the law of common mistake were extreme and inflexible, and that this would lead to the courts giving arbitrary judgements in order to make the case fall within one of the limited remedies available. They also drew concern to the enormous amount of work that attorneys and the courts have to belabour in attempting to reconcile the conflicting precedents with its subtle differences in arriving at a conclusion. The Report went on to describe what is a “fundamental mistake” in the following statement: “the mistake must relate to some matter which is so important that it is in the minds of the parties at the time they contract. Secondly, the parties themselves must not have allocated the risk of error as to that matter in their contract. Thirdly, the error must have a significant effect on the operation of the contract. Thus, this definition can be relied upon when the courts are interpreting the legislation as to what is meant by a ‘fundamental mistake,’ which had not for many years been sufficiently defined by the courts. The Report also highlighted that in order for a mistake to be operative, it has to result not only in the contract being different from what it was intended to be, but that it must also cause unfair results to the contracting parties. This was not expounded in judicial precedent, but has now been implemented in section 6 (1) (b) of the New Zealand Act. Furthermore, they emphasized that once this type of mistake is established then the courts will have a wide discretion in apportioning a remedy to the parties out of a much broader range of remedies available through the legislation as is stated in section 7(3), which was not available at the common law and equity. They also stipulated that the court should not be prevented from setting aside a contract even if there is a lapse of time, if the court thinks that this is what is fair to both parties. Thus, lapse of time is not included in the Act as a bar to relief. The Report also regarded protection to be given to third parties in a contract where a mistake has accrued, unknown to the third party who was acting in good faith in the transaction. They recognized the common law’s inadequacy in this area of law and thought it necessary to include this in its reform, as is shown in section 8(1) of 79 


the Act. Acordingly, the New Zealand legislature in taking these considerations into account by the Contracts and Commercial Law Reform Committee implemented the Contractual Mistakes Act of New Zealand 1977. Thus, it is postulated that the solution to the controversy surrounding the Great Peace decision on the law of common mistake lies in legislative intervention, and a useful guide to what the content of such legislation should possess can be found in the Contractual Mistakes Act 1977 of New Zealand. CONCLUSION The law on common mistake consists of three categories. (a) common mistake as to the existence of the subject matter of the agreement, (b) common mistake as to the possibility of performing the contract, (c) common mistake as to the quality of the contract. The first two categories portray the settled area of the law on common mistake, as the cases establish. However, the third category created the unsettled and controversial area of the law on common mistake. The case of Bell v Lever Bros. postulated the view that at the common law, the common mistake as to the quality of the contract had to be one that made the contract ‘essentially different’ from what it was believed to be, in order for the contract to be declared void. The case of Solle v Butcher articulated that even if the mistake was not sufficient in law to declare the contract void, if it was a ‘fundamental’ mistake then the contract could be rendered voidable in equity. Both law and equity did not provide adequate guidance on how the courts should determine if a mistake was fundamental or not. Neither of them provided guidance on what would make a mistake sufficiently fundamental to have the contract declared voidable in equity but not sufficiently fundamental to have it declared void at law. The court in the case of Bell was taking a more hands-off approach to contracts, attempting to maintain the sanctity of commercial agreements, while the court in Solle was taking a more hands-on approach attempting to protect innocent parties in a contract. Furthermore, the remedies available to the parties were quite limited, and there was no substantial protection for third parties in such a contract. Thus, there were now two controversial theories on the law of common mistake, each limited in some respects, leading to great injustices to contracting parties. The decision of Great Peace then attempted to settle this controversy by introducing a test to determine if a mistake was operative or not. However, the 80 


Great Peace test was a very high one for parties to satisfy, proving almost impossible to do so, as the cases illustrated. Thus this led to the controversy surrounding common mistake to become even more complex. Furthermore, several jurisdictions were involved in a process of â&#x20AC;&#x2DC;selective jurisprudenceâ&#x20AC;&#x2122; where they were choosing which of the three decisions (Bell, Solle, Great Peace) on common mistake to follow and which to disregard. This paper postulated the theory that the controversy surrounding the Great Peace decision on common mistake lie in legislative intervention. Reference was made to the Contractual Mistakes Act 1977 of New Zealand which offer recommended solutions to the Great Peace controversy. Regard was also made to The Report On The Effects Of Mistakes On Contracts 1976 by The Contracts and Commercial Law Reform Committee of New Zealand to further illustrate the arguments in favour of legislative intervention, to alleviate the controversy surrounding common mistake. The Act covers all types of mistakes, thus the doctrine of contractual mistake would be governed by one Act, making it easier for parties to be entitled to a remedy, as well as the courts possessing well established rules to govern their decision. Secondly, the requirements in the Act that parties have to satisfy the court to receive relief are more realistic than the Great Peace test, and to a large extent much easier for the parties to satisfy than the Great Peace test. Thirdly, parties seeking relief under a contract are protected in that even if their contract expressly or impliedly provide for the assumption of the risk of a mistake, they are not obliged to accept such a risk. This was not provided for in the common law or in equity. Fourthly, the remedies open to the parties under the legislation are far greater than those offered by the common law and equity. This is favourable to contracting parties, who have a greater chance of receiving relief. Additionally it is favourable to the courts which have a greater discretion in apportioning a wide range of remedies, not being constrained to the prior alternatives available. Fifthly, the Act also confers protection to innocent third parties to a contract based on common mistake, and also regulates such protection, which the common law was deficient in. Thus, the Contractual Mistakes Act 1977 of New Zealand provides the solution to the controversy surrounding common mistake in Great Peace. Moreover the Act goes further in filling the gaps in the common law and equity with respect to common mistake, where deficiencies existed; thereby providing an excellent portrayal of what the law of common mistake should emulate in all jurisdictions.

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BIBLIOGRAPHY

ARTICLES David Capper, ‘Common Mistake in Contract Law’ [2009] 457-473 Singapore Journal of Legal Studies<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1543639>accessed 16th September 2012 Thomas Gibbons, ‘A Contracts (Consolidation) Act for New Zealand’[2003] WkoLRev2 <http://www.nzlii.org/nz/journals/WkoLRev/2003/2.html> accessed September 24th 2012

BOOKS Ewan Mckendrick,Contract Law:Text, Cases and Materials (4thed, Oxford) pg. 544 Jill Poole, Casebook on Contract Law(10thed, Oxford) JohnW. Carter & David John Harland, Contract Law in Australia, 4th ed. (Sydney: Butterworths, 2002) at para. 1231. Richard Stone, The Modern Law Of Contract (8thedn, Routledge 2009) pg.390

CASES Associated Japanese Bank Ltd. v Credit du Nord SA [1988] 3 All ER 902 Australia Estates P/L v. Cairns City Council [2005] Q.C.A. 328 Bell v Lever Bros. [1932] AC 161 Brennan v Bolt Burden [2004] EWCA Civ 1017; [2005] QB 303 Chandler v Webster[1904] 1 KB 493 Cooper v Phibbs (1867) LR 2 HL 149 Courtier v Hastie (1856) 5 HL Cas 673, 10 ER 1065

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Fibrosa Spolka Ackyjna v Fairbairn Lawson Combe Barbour Ltd. [1943] AC 32, [1942] 2 All ER 122 Great Peace Shipping Ltd. v Tsalvris Salvage (International) Ltd. [2002] EWCA Civ 1407; [2003] QB 679 Griffith v Brymer (1903) 19 TLR 434 Kyle Bay Ltd (T/A Astons Nightclub) v Underwriters Subscribing Under Policy Number 019057/08/01 [2007] EWCA Civ 57; [2007] All ER (D) 93 (Feb) Miller Paving Ltd v. B. Gottardo Construction Ltd. (2007) 285 D.L.R. (4th) 568 (Ontario C.A.) O’Neill v Ryan [1999] 1 I.R. 166 (H.C. I.r.) Sheikh Bros. V Oschner [1957] AC 136 Solle v Butcher [1950] 1 KB 671

