Comments by the Government of Trinidad and Tobago on the Concluding
Observations of the Human Rights Committee
1. The Government of Trinidad
and Tobago, having considered the Concluding Observations of the Human
Rights Committee contained in document CCPR/CO/70/TTO of 3 November 2000,
wishes to express satisfaction at the positive remarks made concerning
its implementation of the Covenant in Trinidad and Tobago.
1. Positive aspects highlighted by the Human Rights Committee
2. The Committee welcomed
the setting up of the Human Rights Unit in the Ministry of the Attorney-General
and Legal Affairs and the initiatives taken by the Unit to improve the
protection of human rights, particularly its activities in clearing the
backlog of reporting under the Covenant and other human rights instruments
to which Trinidad and Tobago is a State party. The Committee also commended
improvements to the remedies provided in cases of domestic violence, together
with specialized personnel now available to assist victims, including
the Domestic Violence Unit set up by the Ministry of Culture and Gender
Affairs. The Committee took note with satisfaction of the institution
of the independent Police Complaints Authority and looked forward to a
rapid proclamation of the Act extending its powers. The Committee also
noted with satisfaction that the extension of legal aid, both in terms
of geographical distribution and of the tribunals before which it is available,
as well as the raising of fees so as to attract higher quality advocates,
increases compliance with article 14 (3) (d) of the Covenant.
3. However the Government
of Trinidad and Tobago notes with concern the failure of the Committee
to fully acknowledge many other significant measures implemented by the
State party to further the protection of the rights contained in the Covenant.
Although these measures were brought to the attention of the Committee,
they have been omitted from mention in the Committee's Concluding Observations.
2. Some of the positive aspects ignored by the Human Rights Committee
4. As the Government has urged
in its supplementary answers provided to the Committee, it is quite wrong
for the Committee to disregard legislative measures which are being taken
by the Government to comply with the articles of the Covenant, but which
are not yet law, or which if they are law, have not yet been implemented.
It is not unusual that after Bills are passed steps have to be taken to
put the necessary infrastructure and other administrative measures in
place to implement the Bill. Governments cannot in advance of the decision
of Parliament provide the resources and the other necessary structures
to implement a law because the Parliament may vote against the law. The
Human Rights Committee has a duty under article 40 of the Covenant to
consider what measures Governments take to implement the Covenant. Measures
would include the steps the Government takes to have the proposal formulated
in all of its pre-legislative processes or to have the Bill debated in
Parliament or to have the Bill implemented after it is passed in Parliament.
5. Some of the significant
progressive measures implemented by the State party, which were not mentioned
by the Committee in its Concluding Observations include the following:
6. Article 2 (a), paragraph
3 (a) of the Covenant requires that each State party to the Covenant should
undertake to ensure that any person whose rights or freedoms are violated
shall have an effective remedy, notwithstanding that the violation has
been committed by a person acting in an official capacity. Substantial
progress has been made by the State party in this regard with the recent
enactment of the Judicial Review Act, 2000. This Act was proclaimed on
6 November 2000 and is now in force. The purpose of this legislation is
to set out the substantive law governing judicial review applications
and to introduce public interest litigation. This legislation permits
non-governmental organizations and persons who were not directly affected
by a public wrong to approach the court on behalf of poor persons to seek
redress for them. This removes the impediment of locus standi for
granting relief to individuals for public wrongs. Under the Act, the court
does not necessarily have to be approached by formal court proceedings.
It can be approached by means of a letter.
7. Article 3 of the Covenant
aims at ensuring the equal right of women to the enjoyment of all civil
and political rights provided for in the Covenant. These relate inter
alia to the prevention of discrimination on the ground of a person's
sex. State parties to the Covenant are required to report on the legislative,
administrative and other measures they have taken to implement in concrete
terms the principle of equality of men and women. Consistent with the
requirement of this Article, the Government has enacted the following
8. The Maternity Protection
(Amendment) Act, No. 4 of 1998 was enacted to ensure that women are not
discriminated against on the grounds of pregnancy and to safeguard their
effective right to work. It provides for maternity leave with pay; protection
against dismissal on the grounds of pregnancy and the right to return
to work on the same terms and conditions after maternity leave.
9. The Cohabitational Relationships
Act, No. 30 of 1998, was enacted to protect the rights of persons who
enter into cohabitational or de facto arrangements, without a marriage
contract. There is a high incidence of common law or de facto relationships
in this jurisdiction and the existing law had failed to recognize and
to provide remedies to meet the social and economic consequences which
attend the breakdown of such relationships. This legislation allows a
man or a woman involved in a cohabitational relationship to apply to the
High Court for relief in relation to property and maintenance.
10. The Sexual Offences (Amendment)
Act, 2000 which came into force in September of this year was introduced
in the face of an alarming increase in sexual crimes against women. This
legislation as amended redefines the offence of rape in gender neutral
terms and has increased the penalty for rape committed in aggravated circumstances.
It also empowers the court to order a person who is convicted of an offence
to pay the victim adequate compensation. Under this legislation, the law
has been amended so that a husband or cohabitant may now be charged with
the offence of rape or grievous sexual assault of his wife or a cohabitee
in the same way as any other person. The amendment also provides for the
fulfilment of notification requirements of convicted sex offenders at
police stations in the district in which they reside to enable the police
to keep track of known sex offenders, thereby providing greater protection
to the national community.
