Martineau: EOA flawed

Despite the enactment by Parliament of the Equal Opportunity Act (EOA) and its proclamation,  no steps had been taken to appoint the Commission and the Tribunal, since the act was unconstitutional and flawed in a number of respects, said attorney for the State, Russell Martineau SC, yesterday. Martineau insisted that any appointment to the EOA’s Commission or Tribunal would have been illegal. Martineau made the observation while responding to submissions made by Ramesh Lawrence Maharaj SC, in a constitutional motion filed on behalf of former Caroni workers and several visually impaired persons, who are challenging Government’s delay in appointing the EOA’s Commission and Tribunal.

Initial arguments were heard before Justice Gregory Smith in the High Court, who dismissed the motion. It is against Justice Smith’s decision that the workers now petition the Appeal Court. Hearing the appeal were Chief Justice Satnarine Sharma and Justices Ivor Archie and Allan Mendonca. The court has reserved its judgment for a date to be announced. Included in Maharaj’s legal team were Rikki Hernanan, Darrel Allahar, Alvin Ramroop and Vijaya Maharaj. Challenging Maharaj’s contention that the State cannot “disown” its own legislation by confronting it before the court, Martineau submitted that the supremacy of the Constitution has effect whether an inconsistent law is brought to the attention of the court by an applicant, or a respondent in a constitutional proceedings.

Martineau, leading Deborah Peake, Karlene Seenath, Sean Julien and Carol Soverall, said the principal area of unconstitutionality of the act is that concerning the Tribunal. Section 41 of the act establishes the Tribunal as a superior court of record. However, the lay assessors, who are members of the Tribunal, have no security of tenure and the provision which relate to their appointment, removal and terms and conditions of service may be altered by a simple majority of  Parliament. “This is in breach of the doctrine of separation of powers and the independence of the Judiciary which underpins the Constitutional and is, therefore, inconsistent with the Constitution, “ Martineau added.