Maharaj v Attorney General of Trinidad and Tobago (No. 2)
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1978 |
| Year | 1978 |
| Date | 1978 |
| Court | Privy Council |
Trinidad and Tobago - Constitution - Human rights and fundamental freedoms - Barrister committed to prison for contempt on order of judge - Order quashed by Judicial Committee - Motion for redress - Jurisdiction of High Court - Whether Attorney-General proper party - Whether contravention of constitutional rights - “Redress” - Whether monetary compensation form of redress -
On April 17, 1975, the appellant, a barrister engaged in a case in the High Court, was committed to prison for seven days for contempt on the order of the judge. The appellant immediately applied ex parte by notice of motion to the High Court under section 6 of the Constitution naming the Attorney-General as respondent and claiming redress for contravention of his right, protected by section 1 (a) of the Constitution, not to be deprived of his liberty save by due process of law. On July 23, 1975, Scott J. dismissed the motion and ordered the appellant to serve his term of imprisonment. After serving the term the appellant appealed from the decision of Scott J. to the Court of Appeal. While that appeal was pending he obtained leave to appeal to the Judicial Committee of the Privy Council against the committal order of April 17. On July 27, 1976, the Judicial Committee quashed the order on the grounds that there had been a fundamental failure of natural justice in that before making the order the judge had not told the appellant plainly enough what he had done to enable him to explain or excuse his conduct. On April 29, 1977, the Court of Appeal by a majority dismissed the appellant's appeal from Scott J.'s decision of July 23, 1975, on the ground that the failure of the judge to specify the nature of the contempt did not contravene a right protected by section 1 of the Constitution.
On the appellant's appeal to the Judicial Committee: —
Held, allowing the appeal (by a majority), (1) that section 6 (2) (a) of the Constitution gave the High Court original jurisdiction to determine any application by a person who alleged that there had been a contravention of the human rights and fundamental freedoms to which he was entitled under section 1 (a); accordingly the High Court had jurisdiction to inquire whether the procedure adopted before the appellant was committed to prison for contempt constituted a contravention of his rights under section 1 (a) (post, pp. 907H–908B)
(2) That Chapter I of the Constitution protected the rights of individuals against infringement by the state or a public authority of the rights declared by section I which were in existence before the Constitution came into force and that section 3 did not legitimise any infringement of those rights regarded by pre-existing law as unlawful; that, accordingly, since the committal order of April 17, 1975, was in breach of the common law which had previously governed contempt of court in that it was contrary to natural justice since the appellant had not been given an opportunity to answer the charge against him, there had been a contravention of the appellant's rights under the Constitution by depriving him of his liberty without due process of law for which he was entitled to redress under section 6 (post, pp. 908H, 909C–E, G–H, 910D–G).
(3) That section 6 of the Constitution was intended to create a new remedy for the contravention of constitutional rights without reference to existing remedies; that the word “redress” in its context bore its ordinary meaning of reparation or compensation, including monetary compensation; and that although the claim was not a claim in private law for damages for tort but was a claim in public law for compensation, that compensation should be measured in terms of the deprivation of liberty, including consequential loss of earnings and recompense for the inconvenience and distress suffered during detention (post, pp. 911C, F–G, H–912A, 913A–C).
Judgment of the Court of Appeal of Trinidad and Tobago
The following cases are referred to in the judgments of their Lordships:
Baker v. The Queen [
Broome v. Cassell & Co. Ltd. [
de Freitas v. Benny [
Director of Public Prosecutions v. Nasralla [
Hinds v. The Queen [
Jaundoo v. Attorney-General of Guyana [
Maharaj v. Attorney-General of Trinidad and Tobago [
Olivier v. Buttigieg [
Pollard, In re (
Rookes v. Barnard [
Sirros v. Moore [
Woolmington v. Director of Public Prosecutions [
The following additional cases were cited in argument:
Allman v. Thornhill (unreported) December 22, 1976, Court of Appeal of Trinidad and Tobago.
Attorney-General v. Antigua Times Ltd. [
Thompson v. Louisville (
APPEAL (No. 21 of 1977) by Ramesh Lawrence Maharaj from the judgment and order (May 5, 1977) of the Court of Appeal of Trinidad and Tobago (Hyatali C.J. and Corbin J.A., Phillips J.A. dissenting) dismissing his appeal from an order of Scott J. (July 23, 1975) dismissing his application by notice of motion on April 17, 1975, to the High Court under section 6 of the Constitution seeking redress for the contravention of his constitutional rights protected by section 1 of the Constitution and naming the Attorney-General as respondent.
The facts are stated in the judgment of the majority of their Lordships.
David Turner-Samuels Q.C., Fenton Ramsahoye S.C. (of the Trinidad and Tobago Bar) and William Birtles for the appellant.
Algernon Wharton Q.C. and Clebert Brooks (both of the Trinidad and Tobago Bar) and Gerald Davies for the respondent.
February 27. The judgment of the majority of their Lordships was delivered by LORD DIPLOCK.
The unfortunate misunderstandings that resulted in the appellant, a member of the Bar of Trinidad and Tobago, being committed to seven days' imprisonment for contempt of court on April 17, 1975, upon the order of Maharaj J., are narrated in the reasons for judgment delivered by the Judicial Committee on October 11, 1976, in the previous appeal to which they have given rise, Maharaj v. Attorney-General for Trinidad and Tobago [
“In charging the appellant with contempt, Maharaj J. did not make plain to him the particulars of the specific nature of the contempt with which he was being charged. This must usually be done before an alleged contemnor can properly be convicted and punished (In re Pollard (
1868 )L.R. 2 P.C. 106 ). In their Lordships' view, justice certainly demanded that the judge should have done so in this particular case. Their Lordships are satisfied that his failure to explain that the contempt with which he intended to charge the appellant was what the judge has described in his written reasons as ‘a vicious attack on the integrity of the court’ vitiates the committal for contempt.”
This was a finding that the judge, however inadvertently, had failed to observe a fundamental rule of natural justice; that a person accused of an offence should be told what he is said to have done plainly enough to give him an opportunity to put forward any explanation or excuse that he may wish to advance. The question in the instant appeal is whether this constituted a deprivation of liberty otherwise than by due process of law, within the meaning of section 1 (a) of the Constitution of Trinidad and Tobago of 1962, for which the appellant was entitled to redress by way of monetary compensation under section 6.
In 1975 there was no right of appeal to the Court of Appeal from an order of a judge of the High Court finding a person guilty of contempt of court and ordering him to be punished for it. An appeal did lie to the Judicial Committee of the Privy Council but only by special leave of that committee itself. So the appellant sought an immediate means of collateral attack on the order of Maharaj J. On the very day of his committal he applied ex parte by notice of motion to the High Court in purported pursuance of section 6 of the Constitution, claiming redress for contravention of his constitutional rights under section 1 of the Constitution and for a conservatory order for his immediate release on his own recognisances pending the final determination of his claim. The nature of the redress that he claimed was (a) a declaration that the order committing him to prison for contempt was unconstitutional, illegal, void and of no effect; (b) an order that he be released from custody forthwith; and (c) an order that damages be awarded him against the Attorney General “for wrongful detention and false imprisonment;” together with a claim for all such other orders etc. as might be appropriate. Both the Attorney-General and Maharaj J. were named as respondents to the notice of...
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