11. Article 9 (3) of the Covenant
provides that anyone arrested or detained on a criminal charge shall be
entitled to trial within a reasonable time. Trinidad and Tobago, consistent
with the requirements of this Article, has made significant progress in
reducing the delays in the administration of criminal justice. Administrative
measures implemented over the period 1996-1999 which have achieved the
purpose of ensuring there is no delay include the following:
Increasing the number of High
Court and Court of Appeal Judges and Magistrates, including support staff;
Providing computer-aided transcription
(CAT) services at five criminal courts, the Court of Appeal in Port of
Spain and the Supreme Court;
Funding judicial training;
The establishment of a Department
of Court Administration in the Supreme Court and provision of appropriate
staffing for that Department;
The upgrading of computer
facilities at the Supreme Court;
The introduction of a pilot
programme of Judicial Research Assistants in the Supreme Court;
The refurbishment of 16 Magistrates'
Courts throughout the country and the construction of new Magistrate's
12. Article 10 (1) requires
that all persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the human person. Article
10 (3) states that the penitentiary system shall comprise treatment of
prisoners the essential aim of which shall be their reformation and social
rehabilitation. Juvenile offenders shall be segregated from adults and
be accorded treatment appropriate to their age and legal status. Article
14 provides further that in the case of juveniles, the procedure should
be such as will take into account their age and the desirability of promoting
their rehabilitation. In this regard, the Government by legislation has
introduced alternatives to imprisonment in the form of the Community Service
Orders Act, 1997 and the Community Mediation Act No. 13 of 1998. These
pieces of legislation recognize the fact that petty and first time offenders
can be adequately punished and indeed, rehabilitated within the community,
thereby reducing the overall problem of overcrowding in the prisons. The
Community Mediation Act only recently came into force as the administrative
and structural mechanisms first had to be put in place. Under that Act
mediation is available to first time offenders who commit any of a scheduled
list of non-serious, summary offences. Quite significant also is the extension
of the Act to mediation in civil matters. Parties can mediate on any petty
civil matter and certain matrimonial and family matters. In criminal matters,
either the offender or the victim may apply to the Court for mediation.
In the interest of rehabilitating the offender, the victim may require
that the offender participate in an educational or rehabilitative programme.
The Ministry of the Attorney-General has worked with the Ministry of Social
Development in the training of mediators and the establishment of mediation
centres. Seminars have been arranged to sensitize magistrates, police
officers and prison officers on the purpose, practices and outcome of
mediation as an alternative to litigation. Mediation Centres have also
been established in three locations in the country on a pilot basis at
13. Also significant in relation
to article 10 of the Covenant is that the Government has caused the Law
Commission to prepare a paper on penal reform. Based on the recommendations,
appropriate legislation has been drafted for enactment into law. This
legislation when enacted will substantially improve the protection of
the rights under articles 7 and 10 of the Covenant. Some of the proposed
legislation include the following:
The Summary Offences (Amendment)
Bill, 2000 recognizes the need to treat young offenders in a more sensitive
and humane manner. The legislation seeks to empower the Director of Public
Prosecutions to divert first time petty offenders away from the traditional
court process and penal institutions and into community based rehabilitative
programmes. Once enacted, this legislation would complement the newly
introduced legislative systems of Community Service Orders and Community
The Prison (Amendment) Rules,
2000 seek to amend the existing Prison Rules made under the West Indians
Prisons Act, 1838 of the United Kingdom which came into effect in Trinidad
and Tobago in August, 1943. The amendment Rules, which are inspired by
certain provisions of the United Nations Standard Minimum Rules for the
Treatment of Prisoners, focus inter alia on the conditions of accommodation
in the prison, punishment and the internal complaint procedure for prisoners;
The Prisons (Amendment) Bill,
2000, which has also been drafted under this package of legislation, seeks
to amend the Prisons Act (Chap. 13:01) to increase the number of Inspectors
of Prisons which the Minister of National Security can appoint;
The Youthful Offenders (Attendance
Centres) Bill, 2000 seeks to provide custodial sentencing alternatives
for the young offender. The Bill makes provision for the establishment
of Attendance Centres which first time and other offenders under the age
of 21 can be required to attend for a specified number of hours per day
under supervision. This measure may pre-empt the committal of young offenders
to industrial schools.
14. Article 19 of the Convention
refers to the freedom of individuals to seek, receive and impart information
and ideas of all kinds. In this regard, the Committee has omitted to comment
favourably on the introduction by the present Government of the new Freedom
of Information legislation. This legislation represents a watershed development
in the relationship between the Government and the people of Trinidad
and Tobago. Previously there was a culture of secrecy in the public service.
This Act now gives all members of the public a statutory right to know
and a general right to access information in documentary form in the possession
of public authorities. Under the Act all public authorities are required
to cause to be published in the official Government publication, a statement
of the documents that are available and the place or places at which copies
of such documents may be inspected or purchased. The statement of documents
must be updated for publication every year. This right of access is a
legally enforceable right. Each public authority will have a designated
officer who will undergo training as to how to deal with requests from
members of the public and the media. Earlier this year, a meeting was
organized by the Ministry of Public Administration to sensitize the public
and the media on the new law. Committees have been set up in various Ministries
to effect the implementation of the Act. The Ministry of Public Administration
has trained some 186 officers representing all Ministries and statutory
authorities to deal with requests from with members of the public. That
Ministry has also prepared a handbook explaining the implications of the
Act. The Act is expected to come into force by February 2000.
15. Article 24 of the Covenant
refers to the right of every child to such measures of protection as are
required by his status as a minor, on the part of his family, society
and the State. The present Government has made significant progress in
the implementation of a comprehensive package of legislation dealing with
social reform in respect of children, families, older persons and socially
displaced persons. This was introduced against a background of problems
including the growing number of street children; the alleged abuse and
neglect of children in Children's Homes; the unsuitable and unworkable
adoption process for children; the absence of a legal framework to facilitate
children who require temporary care with families other than their own;
the increasing number of socially displaced persons on our streets and
the ill-treatment of the elderly in our homes for the aged. The new legislation
relating to children includes:
The Children (Amendment) Act,
No. 68 of 2000 which brings the present legislation pertaining to children
in line with the United Nations Convention on the Rights of the Child.