LEGISLATION Contractual

Mistakes

Act

1977

Of

New

Zealand

<http://www.legislation.govt.nz/act/public/1977/0054/latest/whole.html> accessed 1st November 2012 United States Of America Restatement 2d of Contracts, section 152(1) (online at <http://www.lexinter.net/LOTWVers4/restatement_%28second%29_of_contracts.htm> accessed 17th September 2012 United

Kingdom

Law

Reform

Frustrated

Contracts

<http://www.legislation.gov.uk/ukpga/1943/40/pdfs/ukpga_19430040_en.pdf>

Act

(1943)

accessed

15th

October 2012 The Report On The Effects Of Mistakes On Contracts 1976 by The Contracts and Commercial Law

Reform

<http://132.181.2.68/Data/Library4/law_reports/concomlaw_274530.pdf.>

Committee accessed

25th

November, 2012 81 


“A critical analysis of the degree of human rights protection afforded to juvenile offenders by the criminal justice system of Trinidad and Tobago.”

By Antonio Emmanuel INTRODUCTION This paper aims to critically examine the treatment of persons who are below the age of eighteen and in conflict with the law (hereafter juvenile offenders,) in the criminal justice system of Trinidad and Tobago. This is done with the aim of making a determination of the degree of human rights protection afforded to juvenile offenders within the system and determining whether their rights are violated during the judicial process. The paper begins with an evaluation of the provisions of international human rights treaties and other instruments pertaining to juvenile offenders, in order to make a determination of the scope of protection that is expected to be afforded to them. These include the United Nations Convention on the Right of a Child (hereafter CRC)107 and the UN Standard Minimum Rules for the Administration of Juvenile Justice 1984 (hereafter the Beijing Rules)108 and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty 1990 (hereafter the Havana Rules),109 which are both declarations of the United Nations general assembly. The international standard is then compared to the domestic criminal justice system, with an aim of making a determination of whether the protection offered by the domestic criminal justice system is adequate and commensurate to the international standard. The elements of the criminal justice system upon which this paper places focus are the minimum age for ascribing criminal                                                               107

UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: http://www.unhcr.org/refworld/docid/3ae6b38f0.html [accessed 13 March 2013] 108 UN General Assembly, United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules") : resolution / adopted by the General Assembly., 29 November 1985, A/RES/40/33, available at: http://www.unhcr.org/refworld/docid/3b00f2203c.html [accessed 13 March 2013] 109

UN General Assembly, United Nations Rules for the Protection of Juveniles Deprived of Their Liberty : resolution / adopted by the General Assembly., 14 December 1990, A/RES/45/113, available at: http://www.unhcr.org/refworld/docid/3b00f18628.html [accessed 13 March 2013]

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liability, detention during trial, the nature of sentences which may be imposed on juvenile offenders and detention post trial. A critical evaluation of the domestic legislation relating to criminal justice in Trinidad and Tobago is then conducted. This is to make a determination of the adequacy of the legislation in ensuring that the rights of juvenile offenders are protected. After conducting an analysis of the criminal justice system of Trinidad and Tobago, recommendations for the strengthening of the existing domestic legal framework will be made if necessary. It is submitted that if adopted they will ensure greater security, safety and protection of the rights of juvenile offenders. REVIEW OF CRIMINAL JUSTICE FRAMEWORK FOR THE PROTECTION OF CHILDREN’S RIGHTS The starting point in an analysis of the framework for the protection of children’s rights in the criminal justice system is the CRC110. It sets out the degree of protection that is expected to be given to children and the “minimum entitlements and freedoms that should be respected by governments.”111 One of the core principles is the devotion to the best interest of the child.112 The child is viewed as “an individual and as a member of a family and community, with rights and responsibilities appropriate to his or her age and stage of development.”113 An evaluation of the CRC reveals that any juvenile justice system should have at its centre several aims, upon which the system should be based. These include the encouragement of the wellbeing of juvenile offenders and the treatment of juvenile offenders in a manner consistent with the promotion of their sense of dignity and worth. Juvenile offenders should be dealt with in a manner proportionate both to their circumstances and to the offence committed and efforts should be made for the maintenance of relationship with the juvenile’s family.114 Upon ratification of the CRC, governments have a responsibility to take all appropriate legislative, administrative, and other necessary measures for the implementation of the rights                                                               110

Supra fn 1 UNICEF, 'Convention on the Rights of the Child' (Unicef.org 2005) <http://www.unicef.org/crc/#sthash.uTeMmFqK.dpuf>[ accessed 13 March 2013] 112 Ibid 113 UNICEF, 'Convention on the Rights of the Child - Protecting and realizing children's rights' (Unicef.org 2005) <http://www.unicef.org/crc/index_protecting.html#> [accessed 13 March 2013] 114 G. Van Bueren, The International Law on the Rights of the Child (1st, Martinus Nijhoff Publishers, London 1998) 169-191 111

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recognized in the CRC, to the maximum extent of resources available to them. 115 This is in order to ensure that the minimum standards set out in the convention are being met. This involves an assessment of the protection afforded to children by their domestic legal systems. Trinidad and Tobago ratified the CRC on December 5 1991, and it entered in force domestically on the January 4 1992.116 This creates an obligation to ensure that legislative policy and administrative measures are put in place to ensure that children are fully protected in keeping with Article 4 of the CRC. In keeping with its ratification of the CRC Trinidad and Tobago has issued periodic reports in February 1996 and in June 2003, on the measures taken domestically to protect and safeguard the rights of children guaranteed by the CRC.117 It falls to be determined, upon an examination of the criminal justice system of Trinidad and Tobago, whether the obligation to protect the rights enshrined in the CRC, is discharged with regards to juvenile offenders. A) Ages and Statutory Framework for ascribing criminal liability Article 1 of the CRC defines a ‘child’ as a person below the age of eighteen unless the laws of a particular country set the legal age for adulthood younger. This was done in order to maximize the protection offered by the CRC and to ensure that the rights set forth therein would uniformly apply to as large an age group as possible.118 It should be noted that by virtue of Article 1, countries are allowed to set the legal age for adulthood lower than eighteen in their domestic legislation. This was done as it was felt that there was a need for flexibility, as the age of 18, was not necessarily consonant with the age of majority in various countries. The application of the CRC to persons who are not considered a minor under the domestic law would be incompatible with                                                               115

Supra fn 1 at Article 4 'United Nations Treaty Collection' (Treaties.un 2013) <http://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-11&chapter=4&lang=en> [accessed 13 March 2013] 117 Republic of Trinidad and Tobago Office of the Attorney General ‘Trinidad and Tobago’s Second Periodic Report under the Convention on the Rights of the Child’ (db.natlaw.com 2003) < http://db.natlaw.com/interam/tr/fl/sp/sptrfl00003.pdf> [accessed 13 March 2013] 116

118

S. Detrik, A Commentary on the United Nations Convention on the Rights of the Child (1st, Martinus Nijhoff Publishers, Netherlands 1999) 52,53

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his or her legal status.119 Ultimately Article 1 serves to deprive persons younger than the age of eighteen but older than the age of majority set by an individual county, from rights which they would have otherwise been entitled to under the CRC and which are enjoyed by their counterparts in countries with a higher age of majority. In Trinidad and Tobago the definition of a child is contained in the Children Act Chapter 46:01.120 Section 2 defines a child as a person under the age of 14 years.121 Section 2 also creates a category of person between the ages of 14 and 16 known as young persons.122 The distinction is essential for how they are treated when in conflict with the law, with regards to bail, detention during and after trial and sentencing.123 Essentially persons between the ages of 16-18 are unprotected in the criminal justice system in Trinidad and Tobago and are treated and prosecuted as adult offenders. With regard to attributing criminal liability, the minimum age for criminal responsibility must be considered.

