Judge: Shocking betrayal by PP Government over Point Fortin highway review

A "shocking betrayal" was how a High Court judge described the People's Partnership administration reneging on a promise to abide by the findings of a study on the construction of part of the San Fernando-Point Fortin highway.

In a written decision on Monday, Justice James Aboud held that the legal challenge of environmentalist Dr Wayne Kublalsingh and the Highway Reroute Movement (HRM) against the Debe to Mon Desir portion of the highway disclosed “egregious conduct on the part of the Government.”

He also labelled as “shocking betrayal” and “unconscionable” the broken promises of the Kamla Persad-Bissessar government to Kublalsingh and the HRM, which was made up mainly of homeowners who stood to lose their property.

“The first promise of a review was made by a person no less than the prime minister. This surely must have been received as a promise coming from a believable and genuine source. The promise was repeated on other occasions by another minister of government and other public officials.

"It seems to me that these representations were disingenuously made for the purpose of gaining a tactical advantage and diffusing a complex predicament,” Aboud said.

He ruled that the State breached Kublalsingh and the HRM’s legitimate expectation of a meaningful review and that the People’s Partnership regime would abide by the report of former independent senator Dr James Armstrong.

He also described as a “travesty and a sham” the events that unfolded when the Armstrong report was presented.

“The entire exercise resulted in a report that amounted to a rubber-stamping and not a meaningful review of the policy that the HRM and the claimants opposed,” Aboud said.

He said it took Dr Kublalsingh’s hunger strike – he went on two – and the possible catastrophe of his death to trigger the review.

“ Again, the actions of the Government in disregarding the HRC recommendations were a grievous departure from a formal assurance. Having spent over $700,000 for the HRC Report, it is unconscionable that the Government should have decided to entirely disregard its recommendations.”

He also added, “The State ought to strive to embody the nation’s highest moral and ethical principles in all that it says and all that it does. In effect, the actions of the Government appear to have been an attempt to outmanoeuvre Dr Kublalsingh and the HRM by any means necessary in order to facilitate the continued construction of the highway as originally conceived.”

In his decision, in which he granted several declarations, Aboud also ordered the State to compensate Kublalsingh and six members of the HRM a total of $500,000 for the breaches to their constitutional rights.

He also ordered that Kublalsingh should receive $50,000 for wrongful arrest, assault, battery and false imprisonment and resident Elizabeth Rambharose will receive $15,000 for assault and battery.

Also coming in for condemnation by the judge was former national security minister Jack Warner, who gave the order to the army to destroy the HRM’s protest camp and arrest Kublalsingh and some of the group’s members on June 27, 2012. Kublalsingh was also arrested for breaching the peace.

“I get the impression that Mr Warner’s decisions were meant to demonstrate the brute force of the State and its intolerance of the HRM’s persistent dissent.

“The citizenry has a right to express its dissent by any lawful means. Nothing has been adduced before me to prove that the presence of the protest camp was unlawful, whether in terms of its location or its activities,” Aboud said, as he found that the request of Warner to the chief of defence staff breached the separation of powers under the Constitution in a manner contrary to the rule of law.

“The dawn raid on a non-violent protest camp, occupied at the time by one or two unarmed, middle aged men without a notice to quit, or any lawful process save for the wishes of a minister of government, would have been traumatising and shocking to the HRM and the claimants,” Aboud said.

The judge said the protest camp had become a symbol of defiance, by a movement that was focused on increasing the public’s attention to its cause.

He said while one of the police’s functions was traffic management, it was their duty to keep the traffic flowing.

“They have no right to demolish the shop with the exciting shop window that is attracting so much attention.

"I think that the true purpose of the operation was to swiftly remove the protestors from the eyes of the public, and in so doing, to silence the expression of their dissent. The right to freedom of expression is protected in section (4)(i) of the Constitution,” Aboud said.

Work on the Point Fortin Highway came to a halt in 2016 and its main contractor, Brazilian firm Construtora OAS, was fired from the $7 billion project.

In 2018, a new contract was expected to be awarded and work on the highway project was expected to resume shortly after. The project has been divided into several packages and the total cost is $91 million.

Kublalsingh staged two hunger strikes in an attempt to engage the State to change the route of the extension of the Solomon Hochoy Highway to Point Fortin.

Speaking after the judge’s ruling on Monday, Kublalsingh had one request: “Sit and talk with us.”

He has since mounted another legal challenge over the construction of the Debe to Mon Desir portion of the highway, in which he is seeking an injunction from the Appeal Court on claims that the State is in breach of land-acquisition laws. The matter is expected to come up for hearing on November 5.

Kublalsingh and the HRM, who were represented by Senior Counsel Ramesh Lawrence Maharaj, Fyard Hosein, Rishi Dass, and Anil Maraj, filed the lawsuit on August 3, 2012.

The State was represented by Russell Martineau SC and Deborah Peake, SC, Kelvin Ramkissoon, Shastri A Roberts, and Kelisha Bello, Kendra Mark and Ryanka Ragbir.