Under this legislation the definition of "child" has been amended to raise
the upper age limit of a child from fourteen to eighteen. The Bill also
abolishes the right of a court to order corporal punishment as a penal
sanction against children and prohibits teachers from inflicting corporal
punishment against children in schools;
The Adoption of Children Act,
No. 67 of 2000 which repeals the existing Adoption of Children Act, Chapter
46:03 and regulates the procedure governing adoption. This legislation
incorporates recommendations for reform of the adoption laws submitted
by various interest groups in the society. The legislation eliminates
the hardship previously experienced by persons resident abroad who wished
to adopt children in Trinidad and Tobago. It also eliminates the discriminatory
practice of not making an adoption order where the sole applicant is a
male. The new Act has introduced provisions for the disclosure of birth
records of adopted children and ensures that where arrangements or
decisions are made relating
to the adoption of a child, the welfare of the child is safeguarded and
promoted, with the wishes and feelings of the child being taken into consideration;
The Children's Community Residences
Foster Homes and Nurseries Act, No. 65 of 2000 makes provision for the
monitoring, licensing and regulating of children's homes, rehabilitation
centres, and nurseries by the proposed Children's Authority. The new legislation
sets out specific licensing, monitoring and regulating requirements which
must be met and makes provision for a system of foster care. Existing
children's homes and nurseries will therefore be more tightly regulated
and an emphasis placed on standards of care and rehabilitation. The Authority
is required under this Act to inspect all residences prior to the issue
of a residence licence, to ascertain its suitability for the purpose;
The Children's Authority Act,
No. 64 of 2000, establishes a Children's Authority to inter alia
monitor community residences, foster homes and nurseries; to investigate
complaints of staff, children and parents or guardians with respect to
any child in the care of a residence, home or nursery; to issue, revoke
and withdraw licences of community residences and nurseries; to investigate
complaints or reports of mistreatment of children in homes and to act
as an advocate for the rights of all children in Trinidad and Tobago.
Under the Act the Authority is empowered to receive and temporarily assume
parental rights and obligations with respect to any child brought to its
attention as being in need of care and protection. The Authority will
be responsible inter alia for keeping track of all children at
risk and appearing before the Court to ensure that they are adequately
and suitably cared for and protected.
16. The above-mentioned pieces
of legislation have been approved by Parliament and are expected to come
into force on the 31 January 2001.
17. Article 26 of the Covenant
provides that all persons are equal before the law and are entitled without
any discrimination to equal protection of the law. Consistent with the
requirements of this article 26, the Government in addition to enacting
Equal Opportunity legislation has passed a Miscellaneous Laws (Spiritual
Reform) Act, 2000 in an effort to decriminalize existing provisions of
Trinidad and Tobago's statute law, which have been identified as discriminatory,
in that they hampered the freedom of the Shouter Baptist and Orisa Baptist
religious groups in the practice of their religions. This legislation
amends the Summary Courts Act to remove references to "obeah" and the
offence of the "practice of obeah" and substitute a much wider offence.
The offence of the beating of drums and other musical instruments has
also been removed when it occurs in the context of a religious ceremony
or in a place of worship. This new legislation is now in force.
Democracy and Good Governance
18. In addition to the legislation
mentioned above, the Government has taken a significant step in the implementation
of legislation to ensure transparency and accountability in government.
In the face of calls for reform of the existing integrity laws, the Government
caused the Law Commission to prepare a Green Paper entitled "Integrity
in Public Life - Towards the Reform of the Law". The Government took the
initiative in having this Green Paper placed before a Joint Select Committee
of Parliament for its views and recommendations. In accordance with the
recommendations of that Joint Select Committee, a new Integrity in Public
Life was drafted. This new Act, which has replaced the Integrity in Public
Life Act, 1987, constitutes a tremendous improvement to the existing legislation,
establishing higher standards of accountability and transparency. The
new Act has widened the category of persons falling within the jurisdiction
of the Act and has strengthened the Commission's powers in the areas of
investigation, prevention and corruption. It also affords the Commission
greater access to information and the power to call for documents. The
Act imposes heavy penalties for offences involving non-disclosure.
19. Another significant legislative
measure in the promotion of accountability and transparency in public
life is the enactment of the Constitutional (Amendment) No. 3 Bill in
November 1999. This legislation amends the Constitution to enable Select
Committees and Joint Select Committees of Parliament to be appointed to
investigate and report to one or both Houses of Parliament, in respect
of Government Ministries, Municipal Corporations, statutory authorities
and enterprises owned or controlled by the State and Service Commissions
(with the exception of the Judicial and Legal Service Commission) in relation
to their administration, the manner of the exercise of their powers, their
methods of functioning and any criteria adopted by them in the exercise
of their powers. Service Commissions appoint, promote and discipline officers
in the Public Service, the Teaching Service and the Police Service. This
legislation appeals for accountability, transparency and openness in a
free and democratic society. Under this legislation, each Service Commission
is required to submit an annual report on its administration and the exercise
of its powers and its methods of functioning. Further, if a Ministry of
Government, or any part of it, is functioning in a corrupt manner, the
Joint Select Committee can investigate the matter. Under the Constitution,
the Ombudsman does not have the power to inquire into or question the
policy of the Ministry. This legislation gives to the representatives
of the People, the parliamentarians the power to scrutinize government
action and administrative action.
3. Concerns and Recommendations
of the Human Rights Committee - the Government's response
20. In paragraph 7, the Committee
The Committee places on
record its profound regret at the denunciation of the Optional Protocol.
In the light of the continued existence of the death penalty, and despite
assurances by the delegation that proposals to extend the death penalty
have been rejected, it recommends that:
(a) In relation to all
persons accused of capital offences the State party should ensure that
every requirement of article 6 is strictly complied with;
(b) In the event of reclassification
of murder being brought into effect for persons thereafter tried and convicted,
those already convicted of murder should be entitled to similar reclassification,
in accordance with article 15.1; and
(c) The assistance of
counsel should be assured, through legal aid as necessary, immediately
on arrest and throughout all subsequent proceedings to persons accused
of serious crimes, in particular in cases carrying the death penalty.
In respect of the Committee's
regret at the denunciation by Trinidad and Tobago of the first Optional
Protocol to the International Covenant on Civil and Political Rights,
Trinidad and Tobago was happy to be a party to the first Optional Protocol
subject to its reservation that the Committee had no jurisdiction in respect
of capital cases. It was the Committee itself, by its decision in the
case of Rawle Kennedy, where by a majority of nine to four it declared
the reservation of Trinidad and Tobago invalid, which left the Government
of Trinidad and Tobago with no alternative but to withdraw completely
from the Protocol.