This has been recognized in the CRC which at Article 40 (3) (a) creates an

obligation upon countries to establish a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.124 The minimum age of criminal responsibility is either defined in the domestic statute of a country, or is governed by the common law in the absence of statute. The common law position was that a child below the age of seven could not differentiate between good and evil and where thus incapable of forming the mens rea necessary for committing a crime.125 Children between the ages of seven and fourteen were presumed to lack the minimum mental capacity necessary to commit a crime, and to understand the moral implications of their actions, and it was the role of the prosecution to rebut this presumption.

                                                              119

Ibid Children Act Chapter 46:01, Laws of Trinidad and Tobago 121 Supra fn 14 at s 2 122 Ibid 123 Supra fn 14 at s 10-14, 29-32, 43-64 124 Supra fn 1 at Article 40 125 D Seetahal, Commonwealth Caribbean Criminal Practice and Procedure (1st, Cavendish Publishing Limited, London 2001) 454 120

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This is known as the doli incapax presumption.126 The common law position was received by Trinidad and Tobago and has not been modified by legislation. The minimum age for criminal responsibility around the world was impacted by the English common law, due to colonization.127 Out of 75 countries that received the common law, 51 set the age limit at 7, 8 or 10 and of 50 countries that do have doli incapax, 40 have been directly influenced by English law.128 The same is true for Trinidad and Tobago, where the minimum age of criminal responsibility remains as seven years, as it is governed by the original common law position. Trinidad and Tobago has not sought to define the minimum age for criminal responsibility in statute.129 The doli incapax presumption applies to children over the age of seven and under the age of 14. It is applied in conformity with the ruling in C. (A Minor) v DPP130, where the court held that “There is a presumption that a child between these ages is doli incapax and the presumption can only be rebutted by clear positive evidence that the child knew that his act was seriously wrong at the time when he did it. Upon attaining the age of 14 the presumption ceases and a child is presumed by the law to be capable of distinguishing good from evil.”131 Internationally by virtue of Articles the CRC places a duty upon states to “seek to promote” the establishment of a minimum age for criminal responsibility. The Beijing Rules at Section 4(1) seeks to establish a link between the age of minimum age for criminal responsibility with a child’s development and maturity, and to provide guidance to states in setting a minimum age.132 Section 4(1) states, that the age of criminal responsibility shall “not be fixed too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.”133 It was recognized that the minimum age of criminal responsibility differs in various countries and it                                                               126

Z McDowell, Elements Of Child Law In The Commonwealth Caribbean (1st, University of West Indies Press, Jamaica 2000) 17,18 127 D Cipriani, Children's Rights and the Minimum Age of Criminal Responsibility: A Global Perspective (1st, Ashgate Publishing, England 2009) 87-108 128 Ibid  129 Supra fn 19 130 C. (A Minor) v DPP [1996] 1 A.C 1 (H.L) 131 Archbold Criminal Pleadings, Evidence and Practice (Sweet and Maxwell, London 1997) 90-94 132 Supra fn 8 133  Supra fn 2 at Article 4(1)

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was posited that the modern approach should be whether a child could “live up to the moral and psychological components of criminal responsibility.” In a cross national comparison of youth justice it was stated that internationally the average age of minimum criminal responsibility is 14.134 These findings illustrate that with regards criminal responsibility the laws of Trinidad and Tobago fall below the minimum international standard. B) Detention During Trial B1) The international standard for detention during trial and the grant of bail to juvenile offenders Where a child is in conflict with the law the CRC sets out the international framework for their protection to ensure that their rights are not prejudiced by the judicial process. Article 40 of the CRC states that every accused child must be “treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age.” Additionally Section 40 imposes a duty upon states to “promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law”. The CRC is not the sole international instrument which seeks to regulate the rights of children in the criminal justice system. They are also set out in United Nations General Assembly Resolutions, namely the Beijing Rules135 and the Havana Rules136. The Beijing Rules were adopted by General Assembly Resolution 40/33 of 29 November 1985137 and the Havana Rules were adopted by General Assembly resolution 45/113 of 14 December 1990.138 Trinidad and Tobago was present for the adoption of both rules and though not binding internationally or domestically, they are useful as they provide detail on the contents of existing rights and how they are to be interpreted.                                                               134

Neal Hazel, 'Cross-national Comparison of Youth Justice' (Academia.edu 2008) <http://www.academia.edu/1621782/Cross-national_comparison_of_youth_justice> [accessed 13 March 2013] 135 Supra fn 2 136 Supra fn 3 137 Supra fn 2 138 Supra fn 3

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The Beijing Rules gain further legitimacy as Article 40 of the CRC transforms some of the principles contained in the rules into binding obligations for states139. It should be noted however that the Beijing Rules, though useful, contained a fundamental flaw, in that it only set out protection for persons defined as juveniles under Rule 2.2 (a).140 A juvenile was defined as “a child or young person who under the respective legal system may be dealt with for an offence in a manner different from an adult”.141 The age and vulnerability of the child is not the decisive factor under the rules, but the manner of treatment. This left the definition of juvenile up to the system of trial in individual countries, thereby limiting the application of the rules.142 By virtue of this its application should be limited to aiding in the interpretation of the CRC. The Beijing Rules are concerned with the procedural aspects of youth justice and set out minimum judicial guarantees. The Beijing Rules reference procedures for the investigation and prosecution of matters involving children. Among the measures included are the need for the notification of parents,143 for judges to hear cases without delay,144 and the right to legal counsel.145 Additionally the rules set out measures for the protection of the welfare of children which include that detention pending trial should only be used as a last resort and for the shortest possible period of time,146 and that children are to be detained separately from adults.147 The minimum standards of provision for children held in custody are set out by the Havana Rules, which sets out that where children are to be deprived of their liberty, it should be affected in conditions and circumstances which ensure respect for their human rights.148 The rules also make particular reference to children who are awaiting trial. It is stated that they “are presumed innocent and shall be treated as such.”149 Article 17 of the Havana Rules imposes on states the duty to avoid detention before trial except in exceptional circumstances. In instances where detention is used the highest priority is to be given to the expeditious processing of these cases. It                                                               139

Supra fn 8 Supra fn 2 141 Supra fn 2 at Article 2.2(a) 142 S. Detrik, A Commentary on the United Nations Convention on the Rights of the Child (1st, Martinus Nijhoff Publishers, Netherlands 1999) 52,53 143 Supra fn 2 at Article 10(1) 144 Supra fn 2 at Article 10(2) 145 Supra fn 2 at Article 15(1) 146 Supra fn 2 at Article 13(1) 147 Supra fn 2 at Article 13(4) 148 Supra fn 3 149 Supra fn 3 at Article 3(17) 140

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also imposes upon states a duty to ensure that children do not come into contact with untried or convicted adults. This duty is so fundamental that several countries have incorporated the requirement for the separation of detained children from detained adults, into their constitutions, in order to ensure the maximum protection of children’s rights.150 The basic rights to legal counsel, aid and privacy to communicate with legal advisers is restated in Article 18 of the rules. It is with this overarching framework in mind that the criminal justice system of Trinidad and Tobago must be examined. This is in order to make a determination of whether the criminal justice system meets the standard set out in these international instruments.

