Derek Achong

The Court of Ap­peal has re­fused to re­verse the sus­pen­sion of a re­cent judg­ment, which struck down a law, that gave prospec­tive lawyers from T&T, who com­plet­ed their post-grad­u­ate qual­i­fi­ca­tions in the Unit­ed King­dom, a short-cut in­to the le­gal pro­fes­sion over CARI­COM na­tion­als. 

De­liv­er­ing an oral de­ci­sion at the Hall of Jus­tice in Port-of-Spain yes­ter­day, Ap­pel­late Judges Nolan Bereaux, Ju­dith Jones and An­dre Des Vi­gnes ruled that their col­league, Ap­peal Court Judge Prakash Moo­sai was en­ti­tled to sus­pend the judge­ment in Sep­tem­ber. 

The de­ci­sion di­rect­ly im­pacts 31 cit­i­zens, who are seek­ing to utilise it lat­er this month and would have been barred from do­ing so if the sus­pen­sion was lift­ed. 

Pre­sent­ing sub­mis­sions on be­half of Grena­da-born, St Lu­cian na­tion­al Di­anne Jhamil­ly Hadeed, who brought the law­suit, at­tor­ney Raisa Cae­sar sug­gest­ed that the sus­pen­sion meant that the dis­crim­i­na­to­ry and un­con­sti­tu­tion­al leg­is­la­tion was al­lowed to op­er­ate while the case is be­ing ap­pealed. 

Bereaux in­ter­vened as he asked Cae­sar to ex­plain how Hadeed was prej­u­diced by the sus­pen­sion as com­pared to 31 oth­er per­sons, who could ben­e­fit from the leg­is­la­tion. 

“What hap­pens if Jus­tice Vasheist Kokaram is wrong? What about the peo­ple who are now put in that sit­u­a­tion? Are they not now prej­u­diced?” Bereaux said.

Cae­sar sug­gest­ed that there would al­so be an is­sue if the ap­peal is even­tu­al­ly dis­missed af­ter the 31 ap­pli­cants are ad­mit­ted to prac­tice. She al­so said that the court did not have the ju­ris­dic­tion to grant a stay or sus­pen­sion of Kokaram’s de­c­la­ra­tion against the leg­is­la­tion as it was a fi­nal or­der, which took im­me­di­ate ef­fect. 

Re­spond­ing to the sub­mis­sions, at­tor­neys for the At­tor­ney Gen­er­al and the Reg­is­trar of the Supreme Court both agreed that  Moo­sai had the pow­er to sus­pend the de­ci­sion. 

In their de­ci­sion, the judges agreed that Moo­sai’s ac­tion was per­mit­ted as part of the court’s dis­cre­tion and was war­rant­ed as the ap­peal in the case is set to be heard on De­cem­ber 17. 

“The law does not de­vel­op in a vac­u­um, it ad­justs,” Jones said. How­ev­er, Jones ad­mit­ted that such dis­cre­tion should on­ly be ex­er­cised spar­ing­ly and in spe­cif­ic cir­cum­stances. 

In the con­tro­ver­sial law­suit, Hadeed, who re­sides in Trinidad, chal­lenged Sec­tion 15 (1A) of the Le­gal Pro­fes­sion Act. The seg­ment of the leg­is­la­tion gives T&T cit­i­zens who do not ob­tain a post-grad­u­ate Le­gal Ed­u­ca­tion Cer­tifi­cate (LEC) from the Hugh Wood­ing Law School an av­enue to be ad­mit­ted to prac­tice law. 

Cit­i­zens who ob­tain post-grad­u­ate qual­i­fi­ca­tions in the Unit­ed King­dom or an­oth­er Com­mon­wealth ju­ris­dic­tion and are ad­mit­ted to prac­tice in those coun­tries, qual­i­fy un­der the sec­tion af­ter com­plet­ing a short six-month course at the law school in­stead of the com­pet­i­tive two-year LEC pro­gramme, which has lim­it­ed spaces but is open to all CARI­COM na­tion­als. 

In his judg­ment, Kokaram ac­knowl­edged that there were le­git­i­mate con­cerns which the leg­is­la­tion sought to ad­dress in­clud­ing, lim­it­ed spaces at the law school and the need to de­vel­op this coun­try’s le­gal fra­ter­ni­ty. 

How­ev­er, he sug­gest­ed that they were not jus­ti­fi­able as he ques­tioned why there was a dis­tinc­tion be­tween T&T cit­i­zens and CARI­COM na­tion­als. 

Kokaram al­so not­ed that the gov­ern­ment ad­mit­ted that the leg­is­la­tion of­fend­ed CARI­COM treaties of which T&T is a par­ty, but claimed that it was done to help build a cadre of lawyers in T&T.

In his judge­ment, Kokaram de­cid­ed to strike down the leg­is­la­tion as op­posed to amend­ing it to in­clude CARI­COM na­tion­als. 

In­stead, he ad­vised Par­lia­ment to amend the leg­is­la­tion or ap­peal the de­ci­sion. AG’s Of­fice chose the lat­ter op­tion. 

Kokaram’s de­ci­sion did not af­fect at­tor­neys who were ad­mit­ted be­fore it was de­liv­ered as it had no ret­ro­spec­tive ef­fect. 

His de­ci­sion main­ly af­fect­ed stu­dents who com­plet­ed their ex­ter­nal Uni­ver­si­ty of Lon­don LLB pro­grammes at pri­vate ter­tiary in­sti­tu­tions such as the In­sti­tute of Law and Aca­d­e­m­ic Stud­ies (ILAS) and Acad­e­my of Ter­tiary Stud­ies (ATS). 

Such stu­dents are usu­al­ly forced to com­plete their post-grad­u­ate stud­ies in the UK as places at the Hugh Wood­ing Law School are hard to come by and grad­u­ates of the Uni­ver­si­ty of the West In­dies (UWI) have di­rect ac­cess. 

The Reg­is­trar of the Supreme Court was rep­re­sent­ed by Ian Ben­jamin, SC while Fyard Ho­sein, SC, led the AG’s Of­fice le­gal team.