Equal Opportunity Act unlawful

JUSTICE Gregory Smith ruled yesterday that the Equal Opportunity Act 2000 was unconstitutional in several respects. He said there were serious doubts as to the constitutionality of some of the other provisions. The Equal Opportunities Bill was piloted by the then UNC Attorney General Ramesh Lawrence Maha-raj, and passed in both Houses of Parliament before it was proclaimed by former President Arthur NR Robinson. Last year, Maharaj filed a constitutional motion on behalf of three groups in society against the failure of the Government to appoint an Equal Opportunity Tribunal to hear complaints from citizens. The groups comprised the physically challenged, the visually impaired and an employee of Caroni (1975) Limited.

Maharaj, who led Darrell Allahar and Rikki Harnanan, contended that the failure/refusal or neglect of the Government in establishing the tribunal deprived his clients of their right to the due protection of the law under the constitution. He also argued that the failure of the Government to implement the Act ran contrary to the provisions of Section 14 (6) of the constitution because it rendered nugatory the special jurisdiction conferred by parliament to the High Court and Court of Appeal under the Act. Russell Martineau SC, who appeared with Deborah Peake for the Attorney General, submitted that the Act was unconstitutional in several respects. He said the Act established the Equal Opportunity Tribunal as the body to hear and determine complaints of discrimination referred to it by the Equal Opportunity Commission and to grant appropriate relief to aggrieved persons.

Martineau contended that the manner of the establishment of the tribunal as well as the grant to it under the Act of some of its powers, violated the principle of the separation of powers. Martineau pointed out that under the Act, the Judicial and Legal Services Commission was the body to appoint the chairman of the tribunal. He submitted that the Judicial and Legal Services Commission has no power under the constitution to do this and therefore cannot proceed to appoint a chairman of the tribunal. Justice Smith said there was nothing in the constitution, neither is there any principle in law, which prohibits the State from proferring the unconstitutionality of the Act of Parliament in defence to this constitutional motion. After finding that the Act was unconstitutional, Justice Smith said the protection of the law does not and cannot include the right to enforce or to insist on the enforcement of a law which is itself inconsistent with the constitution.

Justice Smith said the State was not bound to enforce the law which on “very good and substantial grounds”, it found to be unconstitutional. Justice Smith dismissed the motion brought by the applicants and ordered them to pay costs to the State fit for a senior and junior counsel. Maharaj then indicated to the judge that he planned to appeal the ruling. Within an hour, the appeal was filed in the Court of Appeal. Following the judgment, Maharaj told the media that the decision was wrong and promised to go all the way to the Privy Council if necessary. “The State cannot disavow its own legislation. If the State finds the law to be bad, it has to go to Parliament to amend or repeal it. The Court cannot deny individuals protection of the law by accepting a plea of defence by the State that the law is unconstitutional.”