Attorney General of Trinidad and Tobago v Akili Charles (No 2)

This appeal concerns the constitutionality of a law passed by the Parliament of the Republic of Trinidad and Tobago which provides that bail may not be granted to any person charged with the offence of murder.

The relevant statutory provision (“the Bail provision”) is section 5(1) and Part 1 of the First Schedule of the Bail Act 1994 (“the Bail Act”).

The appellant, the Attorney General, accepts that the Bail provision derogates from the fundamental rights and freedoms enshrined in sections 4 and 5 of the Constitution of Trinidad and Tobago adopted in 1976 (“the Constitution”) but contends that it was nevertheless constitutional on two grounds. First, it was an “existing law” immediately before the commencement of the Constitution and therefore, pursuant to section 6 of the Constitution, it was not invalidated by anything in sections 4 and 5 (“the existing law issue”). Secondly, it was passed with a special majority under section 13 of the Constitution (“the section 13 issue”). Section 13 allows for Acts of Parliament to be passed even though they are inconsistent with sections 4 and 5, provided that they are declared to have that effect and that they are passed with a three-fifths majority of both Houses of Parliament, as the Bail Act was. An Act will have the declared effect unless it is “shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual”.

The Court of Appeal rejected the Attorney General's case, holding that the Bail provision was not an existing law and that it was not reasonably justifiable so as to be validated by section 13 of the Constitution. The Attorney General appeals with leave to the Privy Council.

The respondent, Akili Charles was charged, jointly with five others, for the murder of Russell Antoine on 5 December 2010. He was thereafter kept on remand in custody at the Royal Jail in Port of Spain pending trial.

The respondent's preliminary inquiry began on 16 January 2012 before the-then Chief Magistrate, Her Worship Marcia Ayers-Caesar. The preliminary inquiry continued for five years before it halted, part-heard, on 3 April 2017 when the Chief Magistrate was elevated to the High Court bench as a puisne judge. The then Acting Chief Magistrate, Her Worship Maria Busby Earle, decided that the respondent's preliminary inquiry should be heard de novo.

On 17 October 2017, the respondent challenged this decision by way of a claim for judicial review and constitutional relief. The claim was ultimately dismissed by Gobin J on 4 January 2019. The second preliminary inquiry began shortly thereafter before Her Worship Maria Busby Earle but was discharged on 21 May 2019, the magistrate having determined that the evidence relied on by the State did not give rise to a case to answer. The respondent was accordingly released, having been on remand in custody for nearly 8 1/2 years.

On 6 February 2020 the respondent brought a constitutional motion seeking declarations of unconstitutionality and damages.

On 9 March 2021 Charles J dismissed the respondent's claim. The main ground of her decision was that the Bail provision was existing law. She did not rule on the section 13 issue.

On 17 February 2022 the Court of Appeal (Archie CJ, Dean-Armorer and Holdip JJA) allowed the respondent's appeal. The Court held that the Bail provision was not existing law and that the earlier majority Court of Appeal decision in Krishendath Sinaman v The State [1992] 44 WIR 359 was wrong in holding that the High Court did not have jurisdiction to grant bail to a person who had been committed for trial for murder. The Court further held that the Bail provision was not validated under section 13 as it had been shown that it was not reasonably justifiable.

The Court of Appeal made declarations that section 5 and Part 1 of the First Schedule to the Bail Act 1994 (i) “are not reasonably justifiable in a society that has proper respects for the rights and freedoms of the individual” and (ii) “are unconstitutional insofar as their effect is to remove the jurisdiction of High Court Judges to grant bail for persons charged with the offence of murder”.

The Law Association of Trinidad and Tobago was permitted to intervene and to make written and oral submissions before the courts below and in the appeal before the Board.

On 31 August 1962, the first independence Constitution came into effect. On 1 August 1976 it was superseded by the Constitution. Section 1 provides that the Republic of Trinidad and Tobago “shall be a sovereign democratic state”. Section 2 provides that the Constitution is the supreme law and that any law inconsistent with the Constitution is void to the extent of the inconsistency.

Chapter 1 of the Constitution (sections 4 to 14) provides for “the recognition and protection of fundamental human rights and freedoms”.

So far as material, section 4 provides:

“4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely:

(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and the protection of the law;

So far as material, section 5 provides:

Section 6, the ‘savings clause’, states that nothing in sections 4 and 5 “shall invalidate” an “existing law”. It provides:

‘alters’ in relation to an existing law, includes repealing that law and re-enacting it with modifications or making different provisions in place of it or modifying it;

‘existing law’ means a law that had effect as part of the law of Trinidad and Tobago immediately before the commencement of this Constitution, and includes any enactment referred to in subsection (1);

‘right’ includes freedom.”

Section 13 provides that subject to special procedural requirements legislation which is inconsistent with sections 4 and 5 may be passed by Parliament. It provides:

The other exception provided for under section 5 is set out in...