Claudette Clarke v Greg Tinglin
| Jurisdiction | Jamaica |
| Judge | L. Pusey J,Dunbar Green J,Nembhard J |
| Judgment Date | 18 February 2020 |
| Date | 18 February 2020 |
| Docket Number | CLAIM NO. 2018 HCV 02290 |
| Court | Supreme Court (Jamaica) |
[2020] JMFC Full 1
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CONSTITUTIONAL DIVISION
THE HONOURABLE Mr Justice L. Pusey
THE HONOURABLE Mrs Justice Dunbar Green
THE HONOURABLE Miss Justice Nembhard
CLAIM NO. 2018 HCV 02290
(Administratrix of the Estate of Keith Clarke, Deceased and in her own right)
and
and
and
and
and
and
Dr Lloyd Barnett, Mr Leonard Green, Miss Sylvan Edwards, Mr Makene Brown and Miss Sheri Jones instructed by Chen, Green & Company for the Claimant
Mr B. St. Michael Hylton Q.C. and Miss Melissa McLeod instructed by Hylton Powell for the 1 st, 2 nd and 3 rd Defendants
Mesdames Althea Jarrett, Carla Thomas, Deidre Pinnock and Kimberley Clarke instructed by the Director of State Proceedings for the 4 th Defendant
Mr Walter Scott Q.C. and Miss Carlene Larmond instructed by Patterson Mair Hamilton for the Chief of Defence Staff
Mrs Tana'ania Small Davis, Mr Mikhail Jackson and Miss Keisha Simpson instructed by Livingston Alexander & Levy for the Independent Commission of Investigations
Mr Adley Duncan and Miss Latoya Bernard for the Director of Public Prosecutions
Constitutional law — Constitutionality and validity of good faith certificates — Whether good faith certificates infringe the doctrine of separation of powers — Whether good faith certificates supersede the prosecutorial powers of the Director of Public Prosecutions — Whether good faith certificates which were issued outside of the period of emergency are ultra vires, null and void — The Jamaica (Constitution) Order in Council, 1962, Emergency Powers Act, section 3, Emergency Powers Regulations, 2010, regulations 45 and 46
This case sits at the intersection between the individual's right to life and the state's responsibility to protect its citizens and itself against those who may wish to disrupt law and order. The circumstances that led to this application and the arguments of counsel are set out clearly in the judgment of Nembhard J and it is unnecessary for them to be repeated here.
I have read in draft the decision of Nembhard J and I agree with her reasoning and conclusions.
I have also read the decision of Dunbar Green J and I in large part agree with her reasoning. The Court is united in the view that the Good Faith Certificates which have been issued by the Minister of National Security are not a bar to the prosecution of the first three defendants. The Certificates raise a presumption of good faith which may be rebutted during the trial process.
The Emergency Powers Regulations create protection from liability and even in the absence of the Good Faith Certificates, a court would have to consider whether or not members of the security forces have acted in good faith, during an emergency period before determining criminal or civil liability. The Good Faith Certificates are significant because where they exist, they place the burden on the Crown to rebut the presumption of good faith in order to establish criminal liability.
This Court is united in its view that the Minister's power to issue these certificates do not offend the doctrine of separation of powers. The certificates do not interfere with the power of the Director of Public Prosecutions to initiate or pursue action against members of the security forces. The certificates do not fetter the judiciary.
The Court is united in its view that the Minister may issue certificates after the relevant emergency period has expired. The reason for this is that fact finding procedures may take some time and it is reasonable that the Minister may make this decision and issue these certificates after the relevant emergency period has expired.
Nembhard J and I are of the view that, in this instance, the Minister's decision to issue the Certificates at the time that he did and in the circumstances of this case, was unconstitutional because it was manifestly unreasonable and unfair.
In my view the principles of constitutionality guarantee the rights of all individuals to a fair and balanced system. The first three defendants face charges in the criminal court and have a right to due process. However, the persons affected by their actions are also protected by the constitution. This is especially so if, as all parties agree, the first three defendants' actions were committed while they were acting as agents of the state. It is the court's duty to balance the rights of the individual with the powers of the state.