21. Regarding the recommendations
made by the Committee in respect of the continued existence of the death
penalty in Trinidad and Tobago:
The State party strictly complies
with article 6 of the Covenant and the Committee has no legitimate basis
on which to allege, suggest or infer otherwise;
In the event of classification
for the crime of murder being introduced, the effect on those already
convicted of murder will be a matter to be considered by the Advisory
Committee on the Power of Pardon;
The recommendations of the
Committee that the State ensures the availability of legal aid to those
accused of crimes immediately on arrest and throughout all subsequent
proceedings, are already in place. The decision whether to grant legal
aid in criminal matters lies strictly within the discretion of the Courts.
Magistrates grant Legal Aid in all Magisterial (Criminal) matters. Applications
can be made either to officers of the Authority who visit the prisons
to receive applications or directly to the Court. Magistrates grant legal
aid based upon the information supplied on the relevant forms and they
may request the Director of the Authority to submit a "means report",
on the applicant prior to granting aid;
With respect to criminal matters
in the High Court, a judge of the High Court is empowered to grant legal
aid after reviewing the application of the accused. Applications may be
made directly to the court or to legal aid officers who receive applications
on visits to the prisons. An attorney may be assigned to the applicant
by the judge or authorization to grant legal aid may be given by the judge
to the Authority, which will then assign an attorney. In the Court of
Appeal, legal aid may be granted either by a Court of Appeal Judge or
by a Magistrate, depending on where the application is forwarded (e.g.
Magisterial Appeals). The approval to grant legal aid is usually sent
to the Authority for the assignment of an attorney;
Legal aid is available for
all proceedings in the Supreme Court which includes Constitutional Motions.
However legal aid for Constitutional Motions is only granted when in the
opinion of the Authority the person qualifies for legal aid; a serious
constitutional question arises, and the application is not frivolous,
vexatious or an abuse of the process of the Court;
The Legal Aid and Advice (Amendment)
Act, 1999 has lowered the qualifying income limit for legal aid thereby
increasing the net of persons who qualify for legal aid. It has also widened
the category of matters for which legal aid is now available and increased
the fees payable to legal aid attorneys thereby attracting more experienced
attorneys to represent persons requiring legal aid. Section 11 of the
amendment Act gives the Authority wide powers to develop and operate programmes
for improving its efficiency. The Authority is in the process of implementing
a system in which duty attorneys will be allocated to Magistrates' Courts
throughout the country, especially in rural areas so that these attorneys
can readily assist persons appearing in these Courts by providing immediate
representation and advice. It is hoped that duty officers can provide
advice to needy persons and assist the court in guilty pleas and advice
with respect to consent orders. Plans are also under way to decentralize
the services of legal aid by opening part time district offices in rural
The Government funds the Authority
on a yearly subvention. Annual estimates are submitted and allocations
are usually granted based on the availability of funds. The Authority
has seen an increase from the 1998 to 1999 budget of $2,269,000 to $3.5
million in the 1999-2000 budget. There is an estimated $5 million allocation
in the 2000-2001 fiscal year.
22. In paragraph 8, the Committee
Upon ratifying the Covenant,
the State party accepted obligations under articles 2.1 and 2.2 to ensure
that all individuals subject to its jurisdiction should enjoy Covenant
rights; and, insofar as not already in place, to take the necessary steps
to adopt measures to give effect to those rights.
The State party may not
rely on limitations in its Constitutions as grounds for non-compliance
with the Covenant but should put in place the necessary laws to achieve
The State is aware of its
obligations under the Covenant and takes all the necessary steps, compatible
with Constitutional obligations, to ensure compliance with the Covenant.
However, the Constitution of the Republic of Trinidad and Tobago predates
the accession by the State to the Covenant. The Committee must recognize
that the Constitution is the highest form of law within the State. It
is the authority under which all other laws are made and have their legitimacy.
The Government by acceding to the Covenant cannot alter the domestic law
of Trinidad and Tobago. That is the right of the Legislature. Where there
is conflict between the domestic law of the State and the Covenant the
domestic law will prevail until such time as the Legislature, acting in
accordance with the Constitution, takes steps to amend the law.
23. In paragraph 9, the Committee
The Committee is concerned
that a thorough review of domestic law, to ensure compliance with the
Covenant norms, has not yet been completed.
The State party should,
for example, align the limitations imposed by article 4 of the Covenant
with domestic measures to be taken in cases of public emergency, so as
(a) Comply with the categorization
of an emergency that it must threaten the "life of the nation";
(b) Respect the prohibition
on derogation contained in article 4.2; the State party should establish
that measures permitted under emergency powers are so compatible;
(c) Ensure that any derogations
from the State party's obligations under the Covenant do not exceed those
strictly required by the exigencies of the situation.
The review of domestic law
to ensure compliance with the Covenant is under way and forms part of
the reporting procedure now being undertaken by the State. With specific
reference to article 4 of the Covenant - Public Emergencies - the emergency
powers provisions of the Constitution of the Republic of Trinidad and
Tobago provide a safeguard in respect of any laws made during a period
of public emergency which are inconsistent with the human and fundamental
rights provisions contained in sections 4 and 5 of the Constitution.
24. Article 7 (3) of the Constitution
of the Republic of Trinidad and Tobago expressly provides that such laws
must be shown to be reasonably justifiable for the purpose of dealing
with the situation that exists during that period of emergency. This provision
means that all inconsistent legislation can be challenged before the High
Court and if shown to be not reasonably justifiable, such legislation
will be struck down. Appeal will lie from the High Court to the Court
of Appeal and then to the Judicial Committee of the Privy Council in London.
This right of challenge extends to laws made in breach of all the fundamental
and human rights provisions of the Constitution and is fully effective
as the Courts of Trinidad and Tobago are not suspended during a period
of public emergency but continue to exercise their full jurisdiction.