B2) Detention during trial and the grant of bail in the Criminal Justice System of Trinidad and Tobago In Trinidad and Tobago there is no special juvenile court for the hearing of criminal cases involving juvenile offenders. There is no enacted legislation which mandates the creation of a special court. Cases are generally heard in the magistrate court, or in the high court for more serious offences. There are, however, special statutory procedures which regulate how the trial is to be conducted and where children are to be detained, which must be followed for the duration of the trial. The statutes also regulate the grant of bail, where the offenders meet the requirements. The provisions are less punitive than for adults, which offer some measure of protection to juvenile offenders. The majority of law regarding how juvenile offenders are to be tried is contained in the Children Act Chap 46:01 and as the majority of cases concerning children, with the exception of serious offences, are tried summarily, the Summary Courts Act Chap 4:10.151 Part IV of the Children Act Chap 46:01 sets out the procedure to be followed for the apprehension and detention of juvenile offenders.152 The procedure conforms in varying degrees with the international standard for the protection of juvenile offenders. While detained in a police                                                               150

Constitution of the Sovereign Democratic Republic of Fiji 1990 s 27(5), Constitution of the Republic of The Gambia 1997 s 29(3), Constitution of the Republic of Uganda 1995 s 34(6) and Constitution of the Federal Democratic Republic of Ethiopia 1995 s 36(3) 151 Summary Courts Act Chap 4:10, Laws of Trinidad and Tobago 152 Supra fn 14 at Part IV

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station Section 73 sets out that arrangement must be made for preventing the child from associating with an adult charged with an offence. This is illustrative of attempts to protect the welfare of the child and do what is in his/her best interest and is in accordance with Article 37 (c) of the CRC.153 By virtue of Article 40(b) (iii) of the CRC a juvenile offender upon being charged has the right to have the matter determined without delay.154 This is followed in Trinidad and Tobago as Section 71 of the Children Act creates the implicit requirement that charged persons under the age of 16 are to be brought ‘forthwith before a Magistrate.’ This section is in recognition of the duty of the court and state to do what is in the best interest of the child. B2 (i) The grant of Bail The grant of bail for juvenile offenders is regulated by the Section 71 of the Children Act155 and the Bail Act.156 Persons under the age of 16 are generally entitled to be released on bail by virtue of the word “shall” inserted in the section which prevents the exercise of a discretion, by the officer in charge of the station, except in certain specified instances. The specified instances where bail can be refused are where the charge is homicide or another grave crime, or it is necessary to remove the person from association with any reputed criminal or prostitute or if releasing him/her would defeat the ends of justice. Section 71 further illustrates that special protection for children in Trinidad and Tobago ends at 16 and juvenile offenders between the ages of 16-18 are not entitled to such special protection. B2 (ii) Detention during Trial: Where the child is not released on bail, the act makes provision for the child offender to be detained in ‘place of detention’ which is regulated by Section 84 of the Children Act, and not a prison. These institutions are regulated by statute and cater specially for the reform of the offenders.

                                                              153

Supra fn 1 at Article 37(c) Supra fn 1 at Article 40(b) (iii) 155 Supra fn 14 at s71 156 Bail Act Chap 4:60, Laws of Trinidad and Tobago 154

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Section 74 of the Children Act however still leaves the door open for children between the ages of 14-16 to be sent to a prison in certain cases. Where a magistrate declares that a person between the ages of 14-16 has an unruly or depraved character and cannot be safely detained in a ‘detention centre’, they may be sent to prison.157 This is contrary to Article 37(c) of the CRC which requires states to ensure that children deprived of their liberty are treated in a manner which takes into account the needs of a person of their age and adult prisons are ill equipped to deal with children in this manner.158 Additionally no protection is offered to persons between the age of 16-18 and they are liable to be detained in ordinary prisons as by virtue of the legislation they are not subject to juvenile justice laws, procedures and policies. The domestic legislation therefore offers some measure of protection to children as defined in Trinidad and Tobago. This protection however ends at 14 and involves a large amount of discretion on the parts of magistrates and police officers. This illustrates that persons between the ages of 14 to 16 are afforded protection different to those under 14, and whether they are imprisoned or not is discretionary. This is below the international standard, which prevents imprisonment of all people under 18, however as Article 1 of the CRC allows for countries to set their own age of majority, the legislation does not breach treaty obligations. This illustrates that although the international human rights instrument go a long way in affording protection to children there are still some deficiencies. In a Caribbean Juvenile Justice Assessment159 conducted by USAID, in assessing the exercise of discretion of magistrates, it was stated that “magistrates allegedly exercise their discretion in seeking to interpret the law in ways that are more rehabilitative than retributive but there are several serious limitations that negatively impact the outcome for juvenile offenders”. It was reported that “approximately fifty per cent of juveniles who appear before the criminal court have neither legal representation nor support from a parent”. Another issue of concern was delays, which increase the length of trials and cause children in conflict with the law to be held on remand while awaiting trial. It has also been reported that “some children in Trinidad and                                                               157

Supra fn 14 at s 74(b) Supra fn 1 at Article 37(c) 159 Bertrand Laurent, Dr. Annmarie Barnes, Tania Chambers, Sherrian Gray , 'Caribbean Basin Security Initiative Juvenile Justice Assessment, Final Report' (USAID.gov 2011) <http://pdf.usaid.gov/pdf_docs/PNADY163.pdf> [accessed 13 March 2013] 158

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Tobago are held in custody for as long as four and a half years without a trial.”160 These reports illustrate that while some measure of protection is present in Trinidad and Tobago, it may not be adequate in protecting children’s rights. B2 (iii) Procedure to be followed during trial The procedure to be followed during trial of a child is regulated by the Summary Courts Act.161 Section 99 empowers magistrates to deal with cases summarily, except where the charge is murder or manslaughter.162 The magistrate has a duty to explain to the child the substance of the alleged offence, which recognizes the human dignity of the child. Cases of juvenile offenders coming before magistrates are often reported in the newspapers of Trinidad and Tobago and can be used to examine how the procedure is generally applied. Of the cases examined the accused child is generally brought before the magistrate, who listens to the facts of the case, which usually involve drug use, larceny or minor acts of violence. The magistrate will then award bail or remand the accused to a detention centre such as the Youth Training Centre in more serious cases.163 An examination of the legislation and application of the legislation illustrates that while some protection is present it fails to meet the international standard, and leaves far too much up to the discretion of magistrates and police officers. The scope is additionally limited by the distinctions between child and young person, which prevent the existing legislation from being automatically applied to persons so classified who fall under the internationally recognized age of majority. B2 (iv) Improper detention before arrest: In certain instances children accused of crimes are improperly detained and have their human rights violated before they are even charged, which results in actions being brought before the                                                               160

Inter-American Commission on Human Rights (IACHR), Juvenile Justice and Human Rights in the Americas, 13 July 2011 ISBN: 978-08270-5677-0, available at: http://www.unhcr.org/refworld/docid/4e69c5a42.html [accessed 12 March 2013] 161 Supra fn 45 162 Supra fn 45 at s 99  163 A. Paul ‘Teen on gun, ganja charge denied bail’ The Trinidad Guardian, Trinidad 2013, < http://guardian.co.tt/news/2013-02-18/teen-gun-ganja-charge-denied-bail> [accessed 13 March 2013], ‘Caught with ganja: Magistrate sends teen to YTC’ The Trinidad Express, Trinidad 2013, <http://www.trinidadexpress.com/news/Caught_with_ganja__Magistrate_sends_teen_to_YTC191489871.html?m=y &smobile=y> [accessed 13 March 2013]

