A gloom over Jaroo’s Case

This article concludes the series on the Jaroo case.
My friend and esteemed colleague Avory Sinanan, former temporary Judge and experienced Advocate at the Bar, has consented to make the “closing arguments” in the case against the Privy Council’s Jaroo decision.
Mr Sinanan’s argument goes as follows:

There is no gainsaying that the Privy Council’s decision in Jaroo’s Case fell upon the local legal community “like a ton of bricks.” It brought with it a certain spectre of doom and gloom, so far as constitutional redress was concerned. The notion pushed to the forefront was if the litigant had a parallel remedy at common law, it was an abuse of process for him to seek redress by way of constitutional motion! Such a notion, if allowed to germinate unchecked, had the potential to bloom into a deadly poisonous flower, which could render the remedy by way of Constitutional Motion virtually extinct!

Indeed one of the first casualties of “the Jaroo doctrine” was the now famous case of Clint and Troy Gocking and their claim for redress for the seizure of their heavily armoured Lincoln Navigator Vehicles by the Customs authorities, for no apparent good reason in law. The Learned Trial Judge upheld the State’s submission that in as much as the Gocking brothers had a parallel remedy at common law, it was an abuse of process for them to have proceeded by way of Constitutional Motion and their Motions were denied accordingly.

When one considers that most, if not all circumstances, giving rise to Constitutional relief also involve the infraction of some common law right – it was easy to see how Jaroo could become the panacea – the complete answer is for constitutional claims against the State. It was just what the doctor had ordered for State Attorneys who were opposing these Constitutional Motions. They walked to court with an extra spring to their steps, “ready to proceed.” All they needed to do was shout “parallel remedy”, wave a copy of the judgment in Jaroo’s Case and that was it – Case dismissed – job well done! But was justice served?

The decision in Jaroo was bound to cause some disquiet and disturb the judicial conscience. Our judges were now caught between a rock and “a hard case”. On the one hand there is the provision of Section 14 (1) of the Constitution which provided that the citizen is entitled to proceed by way of Constitutional Motion “without prejudice to any other action that may be lawfully available to him” and on the other hand, the doctrine of stare decisis obliged them to follow and apply Jaroo!

If Jaroo caused disquiet in the Judiciary, it created chaos in the legal profession! No lawyer could now advise his client with any degree of certainty whether to proceed by way of constitutional motion. Success, like Lotto and Play Whe, was a matter of risk and chance. The wrong step could have serious consequences not only in terms of costs. If by the time the Constitutional Motion is heard and dismissed in accordance with Jaroo, the relevant period of limitation has passed, then the litigant was out of court. So although his rights had been infringed, by simply choosing what the Privy Council now deems to be the wrong procedure, he would now be denied redress! This is exactly what happened to Jaroo himself.

Clearly, this stalemate between the vision embodied in our Constitution and the doctrine of precedent had to be addressed. Although the profession was virtually universal in the condemnation of Jaroo, there was no unanimity as to how the matter should be addressed. The prevailing view is there should be legislation to nullify the effect of Jaroo. That, of course, is the ideal; but while the legislative grass is growing the constitutional horse may very well be starving.

Given the obvious injustice which a rigid application of the Jaroo decision can perpetrate, is there any thing our Judges can do to alleviate the situation? To their credit our Judges at first instance have tried and no doubt with encouragement will continue to do so. In one case, the judge obliged to dismiss a Constitutional Motion on Jaroo’s grounds, attempted to temper the harshness of the decision, by converting the proceedings into a Common Law action. Her attempt was shot down by the Court of Appeal, which held that since the institution of the proceedings itself was an abuse, having been made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate remedy, that is by way of the common law action, the proceedings remained an abuse throughout, and could not, or should not be remedied by the Court using its curative powers. (See Civil Appeal No: 63 and 74 of 2002 – Attorney General of Trinidad and Tobago -v- Joseph George and Mc Clean Durham).

The boldest and most seminal attempt yet to deal with the Jaroo doctrine frontally has been by Justice Sebastien Ventour in HCA No 2631 of 1992 (Kenneth Duncan -v- The Attorney General of Trinidad and Tobago).

The applicant brought a Constitutional motion that he was deprived of his property (salary, pension, and gratuity) without due process of law. The State raised Jaroo as a preliminary objection – to wit, the Applicant could have sued for this money by ordinary common law action and therefore to adopt the Constitutional procedure was an abuse of the process. Justice Ventour, in finding for the Applicant) accepted the submissions that to appreciate the ratio decidendi (the true reason for the decision) of Jaroo, one had to have regard to the factual context and that Jaroo left the door open, by providing that in exceptional circumstances, one could still come for constitutional relief, even though a parallel remedy exists and this was such a case. The exceptional circumstance here being the failure of the Chief Personnel Officer to obey what was essentially the lawful directive of the Commissioner of Police. Moreover, the Judge held that before you can disqualify an applicant from seeking Constitutional relief the Court must be satisfied that the allegation is indeed frivolous and vexatious, or an abuse of process, as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate remedy. There was no evidence before His Lordship that this was the case here. Accordingly, the Applicant was entitled to the Constitutional relief sought.

Perhaps it is not untimely to remind those who are called upon to interpret and apply our Constitution, that the terms of that document are the governing factor and the caselaw on the meaning of those terms is only a secondary factor, which can’t supercede or override the paramountcy of the Constitution. As Frankfurter J put it in Graves -v- New York 306 US pg. 466 W 491 (1939) “The ultimate touchstone of Constitutionality is the constitution itself, and not what we do about it”. For the moment though, the litigant should not despair – for among our judicial pundits, there are those with the conviction and fortitude to “Jhaare” Jaroo, when the justice of the case demands it, and there are those of us Constitutional Lawyers who will continue to work tirelessly to keep defending Constitutional Rights!

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