25. Even in times of emergency
a person can only be arrested and deprived of liberty in accordance with
due process of law. The Judicial Committee of the Privy Council in cases
from the Caribbean dealing with states of emergency recognized that States
have the power to deny fundamental rights and freedoms, but only in accordance
with due process of law. Similarly, Parliament has the power to restrict
and regulate the enjoyment of fundamental rights during public emergency
if the Parliament considers that the peace, order and good government
of the State at a particular time demands it.
26. Article 4 of the International
Covenant on Civil and Political Rights provides that during periods of
public emergency State parties may only derogate from their obligations
under the Covenant to the extent strictly required by the exigencies of
the situation and to the extent that such measures do not involve discrimination.
There can be no derogation from certain rights contained in the Covenant.
Although not couched in the same wording, the provisions contained in
section 7 (3) of the Constitution of Trinidad and Tobago are for all practical
purposes compatible with article 4 of the Covenant.
27. Two periods of public
emergency are covered in the Report of the Republic of Trinidad and Tobago
under consideration before the Committee. The function of the Committee
in respect of article 4 is to ascertain whether, during those periods
of public emergency, any derogation incompatible with article 4 was committed
by the State party. It is not the function of the Committee to rewrite
the Constitution of Trinidad and Tobago or to speculate or hypothesize
as to if and how during a state of emergency the provisions contained
in section 7 (3) of the Constitution of Trinidad and Tobago may lead to
a breach of article 4 of the Covenant. The evidence shows that during
the attempted coup in Trinidad and Tobago in 1990, the emergency powers
provisions of the Constitution were tested and found to operate in full
accordance with the obligations of the State under the Covenant.
28. In paragraph 10, the Committee
The Committee is concerned
at the lack of remedies under domestic legislation, including the Constitution,
for victims of discrimination within the full ambit of articles 2.3 and
26 of the Covenant.
The State party should
ensure that remedies are available for the full range of discriminatory
situations falling within the protection given by those articles and should
include in its next report information on the extent to which this has
Article 2.3 provides that
the State party will undertake to ensure that a person whose rights and
freedoms under the Covenant are violated will have an effective remedy.
Article 26 provides that all persons are equal before the law and are
entitled without any discrimination to the equal protection of the law.
In this respect the law shall prohibit any discrimination and guarantee
to all persons equal and effective protection against discrimination on
any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
29. Articles 4 and 5 of the
Constitution mirror many of the rights contained in the Covenant. Section
14 of the Constitution clearly provides that a person who alleges that
any of the provisions of the Constitution have been, are being or are
likely to be infringed in relation to him may apply to the High Court
for redress by way of originating motion. The High Court has original
jurisdiction to hear and determine constitutional motions and is empowered
to declare that the rights of any person, including aliens, have been
contravened by the State. It is also the practice of the High Court to
make an order of monetary compensation against the State in favour of
the victim when a violation of a constitutional right occurs.
30. In relation to Article
26, Parliament has recently enacted the Equal Opportunity Act. The objective
of this Act is to strive for equality of opportunity ensuring that no
individual is excluded from the nation's benefits and resources by prohibiting
discrimination on certain grounds such as sex, race, ethnicity, origin,
religion, marital status and any disability, in the fields of employment,
education, the provision of goods and services and the provision of accommodation.
31. The Equal Opportunity
legislation provides that any person who alleges that he or she has been
a victim of discrimination may lodge a written complaint with the Equal
Opportunity Commission setting out details of the alleged act of discrimination.
The Commission is required to investigate each complaint lodged with it.
The Commission has the power to resolve matters by conciliation. If conciliation
is not appropriate or unsuccessful, the Commission may prepare and publish
a report relating to the investigation with its recommendations. Where
the subject matter remains unresolved the Commission is required, with
the consent of the person making the complaint, to initiate proceedings
before an Equal Opportunity Tribunal. The Tribunal shall be a superior
court of record and shall have all the powers inherent in such a court.
The Tribunal will consist of a Judge of the status of a High Court Judge,
who shall be the Chairman and two lay-assessors. The Tribunal will have
jurisdiction to hear and determine complaints referred to it by the Commission
and to make such declarations, orders and awards of compensation as it
thinks fit. The complainant and the respondent may appear before the Tribunal
with or without legal counsel. Any party to a matter before the Tribunal
will have a statutory right of appeal to the Court of Appeal on the grounds
listed in the Act. The Act is expected to come into force by the 31 January
32. In paragraph 11, the Committee
The Committee urges that
priority be given to all necessary preparations, so as to bring into force
by proclamation at the earliest possible date the Equal Opportunities
Act 2000 particularly in respect to the advancement of women.
In devising a legislative
model for Trinidad and Tobago, it was recognized that it would be ambitious
to attempt to deal with all aspects of discrimination and satisfy all
the interest groups in an initial Act. The Working Paper prepared by the
Law Commission emphasized the need for comprehensive research and analysis
into the existence, nature and extent of discrimination in all areas of
life in order to adequately guide the parameters of any anti-discrimination
legislation. The Paper then proceeded to recommend a "starting model"
upon which we can build. A Joint Select Committee of Parliament appointed
to consider the Law Commission's Working Paper, held extensive consultations
and agreed with the sentiments expressed in the Working Paper on this
issue. In its Report, the Joint Select Committee stated that, "... it
would be impossible to legislate to deal with all aspects of discrimination
and that the best approach would be to formulate legislation which would
constitute a good starting point from which the law can be developed to
suit our needs".
33. Thus, while the Equal
Opportunity Act, 2000 represents a very bold and pioneering move in the
region, it was not possible at this time to include discrimination in
every shape and form. The State must tread carefully in what is as yet
an undeveloped area of law in the Caribbean.
34. The Act does not prohibit
discrimination on the basis of a person's sexual preference or orientation.
Again, the Government was guided by the Report of the Joint Select Committee.