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State for false imprisonment. In Trinidad and Tobago there are reported cases where children have been wrongfully detained, beaten and deprived of the right to consult an attorney. In Baboolal, David; de Freitas, Ronald v The Attorney General of Trinidad and Tobago, the claimants were 14 years old and were arrested without a warrant.164 They were taken to the police station, were denied access to their parents and were not informed of their rights to consult an attorney. They suffered an inhumane interrogation procedure which involved assault and battery and public humiliation. They were “threatened and cursed by the police officers… they were put to kneel on filthy steps with their hands up in the air for 10 minutes and while kneeling they were threatened by 2 army officers to be kicked down” and “the claimants were searched and the first claimant's pants were pulled down so that part of his buttocks was exposed to the full view of the public”. The treatment by the officers violated several rights of the child under the CRC. These include Article 19, which protects children from all forms of violence, Article 40 which mandates fair treatment within the justice system, and Article 37 which prohibits the arbitrary deprivation of the liberty of a child.165 In reparation of these violations the claimants were awarded damages, which do little to compensate harm to the welfare of the child. This case is by no means an isolated incident, in Re The Constitution of Trinidad and Tobago...De Silva, Robert; De Silva, Renaldo [a minor by his father and next friend Robert De Silva] v The Attorney General of Trinidad, the second applicant was a minor and was arrested.166 He not informed of the reason for his arrest, interviewed without the presence of his parent or guardian and was not informed of his right to counsel. While the case failed as it was a constitutional motion and it was found that there were alternative remedies, the court granted declarations that failure of the police to inform the applicants of the reason for their arrest and of their right to retain counsel was a violation of the Constitution. It is useful however in illustrating that police officers will often act in breach of their procedures, to the detriment of accused.                                                               164

Baboolal, David; de Freitas, Ronald v The Attorney General of Trinidad and Tobago [2008]H.C.2487  Supra fn 1 at Article 19,40,37 166 In Re The Constitution of Trinidad and Tobago...De Silva, Robert; De Silva, Renaldo [a minor by his father and next friend Robert De Silva] v The Attorney General of Trinidad [2000] H.C.2658 165

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The cases illustrate that there is need to improve the procedures for affecting the arrest of children and that deficiencies in the criminal justice system can have a direct impact on children. The award of damages does little to undo the psychological harm to the children accused of committing crimes. There exists a need to strengthen the criminal justice system, and particularly ensuring that officers are mindful of their role and how it is to be properly discharged especially when dealing with children.

C) Nature of Sentencing The CRC sets out general prohibitions against the imposition of certain types of sentences on juvenile offenders. Article 37 of the CRC prohibits the use of cruel, inhuman or degrading treatment or punishment against children. It also sets out and the right of detained children to be treated with dignity.167 Article 37 also prohibits the imposition of the sentence of capital punishment and the sentence of life imprisonment without possibility of release on persons below eighteen years of age. Article 6 of the Covenant on Civil and Political Rights also prohibits the imposition of the death penalty on children.168 The international instruments illustrate that generally international law only imposes restrictions on sentences where necessary to protect the physical and mental integrity of the child. In Trinidad and Tobago, the procedure for the sentencing of a child found guilty of a crime is regulated by Section 83 of the Children Act.169 It sets out the sentences which may be imposed on a child or young person, which includes the dismissal of the charge, committal to the care of a relative, the payment of a fine or sending the offender to an Industrial School or Orphanage. An examination of the domestic legislation reveals that the imposition of capital punishment on persons below the age of eighteen has been abolished by Section 79 of the Children’s Act.170 The

                                                              167

Supra fn 1 at Article 37 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.unhcr.org/refworld/docid/3ae6b3aa0.html, Article 6 [accessed 12 March 2013] 169 Supra fn 14 at s83 170 Supra fn 14 at s79  168

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imposition of the death sentence has been replaced with detention “during the State’s pleasure… in such place and under such conditions as the Minister may direct”, by virtue of Section 79. The issue of sentencing of juvenile offenders was addressed by the Court of Appeal of Trinidad and Tobago in Attin, Chuck v The State.171 The appellant was 16 years old when he was convicted with another, for the murder of two women. While the co-accused was sentenced to death by hanging the appellant, was detained 'during the state’s pleasure' pursuant to Section 79 of the Children's Act Chap.46:01.172 This was later changed to detention ‘during the court’s pleasure’ upon review of the law. The court brought the section into conformity with the constitution by way of modification. Section 79 was modified to read "detained during the Court's pleasure" instead of "detained during the State's pleasure" and "Court" replaced "Minister" wherever it appeared. This was to ensure that the provision did not contravene the principle of separation of powers. It was stated “that juvenile offenders detained at the Court's pleasure are entitled to a review of their sentence every three years”. This ensures that juvenile offenders are not detained indefinitely and have the possibility of being released pending a review. The criminal court at first instance set the detention at 25 years, at the expiration of which he should be brought back for review. On appeal the Court of Appeal had to determine whether the sentence of 25 years was excessive and whether the welfare of the juvenile accused and his reintegration into society warranted that there should have been periodical review of the sentence. The Court of Appeal held that the sentence of 25 years was not excessive, but that allowed the appeal with regards to the period of review of the sentence. The court stated that the “underlying objective of the legislation is to protect children from the full penalty of the law as it applies to adults”. It was also stated that “there can be no doubt that penal sanctions imposed on children or young offenders who are detained at the court’s pleasure cannot be harsher than those imposed on adults who are serving life sentences.” The court held that the trial judge had erred when he ordered that there would be no review until the expiration of the sentence and that “recent                                                               171 172

Attin, Chuck v The State [2004] C.A.CRIM.29 Supra fn 14 at s79

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authorities have consistently emphasized the concept of continuing review of the progress made by young offenders”. Juvenile offenders who are sentenced under Section 79 are entitled to have their sentences and detention periodically reviewed. This was authoritatively decided by the Privy Council, in the case of The Attorney General of Trinidad and Tobago v Seepersad, Ian; Panchoo, Roodal.173 The Privy Council analysed Section 79, in order to determine the legality of the failure of the State to review the sentences and detention of two persons sentenced under Section 79. The Privy Council ruled that their constitutional rights were breached by the failure to have their sentences and detention reviewed while they were in custody. In making this determination it was stated that “protection and welfare lie at the heart of these provisions. Regard must be had throughout to the welfare of the child or young offender. This is to be found in the leniency of the sentence itself because of its non-capital nature and in its working in the future by keeping the detainees progress and development as he matures under review.”174 The case law illustrates firstly that the legislation in Trinidad and Tobago protects juvenile offenders from the death penalty and that they are thus treated more leniently than adult offenders, which is in conformity with its international obligations. The cases also illustrate that the welfare and development of juveniles are taken into consideration in determining sentences and the duration or continuation of detention. The cases show that the courts play a role in ensuring that the rights of juveniles are not arbitrarily deprived by legislation. In protecting juvenile offenders judges should be mindful of this role in order to ensure the maximum protection is guaranteed to juvenile offenders. With regards to the sentence of whipping, attempts have been made for its prohibition. The Corporal Punishment: Offenders Over 16 Act has been abolished and replaced with the Corporal Punishment: Offenders Over 18 Act.175 This is in recognition of the prohibition of cruel and unusual punishment against children.                                                               173

