The reasonable layman who is blessed with a logical mind quite often quotes the much repeated dictum of Charles Dickens, to wit, "the law is an ass," when confronted by judicial pronouncements which seem to defy all logic and fly in the face of rationality. More often than not it is not the law itself that should be deemed to assume the stature of that beast, which in the much maligned JO Cutteridge's West Indian Reader clothed itself in a lion's skin.
It is indeed more those who are charged with interpreting and applying the law who should be deemed to be kin of that imaginative beast of Cutteridge's fantasy. Case in point being the judgment of the illustrious Judicial Committee of the Privy Council in the case of Francis Pamponette and Others-v-Attorney General of Trinidad and Tobago, Privy Council Appeal No 0009 of 2010 (the City Gate Maxi-Taxi Owners Association case).
I cannot comprehend, without difficulty, how in Heaven's name three learned "lords of the law" and one learned "lady of the law" (there was one dissenting Law Lord to whom I will refer later) could have come to the decision that the constitutional rights of the City Gate maxi-taxi owners were infringed by them having to pay a fee (a mere pittance) for use of the City Gate Transit Facility. In the proceedings, the maxi-taxi owners claimed (as stated in the judgment) that:
The action of the State had frustrated their legitimate expectations of a substantive benefit in a way that affected their property rights protected under section 4(a) of the Constitution; and they had been treated unfavourably by the Government as compared with other maxi-taxi owners and that they had thereby suffered a breach of their right to equal treatment under section 4(d) of the Constitution.
After applying all the usual judicial mechanisms and scrutiny, four of the learned people concluded:
The critical representation was that the maxi-taxi owners would not be under the control and management of the PTSC. This was enough to give rise to a substantive legitimate expectation that the owners and operators would be permitted to operate from City Gate and would not be under the control or management of the PTSC. The Government did not prove that there was an overriding public interest which justified the frustration of legitimate expectation.
For these reasons the appellants' case on section 4(a) of the Constitution succeeds. There was no evidence of material differences between the circumstances of the maxi-taxi owners who used the City Gate facility and other maxi-taxi owners who did not have to use the facility. It is indeed difficult for any layman to see how the payment of a user fee for a facility which allowed the maxi-taxi owners to conduct their trade in a more efficient and organised manner and which created a more attractive market for securing customers can be deemed to have frustrated their legitimate expectation, to the extent that they had suffered a breach of their right not to be deprived of their property.
On balance it is reasonable to conclude that the maxi-taxi owners obtained a substantial benefit through the use of the facility. The facility had to be managed and maintained. There are costs for management and maintenance of the facility. Why should the beneficiaries of the facility not pay those costs? Who is better to manage the facility than the owner of the facility, PTSC, who has had long experience in operating transport terminal facilities?
On the issue of equality of treatment from a public authority under section 4 (d) of the Constitution, the majority of the Law Lords rejected the finding of the local Court of Appeal that dissimilarities in circumstances exist between the City Gate maxi-taxi owners and that other maxi-taxi owners, to wit, the others did not enjoy the facilities at City Gate nor did they have use of the Priority Bus Route. The Law Lords concluded that it was not self-evidently true that the differences between the City Gate maxi-taxi owners and other maxi-taxi owners were material.
Perhaps no one remembered to inform the Privy Council that the normal taxi stand in T&T is usually an area alongside a public road with no facilities whatsoever. Notwithstanding the seemingly irrational stance adopted by the majority, there was some sanity in the asylum in the person of Lord Brown, who was refreshingly logical in his dissenting judgment. Those who want to beat their chests and boast of victory would do well to consider the well-reasoned judgment of Lord Brown. I wish only to quote the following statements from Lord Brown's judgment to illustrate my contention:
59. Whilst I readily accept that the imposition of user fees deprived the association members of their right to enjoyment of property and needed, therefore, to be effected "by due process of law," on the face of it nothing could be more clearly lawful than charging ex-hypothesi "reasonable charges" for the facility afforded, as authorised by regulations properly made under the empowering legislation.
60. It is said, however, that the assurances given to the association in 1995 gave them a substantive legitimate expectation that no such regulations would be made and no such charges imposed. This, the board says at paragraph 27, "was so unfair as to amount to an abuse of power." With the best will in the world I cannot agree with this conclusion (my emphasis).
62. And if the association was not itself to manage the facility, why should it not be managed by its owner, PTSC? One must therefore ask, given that the PTSC was providing a facility, and that inevitably this would involve them in expense, were the association really entitled to suppose that, five years after relocation, they would remain entitled to the free use of the facility?
63. So far from it being an abuse of power to introduce reasonable charges after giving the association five years of free use of the facility, this seems to me entirely unsurprising and properly authorised by the 1997 regulations. Criticise the Government as one might for its conduct of this litigation, I do not think the evidential shortcomings here are sufficient to justify so unmerited a windfall for the association at so great a cost to the long-suffering Trinidad taxpayers. With respect to the case under section 4(d) of the Constitution, Lord Brown had this to say at paragraph
65:"I can indicate altogether more briefly why I find myself in respectful disagreement with the board on this issue too. Plainly the association was treated unequally in comparison to maxi-taxi owners and operators on routes 1, 4 and 5 in that they, unlike the association, were not required to pay a fee for the use of their taxi stands. The justification for this unequal treatment, however, seems to me prima facie self-evident.
"Only the association enjoyed the PTSC's facility and were thus required to pay reasonable charges for its use. If the association wished to assert that comparable facilities were provided without charge to the owners and operators on the other three routes, to my mind it was plainly up to them to adduce evidence to this effect. This they singularly failed."
Lord Brown did not depart from the applicable law. He applied the same legal principles as the other learned judges and arrived at a decision which could withstand any test of reasonableness. In his analysis of the situation one can clearly discern the thread of reasonableness running through his arguments and conclusions thereon. Lord Brown made perfect sense. The irony of this case is that it appears that the maxi-taxi owners passed on the cost of the user fee to the passengers and this did not diminish the demand for their services as they virtually have a captive market. They have already made it quite clear that the passengers who actually paid the fees would not benefit from the largesse granted by the Privy Council.
This case also demonstrates that although T&T is an independent republic it is still ruled by it former colonial master indirectly through the Privy Council. In this case the Privy Council has determined how the State must administer its transport facilities. This is not materially different from when laws were imposed from England in times past. In concluding, I wish to make it absolutely clear that this article is not intended to be a scholarly legal critique of the judgment of the Privy Council. I merely wish to illustrate how judicial reasoning, which on the face of it appears to be sound, could lead to decisions which leave average rational people racking their brains to understand how the tribunal could arrive at such an unreasonable and impractical conclusion.
This also turns the pursuit of justice into somewhat of a lottery, in that different judges applying similar legal principles to the same facts can come to such differing conclusions. Perhaps some adjudicators possess imaginations that are as vivid as that of Cutteridge's beast that donned the lion's skin.
Mario Edwards
Attorney-at-law