In doing so, the court must give the constitution “a generous and purposive” construction as stated in Ministry of Home Affairs v Fisher [1980] AC 319. The court is not merely looking at the interpretation of the statute but is also construing the constitution as a living breathing document. This is especially so when the court is dealing with powers granted to the state in times of national emergency. Lord Atkins, in Liversidge v Anderson [1942] AC 206, led the charge in indicating that the rights of the individual should be respected even in times of dire emergency. He held the view that even when England was at war, the courts had to act as the guardians of individual rights. It is from this perspective that I have come to the conclusion that statutory powers that affect constitutional rights must be exercised in a just, fair and reasonable manner. The next logical step is that, where those statutory powers have been exercised in a manner that is clearly unfair and unjust, the court, in exercising its constitutional role, must invalidate those acts.
Reluctantly, I have come to the conclusion that the Minister, having signed the Good Faith Certificates some six (6) years after the incident and four (4) years after the preferring of the Voluntary Bill of Indictment, is in my view so unfair and unjust that it cannot be seen to be in conformity with the constitution.
I am aware that the claimants have a civil action for breach of constitutional rights, so I am not expressing any opinion as to whether those constitutional rights have been violated.
I am also cognizant of the fact that the Minister's action could have been challenged in these courts by judicial review. In fact, both counsel for the Chief of Defence Staff and for the first three defendants have indicated that the propriety of the issuing of the Certificates at that time may have been more appropriately examined in the process of judicial review. In a judicial review action, a court may have had evidence indicating the reasons for the Minister's decision or an explanation for the delay in issuing the Good Faith Certificates. Therefore, there may be criticism that, this being a constitutional claim, no such evidence indicating the reasons for the Minister's decision or explaining the delay having been presented to the Court, the Court is not empowered to invalidate the Good Faith Certificates. Despite this, I am resolute in my view that, in this case, the exercise of the power of the Minister to sign the Good Faith Certificates was manifestly unreasonable and unfair.
It was manifestly unreasonable and unfair for the Minister to grant the Certificates after such a long delay for the following reasons. Firstly, it involved actions done during a state of emergency. During such periods of national emergency, the fundamental rights and freedoms of the individual are subsumed in order to ensure the safety of the state. It is therefore important that the state acts circumspectly in relation to any violation of these rights. Secondly, the incident involved, on the face of the allegations, the loss of the life of a householder during a forced entry into his house. Thirdly, it was unreasonable and unfair because the issues involved affected prosecutions instituted by independent arms of the state after extensive investigation and a ruling of the Director of Public Prosecutions. Fairness, in a criminal trial, means that all parties should have ample opportunity to prepare for the trial and gather relevant evidence. To have instituted a legal hurdle some four (4) years after the charge had been laid, contributed to making the action unfair.
In summary, my view is that, although the Minister has the power to issue good faith certificates after a period of emergency, based on the circumstances of this case, to issue the Good Faith Certificates in the manner that he did was manifestly unreasonable and unfair.
As a result, I would be inclined to grant the following Declarations:-
-
(1) That the criminal trial initiated by virtue of the Voluntary Bill of Indictment originally issued in July 2012 by the Director of Public Prosecutions should be restored to the trial list and be permitted to continue;
-
(2) That the Good Faith Certificates or any Certificate issued on 22 February 2016 by the Minister of National Security outside of the Emergency Period were issued in circumstances that were manifestly unreasonable and unfair and are therefore null and void and without effect.
I have read the drafts of my learned brother and sister and I gratefully adopt the summary of the essential facts and arguments as outlined by my sister. I should also say at the outset that the court is grateful to all counsel for the depth and breadth of their submissions which I found to be of immense assistance in arriving at my decision.
According to the facts alleged in the claimant's affidavit, the deceased, Neville Clarke, was on 27 th May 2010 at home with his wife and daughter at premises situated in Red Hills, St. Andrew when a raiding party...
To continue reading
Request your trial