(1) Ian Seepersad (2) Roodal Panchoo v Attorney General Of Trinidad & Tobago [2012] UKPC 4 PC Supra fn 67 at p30 175 Corporal Punishment: Offenders Over 18 Act Chap 13:04, Laws of Trinidad and Tobago 174

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D) Detention post-trial The rules for the detention of a child post trial seek to ensure that children that the dignity of the child is protected, that the child is free from any negative influences and that the well-being of the child is protected. Article 37 of the CRC also generally sets the standard for detention post trial. It realises that in order to protect children who need to be detained, that consideration must be given to “the needs of persons of his or her age” and that “every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person”. The objectives of the institutionalisation/detention of children are set out in the Beijing Rules. The Beijing Rules at Article 26.1 state that “the objective of training and treatment of juveniles placed in institutions is to provide care, and protection…with a view to assisting them to assume socially constructive and productive roles in society.” This recognizes that even though children may have committed an offence that given the right instruction they can still contribute to society. The rules then set out the minimum standards that are required by the laws of a country to achieve this goal. The Beijing Rules at Article 26.1 state that children in institutions shall receive care, protection and all necessary assistance-social, educational, 'vocational, psychological, medical and physical-that they may require because of their age, sex and personality and in the interest of their wholesome development. The rules also reiterate the need to keep juvenile offenders separate from the negative influence of adult offenders in Article 26.3. The Havana Rules, which are intended to establish minimum standards accepted by the United Nations for the protection of juveniles deprived of their liberty in all forms, accepts the standards set out in the Beijing Rules. The Havana Rules add that “[t]he deprivation of liberty should be effected in conditions and circumstances which ensure respect for the human rights” of the child. It mandates that children detained in facilities should be guaranteed the benefit of meaningful activities and programmes which would serve to promote and sustain their health and selfrespect, to foster their sense of responsibility and encourage those attitudes and skills that will assist them in developing their potential. The Havana Rules recognize that there is a disparity of wealth among countries which will have an impact on the level of protection that can be afforded

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to children and allows for measures to “be implemented in the context of the economic, social and cultural conditions prevailing’ in each state. In Trinidad and Tobago the framework for the detention of children post trial is regulated by the Children Act. Children offenders who are found guilty and are under the age of ten may be sent to a certified Orphanage.176 This is an institution for the industrial training of children, where they are lodged, clothed, fed and taught.177 Juvenile offenders who are found guilty and are between the ages of ten and sixteen are sent to certified industrial schools,178 where they are clothed, fed and taught, until they attain the age of eighteen. In order ensure that these institutions operate at a standard that ensures that the best interest of the child are protected, the act provides for an inspector whose role it is to supervise orphanages and industrial schools.

179

To regulate behaviour of children in these institutions, disobedience and attempts to escape are criminalized by the Children Act.180 The detention of juvenile offenders who are found guilty and are between the ages of sixteen and eighteen is regulated by the Young Offenders Detention Act181. Juvenile offenders are generally committed to the Youth Training Centre, a centre for the detention of ‘young offenders’ regulated by the commissioner of prisons. This legislation is peculiar in Trinidad and Tobago because although the Children Act offers no special protection to persons over the age of 16, the Young Offenders Detention Act offers special detention measures for juvenile offenders who have been convicted and are between the ages of 16-18. The protection offered is also not unfettered as persons falling under the protection of the Young Offenders Detention Act, may still be sent to an adult prison on at the discretion of the court and when convicted of murder, which is contrary to international law. The Young Offenders Detention Act sets out the broad legislative framework for the running of the institution.182 In analyzing the Youth Training Centre the Caribbean basin security initiative stated that there is “clearly a systematic effort within the YTC to maintain a rehabilitative                                                               176

Supra fn 14 at s 44(2) Supra fn 14 at s 29(1) 178 Supra fn 14 at s 43 179 Supra fn 14 at s 31 180 Supra fn 14 at s 61,62,63 181 Young Offenders Detention Act, Chap 13:05, Laws of Trinidad and Tobago 182 Supra fn 75 at s 7 177

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environment that seeks to support the prospects for the reintegration of those committed to its care.” It was expressed that there is a strong emphasis on education and training, and courses are offered in basic reading and numeracy skills which is commendable. Juvenile offenders are being provided with both life skills and training opportunities that will be supportive of their efforts to become reintegrated into the wider society.183 It has however been noted that in Trinidad and Tobago, there is an inadequate number of juvenile detention facilities. With regards to the adequacy of detention facilities, in Woods, Rion v The Attorney General of Trinidad and Tobago, commenting on the facilities in which children are detained, it was stated by Justice Gobin that there is “a need for more support services and perhaps a wider range of institutions to provide more humane appropriate accommodation and supervision for children who have to be placed by judicial officers”.184 It is submitted that more emphasis must be placed on the development of such facilities in order to ensure that juvenile offenders are adequately accommodated. LEGISLATIVE DEVELOPMENTS AND REFORM MEASURES There have been attempts to remedy the deficiencies of the criminal justice system of Trinidad and Tobago, with regards to the treatment of juvenile offenders, through legislation. In the year 2000 a package of children legislation was passed185 and this was considered a development in the area of protection of children rights. This legislation however was never proclaimed. This illustrates that although there has been recognition of the deficiencies of the current criminal justice system there has been a failure to remedy the mischief addressed by these statutes. “Whatever the reasons for the failure to trigger the mechanisms to proclaim these laws, it must not be forgotten that they were all passed by both Houses of Parliament and are therefore the will

                                                              183

Supra fn 53 Woods, Rion v The Attorney General of Trinidad and Tobago [2010] H.C.1686 185 The Children‘s Authority (Amdt) Act 2000, the Children‘s Community Residences, Foster Homes and Nurseries Act 2000, the Miscellaneous Provisions Act 2000, the Adoption of Children Act 2000 and the Children‘s (Amdt) Act 2000  184

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of the people.”186 Thus “significant improvements in the country’s legal framework have not come into force and inconsistencies remain between current legislation and the CRC.”187 In making a determination of the adequacy of the laws of Trinidad and Tobago to discharge its international obligations under the CRC, the reports of the United Nations Committee on the Rights of the Child (hereafter the Committee) can be considered. The Committee monitors and issues periodical reports on whether the legislation and policy of states comply with the CRC. These reports contain an evaluation of the law and recommendations to bring it into conformity. On commenting on the efficacy of the committee it has been stated that, “the committee’s practice of directly or indirectly stating that a party’s laws and practices do not comply with the convention’s standards at certain points is evidence that this body’s examination of reports is thorough. It also demonstrates that the Committee is fulfilling its responsibility to view parties’ reports critically, and this approach is essential if the review process is to be the means of helping states to see where changes must be made if they are to provide, to the greatest extent possible, for the wellbeing of children within their jurisdiction.”188 In the UN Committee on the Rights of the Child: Concluding Observations, Trinidad and Tobago,189 the Committee commended Trinidad for the enactment of the package of legislation in 2000, it was deeply concerned that these laws have not entered into force. These concerns were warranted because the legislation never entered into force and was ultimately replaced by the Children Bill 2012, which also is not in force. The primary concerns with regards to juvenile justice where the low age of criminal responsibility, that life imprisonment may be ordered by the courts since the law does not specify the minimum age at which a person may be sentenced