The Committee, despite its diverse membership and its consultation with
experts and interest groups in the area, declared that it was unable to
arrive at a definitive position on this issue. The Working Paper also
recommended that as a starting point such a ground for discrimination
should not be included. The Government has decided that in light of the
groundbreaking nature of the Act, a conservative approach should be adopted.
In any event, in as much as homosexuality and lesbianism have not been
decriminalized in Trinidad and Tobago, it is not recommended that the
legislation be extended to include discrimination on the grounds of sexual
orientation at this time.
35. With respect to the exclusion
of "pregnancy" in the Act as a ground of discrimination, the Joint Select
Committee did not address the issue of pregnancy in its report and, as
such, did not recommend that it be included as one of the initial grounds
of discrimination under the Act.
36. Although "pregnancy" is
not specifically included under the Act, cases in the United Kingdom have
established that childbearing and the capacity for childbearing are characteristics
of the female sex. Therefore, discrimination on the ground of pregnancy
constitutes discrimination on the ground of sex. It may therefore not
be necessary to include "pregnancy" as a separate ground at this time.
37. The Government's commitment
to the protection of pregnant women in the field of employment is, nevertheless,
evidenced in the introduction and enactment of the Maternity Protection
Act in 1998 referred to in article 3 of the Report. This Act ensures that
women workers are ensured a statutory right to maternity leave with pay;
the right to return to work after pregnancy under the same terms and conditions,
and the right not to be dismissed on the ground of pregnancy.
38. The Act does not prohibit
discrimination on the ground of "age". This is based on the recommendation
of the Joint Select Committee that such a ground should be omitted until
the implications are more fully explored and settled. The Government agreed
with this recommendation since the impact of such legislation on matters
such as the age of compulsory retirement; age restrictions for employment
in the public service and elderly benefits need to be properly researched
and analysed before such legislation can be enacted.
39. With respect to the exclusion
of HIV status as a ground of discrimination, it is to be noted that the
definition of "disability" under the Act is restricted to present physical
and mental disabilities and does not cover the presence in the body of
organisms capable of causing disease or illness. Persons who are HIV positive
or who have AIDS would, therefore, not be protected against discrimination
under the Act.
40. The Law Commission's Working
Paper on Equal Opportunity Legislation alluded to the extension of equal
opportunity legislation to cover persons who are discriminated against
in certain fields because they are HIV positive or have AIDS with certain
stated exceptions, such as where the person is unable to carry out the
inherent requirements of a job; or where that person may require services
or facilities which would impose unjustifiable hardship on an employer
to provide; or where there would be a risk to the public health. This
issue however was not specifically dealt with in the Report of the Joint
Select Committee of Parliament.
41. The Government however
in recognition of the high incidence of HIV infection and AIDS in Trinidad
and Tobago, in December 1998 instructed the Law Commission to prepare
a Working Paper on the need for legal reform in this area. On 29 May 1998,
the Law Commission prepared the said Paper entitled "An Overview of HIV
Infection and AIDS in Trinidad and Tobago: Exploring the Need for Legislation
and Proposals for Reform". The Government instructed that the Paper be
published for public comment. This was done in late August 1998. Based
on comments received by the Law Commission on this Paper, legislation
is being enacted to give effect to the following Recommendations of the
(i) Consideration should be
given to enabling victims of rape/sexual offences, where a real possibility
of HIV transmission exists, to have their assailants undergo compulsory
testing for HIV;
(ii) Favourable consideration
should be given to the document HIV/AIDS in the Workplace: A National
Policy and its transition to legislation be expedited.
42. In accordance with these
recommendations, the Government introduced an amendment to the Sexual
Offences Act, 1986. Section 34 E of the (Amendment) Act provides that
where a person is convicted of an offence ... the Court shall require
that the person be medically examined. Where upon such examination it
is found that the person examined is suffering from the Human Immune Deficiency
Virus ... information to that effect must be given promptly to the complainant
and the person medically examined. Where it is found that the complainant
has contracted HIV, the court, may order the defendant to pay compensation
to the complainant. This Sexual Offences Amendment Act is now in force.
43. In respect of the second
recommendation listed above, legislative provisions to give protection
to people who have AIDS from discrimination by co-workers, unions, employees
or clients have been included in a new Basic Conditions of Work Bill,
2000 which was recently drafted. It is expected that this legislation
will be implemented in the near future. The Bill provides in Part IX that
an employer shall not require an employee to be screened or tested as
evidence that that employee is not infected with HIV and AIDS. Clause
43 (2) provides that an employer shall not discriminate in the hiring,
firing and other terms and conditions against an employee on grounds that
that employee is infected with HIV/AIDS. Clause 43 (5) provides that an
employer may as far as is practicable provide for the protection of employees
in the workplace affected by or perceived to be affected by HIV/AIDS from
stigmatization and discrimination by co-workers, unions, employers or
44. In paragraph 12, the Committee
In relation to sexual harassment
in the workplace, the Committee notes the judicial decision in Bank Employees'
Union v. Republic Bank Ltd. Trade Dispute 17 of 1995, where it held that
a person had been properly dismissed from his employment where his conduct,
on the facts of the case, was properly classified as sexual harassment.
The adequacy of the judicial
remedy should be kept under review and legislation passed if necessary.
Sexual harassment is not a
statutory offence in Trinidad and Tobago. The Basic Conditions of Work
Bill 2000 which has been recently drafted, contains provisions which seek
to prohibit sexual harassment by employers, persons in authority and co-workers.
Clause 44 (1) of the Bill contains the following provision:
An employer or fellow employee
shall not sexually harass an employee during the course of employment
or at any work place.
45. In paragraph 13, the Committee
The Committee is disturbed
to learn that, apart from prohibiting corporal punishment for persons
under 18 years of age, the State party is still practising the punishments
of flogging and whipping which are cruel and inhuman punishments prohibited
by article 7.
Sentences of flogging or whipping should immediately be abolished.
In terms of removing corporal
punishment from the Laws of Trinidad and Tobago the Government has taken
a significant step. The Children's (Amendment) Bill, 1999 effectively
abolishes corporal punishment as a penal sanction against children below
the age of 18 years. It has also abolished corporal punishment against
children in schools.
