Judge grants conditional suspension of Legal Profession ruling

JUSTICE Vasheist Kokaram has granted a conditional suspension of his declaration that section 15(IA) of the Legal Profession Act (LPA) is unconstitutional as it discriminates against non-nationals who want to practise law in TT.

The conditional suspension is until October 4, or until an appeal is filed. A full suspension, he said, was better suited for the appellate court.

The effect of the judge’s ruling was that no one, including TT nationals, could apply under section 15(1) of the LPA to be admitted to practise in TT without a legal education certificate from the Hugh Wooding Law School until the law was amended by Parliament or the ruling was successfully appealed. Section 15(1A) of the LPA allowed TT law students an alternative avenue to enter the profession, without the requirement of obtaining a legal education certificate from the Hugh Wooding Law School if they underwent their six-month in-service training under a practicing attorney, once they had the Legal Practice Course (LPC) and the Bar Professional Training Course (BPTC) from London.

The judge was asked by the Attorney General and Law Association (LATT) for a suspension of his declaration because of the effect it had on hundreds of prospective attorneys who were in possession of their LPC and who were currently doing their in-service training, as well as law students who were in various stages of their Bachelor of Law studies.

And, although the judge suspended his ruling until October, those affected law students are still in limbo since the Registrar of the Supreme Court has been restrained from processing applications of prospective attorneys for admissions later this year.

As part of his suspension, the judge added an additional order that the parties file in court a written undertaking of the AG’s commitment to finding a legislative solution to the issue of the unconstitutionality of section 15(IA) of the LPA, mindful of the recommendations he made in his original judgement last week.

His new order also directs the parties to establish a working committee of stakeholders to examine his recommendations, submit a plan and provide a report on quantitative and qualitative demands on admissions to practice law in TT.

The plan has to be filed by October 4. However, attorney for the AG, Fyard Hosein,SC, argued that the fundamental principle of separation of powers prevented the court from mandating the State to find legislative solutions in keeping with the court’s ruling.

“The court cannot tell the executive what the solution is,” he held.

Kokaram said his judgement was a “call for action” by the stakeholders.

“While of course each case depends on its own facts, the silver lining for this court must be that when it comes to enacting the necessary legislation: ‘where there a will, there is a way.’

“To this end, I repeat…I would only be prepared to suspend this order if there is the legislative will to embrace this opportunity to fix the problem.”

He pointed to what, he said, were two extremes by the State of dragging its feet to rectify or implement legislation in conformity with its constitutional obligations and acting in lightning speed to enact legislation for a specific limited purpose as he cited the cases of the municipal police officers who were ordered to receive $54 million in compensation in their 15-year legal battle over equal pay and that of the one-day convening of Parliament to repeal section 34 of the Administration of Justice Act which would have entitled the Piarco airport fraud accused to have their cases discharged without a trial.

Kokaram said there was “no chaos or anarchy or legislative vacuum” created by his ruling as all it simply does was require all persons to obtain an LEC before being admitted to practice, consistent with the Council of Legal Education (CLE) Act, the CLE Agreement between Caricom countries, and the rule of law.

“There is no disaster in the interim,” he said, adding that it remained open to the legislature to remove the discriminatory effect of section 15(IA) or bring the section in line with its obligations under the CLE Act and Agreement.

Kokaram also described as “alarming” the position of the State that it was entitled to to ignore its international obligations when enacting its own law. “If that is the case, then it begs the question why are we here in the first place? Section 15(1A), by that argument, could have accommodated ‘any person’ or ‘Caricom national.’

He was also critical of the State on the request for the suspension, saying it seemed “ambivalent” to its purpose as he rejected that it was to advance an appeal.

“That takes us nowhere closer to solving this problem…Further it serves as absolutely no impetus to the legislature to do anything with respect to section 15(1A) for possibly the next three years.

“Not one small step, not even one inch taken by the Defendant to set about restoring the constitutionality to any alternative pathway to accommodate those affected by the order, not even to consider it as a viable option,” he added.

“It is manifestly obvious that section 15(1A) is but a piece of the larger question of Caribbean legal education and modernising the system of certification.”

Kokaram emphasised that a constitutional court must not shirk from its duty to strike down an unconstitutional law as invalid.

“Any law made by Parliament can be struck down for contravention of the provisions of the Constitution. It is the court’s duty to uphold the Constitution against contraventions by either executive or parliament and grant suitable relief to uphold the rule of law and craft creative remedies,” he said.

“A call for action by a constitutional court should sound as a clarion call to the other arms of State not to be dissonant by drawing power-lines in the sand, but by embracing the opportunity to collaborate and enlist the joint resources and powerful machinery of the State to serve a greater cause of constitutional justice.

“Even though we talk of separation of powers there must be a degree of comity among these powers to ensure the smooth operation of our democracy,” he added.

In his ruling, the judge also said he was not provided with evidence on the number of affected people, the capacity of the HWLS, the waiting periods, the capacity of the six-month programme or the flexibility of its syllabus to accommodate LPC students.

Speaking after Kokaram’s ruling on the suspension, Reagan Rowans, principal of the Institute of Law and Academic Studies (ILAS), one of three private law schools which offer the Bachelor of Laws degree from the University of London, and whose students go on to obtain their LPC before being admitted to practice locally, said they welcomed the temporary reprieve.

He said ILAS was in full support of an appeal and for the issues raised in Kokaram’s ruling last week, to be fully ventilated in the courts.

Rowans also said they will embrace any resolution, including legislative intervention, because of the level of anxiety among external law students.

He said the three private law schools will seek to join the matter as an interested party and will meet with the relevant stakeholders for a workable solution as suggested by the judge in hopes of moving the court to grant a two-year suspension or until the matter is resolved at the appellate courts.

Kokaram’s ruling on section 15(1A) of the LPA was the result of the constitutional claim of Grenada-born, St Lucian prospective attorney Dianne Jhamilly Hadeed, who asked that he strike down the section on the basis that the law was discriminatory and placed an additional burden on a non-national to seek admission to the Hugh Wooding Law School, write an entrance examination, or wait at least additional years to be called to the bar in England and then seek to get their certificate of fitness before being admitted to the local Bar.

Kokaram granted Hadeed the declarations she sought but stopped short of changing the law. That, he said, was for Parliament to do.

Hadeed sought to be admitted to the local Bar and was in the process of completing her six-month in-service training, but was told by the Registrar of the High Court she could not be admitted.

Hadeed was represented by Christophe Rodriquez, Raisa Caesar, Sparkle Kirk and David Francis, while Fyard Hosein,SC, represented the Attorney General; Deborah Peake,SC, Ravi Heffes-Doon and Tamara Toolsie represented the Law Association and Ian Benjamin, Pierre Rudder and Michelle Benjamin represented the Registrar of the Supreme Court. The association and the registrar were interested parties in the matter.