                                                              186

‘Acts in limbo’ The Trinidad Express, Trinidad 2010, < http://www.trinidadexpress.com/businessmagazine/98900309.html>accessed 13 March 2013 187 The United Nations Country Team ‘Draft 7, Common Country Assessment, Republic Of Trinidad And Tobago’,< www.undp.org.tt%2Finfomation%2520disclosure%2520requirement%2FCOMMON%2520COUNTRY%2520ASS ESSMENT%2C%2520revised%2520march%252031%2C%2520FINAL.doc&ei=kP1UUZekA6HB4APGrYE4&us g=AFQjCNF57CJBTZ_bje-7ICtMdGcgdvPoRw&bvm=bv.44442042,d.dmg2006>accessed 13 March 2013 188 A.G. Mower, The Convention on the Rights of the Child: International Law Support for Children (1st, Greenwood, Westport Connecticut 1997) 97-100 189 UN Committee on the Rights of the Child (CRC), UN Committee on the Rights of the Child: Concluding Observations, Trinidad and Tobago, 17 March 2006, CRC/C/TTO/CO/2, available at: http://www.unhcr.org/refworld/docid/45377ed10.html [accessed 25 March 2013]

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to life imprisonment, and that children may be detained in adult prisons which are reported to be overcrowded and in extremely poor conditions.190 With regards to the age of criminal responsibility it was recommended that proper legislation be enacted and brought into force, to raise the age of criminal responsibility to an internationally acceptable standard.191 This will ensure that more offenders enjoy the protection guaranteed under the convention. On the issue of sentencing it was recommended that legislation be enacted to ensure that life imprisonment is never sentenced to persons below the age of 18.192 This is in recognition of the argument that special procedures are necessary for juvenile offenders. One of the main arguments of proponents of special procedures for juvenile offenders is that children are different and less blameworthy than adults. It is argued that that protection and enhancement of troubled children’s life chances should remain a major youth policy goal, and that modern sentencing policies for adults are too harsh and ham-fisted to apply to a juvenile offender.193 In addressing deprivation of liberty the committee recommended that measures be put in place to ensure that detained children are always separated from adults and that deprivation of liberty is used only as a last resort.194 It was further stated that in cases where deprivation of liberty is unavoidable and used as a last resort, efforts should be made to improve procedures of arrest and conditions of detention and special units should be established for the handling of cases of juvenile offenders. This is in recognition of previous failures of Trinidad and Tobago to adequately ensue that children are protected in this regard. The committee merely restates the duty that Trinidad and Tobago has been charged with under the CRC. It was highlighted that there is a general lack of education of the rights to which a child is entitled. In order to address the lack of education of persons who are have the responsibility with dealing with juvenile offenders, it was recommended that there should be systematic education and training on the rights of the CRC for magistrates, lawyers, law enforcement officials, and personnel working in institutions and places of detention for children.195 This training will ensure                                                               190

Supra fn 83 at para. 73 Supra fn 83 at para. 74 (a)  192 Supra fn 83 at para. 74 (b) 193 B.C. Feld, 'Juvenile and Criminal Justice Systems' Responses to Youth Violence' [1998] Crime and Justice 189, 191 194 Supra fn 83 at para. 74(c), 74(d) 195 Supra fn 83 at para. 23(b)  191

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that persons dealing with juvenile offenders are aware of the rights of children and that every effort is made to respect them. The most recent legislative development in Trinidad and Tobago was the passage of the Children Bill, Act No. 12 of 2012196 (hereafter Children Bill 2012). During debate for the passage of this legislation, it was highlighted that the present Children‘s Act 46:01, was preceded by the 1925 Children Ordinance, and “is still largely reflective of that Ordinance.”197 It was described as lacking cohesion, coherence and being largely ineffective. This stems from the fact that there has been a “fragmented and piecemeal approach to the development of an effective child protection regime for the children”, with the legislation being amended some 19 times since the first passage of the Children’s Ordinance 1925.198 This illustrates that archaic child protection standards are in place in Trinidad and Tobago, and it therefore fails to adequately discharge its international obligations under the CRC to protect the rights of children. The Children Bill 2012, was passed in recognition of the “state of child protection laws in Trinidad and Tobago and the need, therefore, for the introduction of legislation to strengthen and buttress the existing legislative framework.”199

The passage was done with a view of

discharging the international obligations and “to put in place legislative policy and administrative measures to ensure that our children are fully protected under the Articles of the Convention.”200 The Children Bill 2012 introduces several developments in the area of juvenile justice and addresses several of the concerns raised by the Committee. In recognition of the need to ensure that all persons below eighteen have their rights respected, a child has been defined as a person below the age of eighteen.201 There is no longer any distinction between a child and young person and all persons below the age of eighteen fall under the protection of the act. Part 5 of the Children Bill 2012 deals directly with child offenders and makes provisions for bail,202 the

                                                              196

Children Bill, Act No.12 of 2012 Hansard, 20 January 2012, Child Protection Laws in Trinidad and Tobago (State Of). The Minister of Gender, Youth and Child Development (Sen. The Hon. Verna St. Rose - Greaves) 198 Hansard, 9 March 2012, Children Bill 2012, The Minister of Gender, Youth and Child Development (Sen. The Hon. Verna St. Rose - Greaves) 199 Supra fn 91  200 Supra fn 91 201 Supra fn 90 at s3 202 Supra fn 90 at s51,52 197

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detention of the offenders in community residences instead of prisons,203 the separation of juvenile offenders from adult prisoners204 and the review of sentences upon attaining the age of eighteen,205 Part 5 of the Children Bill also explicitly prohibits the imposition of the death sentence on persons under eighteen206 and sets out the procedure for the establishment and operation of a juvenile court.207 These measures if adopted by Trinidad and Tobago will ensure greater compliance with Articles 37 and 40 of the CRC, and they will ensure a higher standard of protection of the rights of juvenile offenders. The Children Bill 2012, however remains lex ferenda and until proclaimed does nothing to protect the rights of juvenile offenders. CONCLUSION The degree of human rights protection offered to juvenile offenders by the criminal justice system of Trinidad and Tobago is inadequate. It falls short of the standard required by the Convention on the Rights of the Child,208 and juvenile offenders do not have all of their rights respected. The age of criminal responsibility falls below the international standard, and legislation must be enacted in order for it to be raised to an age that is in conformity with internationally recognized standards. Detention centers for before, during and after trial must be updated, to ensure that juvenile offenders are treated in a manner which is cognizant of their age and vulnerability and ensures that they are free from the corrupting influence of adult prisoners. There is also the need for the enactment of legislation which creates a wider variety of sentencing options and which ensures that life imprisonment and capital punishment may never be imposed on juvenile offenders.