46. In respect of persons
over 18 years however, the court still has a discretion to impose corporal
punishment for specific offences such as offences involving violence where
the offender inflicts a wound, or for robbery with violence or with aggravation,
and for rape. A sentence of corporal punishment may not be administered
until after the determination of any appeal against that sentence.
47. The statistics however
reveal that although corporal punishment is still available for adult
offenders on the statute books, the administration of corporal punishment
has been minimal. Since 1999 no floggings have been carried out and only
17 whippings have been reported. The Government's position on this issue
however, is that crime and sentencing are matters for the country to decide
in light of the particular criminal environment in which we live. There
has been an alarming increase in the number of sexual crimes reported
against women and even men and in view of this, it is felt that for the
present corporal punishment for adult offenders should be retained. The
matter however will be kept under review to see whether at any time it
will be possible to completely remove it as a penal sanction. Although
the Law Commission recently recommended corporal punishment for persons
convicted of drug offences, the Government has rejected this recommendation.
48. In paragraph 14, the Committee
The Committee regrets that
problems relating to the police force, (such as corruption, brutality,
abuse of power and obstacles placed in the way of police personnel who
seek to correct such practices) identified over the last decade, have
still not been rectified. It is concerned that there is little reduction
in the numbers of complaints of harassment and battery submitted in 1999
The Plan of Action now
in preparation should reinforce reforms already made and ensure that the
culture of the force genuinely becomes one of public service; dereliction
of duty, harassment and battery (among other things) by police officers
should be the subject of swift disciplinary or criminal proceedings (arts.
2.1, 2.2, and 7).
The Government has recognized
the deficiencies in the Police Service and is taking action in this regard.
In August 1999 a bipartisan team headed by the Prime Minister and the
Leader of the Opposition was established to work out measures, including
any legislative action that may be required to provide solutions to problems
besetting the police service. The team agreed that the matters requiring
urgent attention include:
Corruption within the police
service and appropriate methods of investigating the same;
The system of recruitment,
discipline and promotion in the Police Service;
Management of the police service
and other areas of concern regarding the administration of the police
49. A technical team was appointed
by Cabinet to work with the bipartisan team which is comprised of Former
President of the Republic of Trinidad and Tobago (Sir Ellis Clarke), Chairman
of the Law Commission, Her Majesty's Chief Inspector of the Constabulary
(Sir David O'Dowd), the former Commissioner of Police of Trinidad and
Tobago, the former Commissioner of Police of Jamaica and Management Consultants.
50. The team is mandated to
consider the 1991 O'Dowd Report with the objective of submitting a plan
of action to implement the recommendations and reforms of previous Commissions.
51. In paragraph 15, the Committee
The Committee supports
the expressed concern of the Trinidad and Tobago Police Complaints Authority
about the failure of that Division adequately to report on continuing
complaints in important categories.
The Complaints Division
should improve the contents of its reports and accelerate its reporting
process so as to enable the Police Complaints Authority thoroughly to
fulfil its statutory functions, and so that violations of articles 7 and
9.1 may be properly investigated.
It is the responsibility of
the Police Complaints Authority to draw to the attention of the Minister
of National Security their concerns about the inadequacy of reports from
the Police Complaints Division and to make recommendations to improve
the system whether by administrative or legislative measures.
52. In paragraph 16, the Committee
The Committee is concerned
about Chapter 15:01 of the Police Act which enables any policemen to arrest
without a warrant in a large number of circumstances. Such a vague formulation
of the circumstances in the Act gives too generous an opportunity to the
police to exercise this power.
The Committee recommends
that the State party confine its legislation so as to conform with article
9.1 of the Covenant.
The provisions setting out
the police powers of arrest under the Police Service Act, Chapter 15.01,
date from the Colonial period. Although on the face of it these arrest
provisions appear to be very wide, in practice they are not abused. Persons
arrested have available many remedies under domestic law including habeas
corpus, Constitutional Motions and writ actions, to challenge the legality
of their detention. Those lawfully arrested are entitled to be brought
before a judicial authority within 48 hours of their arrest and in the
case of non-serious offences are also entitled to bail.
53. In paragraph 17, the Committee
The Committee expresses
its concern over prison conditions; whilst accepting that the opening
of and phased introduction of prisoners into the new maximum security
prison, together with the impact of non-custodial sentences, will reduce
the population held in outdated establishments, the conditions in these
establishments are incompatible with article 10.
In 1999, in the case of Dole
Chadee et al., the United Nations Human Rights Committee had an opportunity
to consider prison conditions in Trinidad and Tobago. The State was able
to make representations to the Committee. According to the prisoners there
had been a violation of article 10 of the Covenant because of the inhuman
conditions of detention to which they had been subjected since their arrest.
The United Nations Human Rights Committee found however that:
"[The prisoners] have provided
information with regard to their conditions of detention. The State party
has addressed the claims made by the authors, and has submitted that the
authors' conditions of detention do not violate the standards set out
in the Covenant. On the basis of the information before it, the Committee
is not in a position to make a finding of a violation of article 10 of
the Covenant. The Human Rights Committee, acting under article 5, paragraph
4, of the Optional Protocol to the International Covenant on Civil and
Political Rights, is of the view that the facts before it do not reveal
a breach of any of the provisions of the Covenant".
54. Like many countries, Trinidad
and Tobago experienced a rapid rise in its prison population. This did
result in some overcrowding. The Government took steps to alleviate the
problem by commissioning the construction of a new maximum-security prison
at Golden Grove to house 2,100 prisoners. This new facility is being occupied
on a phased basis. Since 1998 prisoners have been transferred from the
Port of Spain State Prison to the new facility at Golden Grove and this
will continue until the prison is fully occupied. This has relieved the
problem of overcrowding within the prison system. In the condemned divisions
of the Port of Spain State Prison each prisoner has always occupied his
own individual cell.
55. The Prison Service has
in place rehabilitative programmes such as educational and vocational
training programmes for prisoners. The Welfare Department of the Prison
Service also provides educational, counselling and pre-release services
56. The existing Prison Rules
were inherited from the British and came into force in 1943. Although
there have been only minor amendments of the Rules, there have been a
lot of prison reforms and improvements with respect to a prisoner's rehabilitation
and accommodation. Recently, the Government has caused the Law Commission
to prepare a paper on penal reform. Based on the recommendations, the
Prison (Amendment) Rules have been drafted. These suggested reforms focus
on areas such as the conditions of accommodation in prison, punishment
and the internal complaint procedure. They also address any problems of
overcrowding and seek to abolish the use of corporal punishment for prisoners
under the age of 18 years. It is hoped that this legislation will be implemented
in the near future. In introducing these reforms, the Government is working
towards compliance with the United Nations Standard Minimum Rules for
the Treatment of Prisoners. In addition, Trinidad and Tobago is one of
the first countries in the Caribbean to introduce, by legislation, a system
for Community Service Orders and Community Mediation in cases of certain
57. In paragraph 18, the Committee
The Committee recommends
that legal limitations on abortion be reappraised and that restrictions
which may risk violation of women's rights be removed from the law, by
legislation if necessary (arts. 3, 6.1 and 7).
In practice medical practitioners
can terminate a pregnancy prematurely on certain medical grounds. For
example, where the mother has contracted Rubella during the pregnancy.
In other cases, it is possible to make an application to the Court for
an order to terminate a pregnancy. The Government has no proposals to
58. In paragraph 19, the Committee
The Committee is concerned
that the existing laws on defamation could be used to restrict criticism
of Government or public officials.
The State party should
proceed with its proposals to reform the law of defamation, ensuring that
a balance between protection of reputation and freedom of expression (art.
Consistent with the Committee's
recommendation the Government is taking steps to reform the law of defamation.
With this in mind, the Government in 1997 prepared and published a Green
Paper entitled "Reform of Media Law - Towards a Free and Responsible Media"
for public comment. At page 5 of the Green Paper, it was noted that "Such
media law statutes as do exist are mainly taken direct from British equivalents
which have been reformed in Britain without further action in Trinidad.
One bad example is the Libel and Defamation Act, which dates from 1846
and embodies British law, as it existed at that time. It contains the
offence of criminal libel, which many believe should be abolished and
includes none of the reforms achieved in Britain by the Defamation Act
of 1952 ... Thus the media in Trinidad and Tobago is denied the statutory
extension of the defence of qualified privilege, and important procedural
extension of the defences of justification and fair comment". Page 13
of the Green Paper called for repeal of the Defamation Act. The Paper
also recommended the abolition of criminal libel to promote greater freedom
of the press and further called for the extension of the defences of qualified
privilege, justification and fair comment; which defences are not available
to the media under existing law. The proposed reforms contained in the
Green Paper were opposed by certain sectors of the media. The Government
however conducted further research and drafted a Defamation Bill to reflect
the norms of the United Kingdom legislation and has committed itself to
the passage of that legislation into law.
59. This draft Defamation
Bill proposes to give statutory effect to the defences of absolute privilege,
qualified privilege and the common law defence of "fair comment". In addition
new defences to an action for defamation will be introduced including
the defence of "triviality" to discourage the bringing of frivolous actions.
Also proposed is a provision to afford protection to a publisher of information
where he can prove that the matter complained of was obtained from a reputable
news service agency.
60. The Government accordingly
feels justified by the United Nations Human Rights Committee's statement
that the Government should proceed with proposals to reform the law of
61. In paragraph 20, the Committee
The Committee has long
awaited information on follow-up of its views as pressed in response to
Complete replies should
be given as to the grant of remedies as recommended by the Committee,
in full compliance with article 4.2 of the Optional Protocol.
In the discharge of the State's
duty to consider the Views of the Committee, the Government directs the
recommendations to the appropriate bodies who carefully consider all recommendations
and make decisions on them.
62. In cases where persons
have committed particularly heinous crimes of murder and the Privy Council
and the local courts have not found any Constitutional rights have been
infringed, there is a legitimate public interest that the lawful sentence
of the Court is carried out. The State must exercise caution in this regard
as public confidence in the administration of criminal justice must not
be undermined. In all cases in which the Committee has found a breach
of the person's rights by the State, the Privy Council, when hearing Constitutional
Motions alleging the same breaches has found no liability on the part
of the State.
63. In paragraph 21, the Committee
The Committee requests
the fifth periodic report to be submitted by 31 October 2003. It requests
that the present concluding observations and the next periodic report
be widely disseminated among the public, including civil society, and
non-governmental organizations operating in the State party.
In the past, Periodic Reports
were not widely circulated. However, the Government is taking steps to
correct this. The Third Periodic Report of the Republic of Trinidad and
Tobago on the International Covenant on Civil and Political Rights was
laid in Parliament and a statement was made by the Attorney-General when
it was laid. This was communicated to the population through the media.
Copies of the Report were then circulated to Trinidad and Tobago missions
abroad, foreign missions in Trinidad and Tobago, international human rights
organizations, all non-governmental organizations in Trinidad and Tobago,
hospitals, public libraries, and honorary consuls. Comments have been
requested from the various organizations on the content of the Report.
64. Currently, steps are being
taken to have the Report published on the Web page of the Ministry of
the Attorney-General and Legal Affairs and to have copies of the Report
made available for purchase by members of the public at a nominal fee.
The Report also contains a copy of the Covenant. The Government intends
to continue to lay these Reports in Parliament and to make copies of them
available to members of the public.
65. The Concluding Observations
of the Human Rights Committee together with these comments by the Government
will also be widely disseminated. Recently the Attorney-General held a
press conference to discuss these Concluding Observations. A Press Statement
was also issued by the Attorney-General on the Observations.
66. In accordance with article
40, paragraph 5 of the Covenant and with rule 71 (2) of the Committees
rules of procedure, the Government of Trinidad and Tobago requests that
the comments contained in this document should be included in the Committee's
report to the Economic and Social Council and the Third Committee.