                                                              203

Supra fn 90 at s60 Supra fn 90 at s53 205 Supra fn 90 at s59 206 Supra fn 90 at s75 207 Supra fn 90 at s81 208 Supra fn 1 204

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While Trinidad and Tobago has made legislative developments, in the form of the Children Bill 2012,209 to address the inadequacy of the criminal justice system, it must be proclaimed in order to have any legal impact. Only when legislation is brought into force can its effectiveness be measured and its adequacy determined. Trinidad and Tobago must also make greater attempts to follow recommendations made by the UN Committee on the Rights of the Child and to comply with the international obligation imposed by the Convention on the Rights of the Child. BIBLIOGRAPHY Books A.G. Mower, The Convention on the Rights of the Child: International Law Support for Children (1st, Greenwood, Westport Connecticut 1997) 97-100 Archbold Criminal Pleadings, Evidence and Practice (Sweet and Maxwell, London 1997) 90-94 D Cipriani, Children's Rights and the Minimum Age of Criminal Responsibility: A Global Perspective (1st, Ashgate Publishing, England 2009) 87-108 D Seetahal, Commonwealth Caribbean Criminal Practice and Procedure (1st, Cavendish Publishing Limited, London 2001) 454 G. Van Bueren, The International Law on the Rights of the Child (1st, Martinus Nijhoff Publishers, London 1998) 169-191 S. Detrik, A Commentary on the United Nations Convention on the Rights of the Child (1st, Martinus Nijhoff Publishers, Netherlands 1999) 52,53 Z McDowell, Elements Of Child Law In The Commonwealth Caribbean (1st, University of West Indies Press, Jamaica 2000) 17,18 Cases Attin, Chuck v The State [2004] C.A.CRIM.29 Baboolal, David; de Freitas, Ronald v The Attorney General of Trinidad and Tobago [2008]H.C.2487Bail Act Chap 4:60, Laws of Trinidad and Tobago C (A Minor) v DPP [1996] 1 A.C 1 (H.L)                                                               209

Supra fn 90

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Ian Seepersad (2) Roodal Panchoo v Attorney General Of Trinidad & Tobago [2012] UKPC 4 PC In Re The Constitution of Trinidad and Tobago...De Silva, Robert; De Silva, Renaldo [a minor by his father and next friend Robert De Silva] v The Attorney General of Trinidad [2000] H.C.2658 Woods, Rion v The Attorney General of Trinidad and Tobago [2010] H.C.1686 Journal Articles B.C. Feld, 'Juvenile and Criminal Justice Systems' Responses to Youth Violence' [1998] Crime and Justice 189, 191 Legislation Children Act Chapter 46:01, Laws of Trinidad and Tobago Children Bill, Act No.12 of 2012, Trinidad and Tobago Constitution of the Federal Democratic Republic of Ethiopia 1995 s 36(3) Constitution of the Republic of The Gambia 1997 s 29(3), Constitution of the Republic of Uganda 1995 s 34(6) Constitution of the Sovereign Democratic Republic of Fiji 1990 s 27(5), Corporal Punishment: Offenders Over 18 Act Chap 13:04, Laws of Trinidad and Tobago Summary Courts Act Chap 4:10, Laws of Trinidad and Tobago The Adoption of Children Act 2000 The Children‘s (Amdt) Act 2000 The Children‘s Authority (Amdt) Act 2000 The Children‘s Community Residences, Foster Homes and Nurseries Act 2000 The Miscellaneous Provisions Act 2000 Young Offenders Detention Act, Chap 13:05, Laws of Trinidad and Tobago Newspaper Articles ‘Acts in limbo’ The Trinidad Express, Trinidad 2010 <http://www.trinidadexpress.com/business-magazine/98900309.html>[accessed 13 March 2013] A. Paul, ‘Teen on gun, ganja charge denied bail’ The Trinidad Guardian, Trinidad 2013

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< http://guardian.co.tt/news/2013-02-18/teen-gun-ganja-charge-denied-bail> [accessed 13 March 2013] ‘Caught with ganja: Magistrate sends teen to YTC’, The Trinidad Express, Trinidad 2013 <http://www.trinidadexpress.com/news/Caught_with_ganja__Magistrate_sends_teen_to_YTC19 1489871.html?m=y&smobile=y> [accessed 13 March 2013] Reports Bertrand Laurent, Dr. Annmarie Barnes, Tania Chambers, Sherrian Gray , 'Caribbean Basin Security Initiative Juvenile Justice Assessment, Final Report' (USAID.gov 2011) <http://pdf.usaid.gov/pdf_docs/PNADY163.pdf> [accessed 13 March 2013] Inter-American Commission on Human Rights (IACHR), Juvenile Justice and Human Rights in the Americas, 13 July 2011 ISBN: 978-08270-5677-0, available at: http://www.unhcr.org/refworld/docid/4e69c5a42.html [accessed 12 March 2013] Neal Hazel, 'Cross-national Comparison of Youth Justice' (Academia.edu 2008) <http://www.academia.edu/1621782/Cross-national_comparison_of_youth_justice> [accessed 13 March 2013] Republic of Trinidad and Tobago Office of the Attorney General ‘Trinidad and Tobago’s Second Periodic Report under the Convention on the Rights of the Child’ (db.natlaw.com 2003) < http://db.natlaw.com/interam/tr/fl/sp/sptrfl00003.pdf> [accessed 13 March 2013] The United Nations Country Team ‘Draft 7, Common Country Assessment, Republic Of TrinidadAndTobago’,<www.undp.org.tt%2Finfomation%2520disclosure%2520requirem ent%2FCOMMON%2520COUNTRY%2520ASSESSMENT%2C%2520revised%2520m arch%252031%2C%2520FINAL.doc&ei=kP1UUZekA6HB4APGrYE4&usg=AFQjCNF 57CJBTZ_bje-7ICtMdGcgdvPoRw&bvm=bv.44442042,d.dmg2006>[accessed 13 March 2013]

Treaties

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UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United

Nations,

Treaty

Series,

vol.

1577,

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3, available

at:

http://www.unhcr.org/refworld/docid/3ae6b38f0.html [accessed 13 March 2013] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, Article 6, available at: http://www.unhcr.org/refworld/docid/3ae6b3aa0.html [accessed 12 March 2013] UN General Assembly, United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules") : resolution / adopted by the General Assembly., 29 November 1985, A/RES/40/33, available at: http://www.unhcr.org/refworld/docid/3b00f2203c.html [accessed 13 March 2013] UN General Assembly, United Nations Rules for the Protection of Juveniles Deprived of Their

Liberty : resolution / adopted by the General Assembly., 14 December

1990, A/RES/45/113, available at: http://www.unhcr.org/refworld/docid/3b00f18628.html [accessed 13 March 2013] Websites UNICEF, 'Convention on the Rights of the Child' (Unicef.org 2005) <http://www.unicef.org/crc/#sthash.uTeMmFqK.dpuf> [accessed 13 March 2013] UNICEF, 'Convention on the Rights of the Child - Protecting and realizing children's rights' (Unicef.org 2005) <http://www.unicef.org/crc/index_protecting.html#> [accessed 13 March 2013] 'United

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<http://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv11&chapter=4&lang=en> [accessed 13 March 2013] Other Hansard, 9 March 2012, Children Bill 2012, The Minister of Gender, Youth and Child Development (Sen. The Hon. Verna St. Rose - Greaves) Hansard, 20 January 2012, Child Protection Laws in Trinidad and Tobago (State Of). The Minister of Gender, Youth and Child Development (Sen. The Hon. Verna St. Rose Greaves)

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This classic work is a culmination of the perseverance of dedicated students of the Faculty of Law at the University of the West Indies, who, in their ambition and foresight, successfully entered themselves to be considered as an author in this, the Law Societyâ&#x20AC;&#x2122;s inaugural Student Law Review. Their articles in this endeavour address numerous current issues which plague our societies today. It is hoped that with this publication, the Law Society of the Faculty of Law at the St. Augustine Campus would establish itself as a legal voice to be reckoned with. WRITTEN BY Renelle Ramlal, Kevina Ramsook, Gillianna Guy, Sasha Mangar, Denzil Rajack-Prayag, Grace Lucy-Anna Bhagwandeen, and Antonio Emmanuel EDITED BY Radeyah H. Ali st.augustinelawsociety@gmail.com


Student Law Review (#1)