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Randolph Toussaint v the Attorney

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Two weeks ago, the recent Privy Council judgment in the case of Toussaint v the Attorney General was examined and, as promised, we shall continue with the same.

The appellant, Randolph Toussaint, who challenged the exppropriation of his property, sought to have statements used by the Prime Minister in the budget debates in the House of Assembly on December 5, 2007 to support his claim that the reason for the action of the Government was political{{more}}. The trial judge held that the statement could not be used. The Court of Appeal agreed that it could not be used, as the permission of the Speaker of the House of Assembly had not been obtained.

Their Lordships felt that the Prime Minister in explaining the acquisition of the property in the House focused exclusively on Mr Toussaint’s acquisition of the land in the 1990’s and his relationship with the previous government. Even after he recited the declaration “He made no mention of any need or purpose to acquire the land for a Learning Resource Centre.” They thought that the statement — “We have acted, whoever thinks, whatever individual may think that he possessed a right there is always the law courts. But we cannot sit idly by” – further supported his reason for the acquisition.

Their Lordships thought that the statement by the Prime Minister was “potentially relevant to Mr Toussaint’s claim as an admission or explanation of the executive’s motivation” for the appropriation and was “the best possible contemporaneous evidence.”

Their Lordships examined the implications of the Privileges Act of 1966, which, according to sections 3 and 16, buttress the Speaker’s immunity from the jurisdiction of the Court. In pursuant of these sections, statements made in the House of Assembly could not be used in evidence in the law court. However, this law must succumb to the constitutional rights of a person. Everyone has not only the constitutional right to own land but the right of access to the court to enforce that right. Further a person has a right to non-discriminatory treatment under the law. The constitution is the ultimate law of the land and any existing law must be subjected to “modifications adaptations or qualifications as necessary to avoid any inconsistency” with it. As an existing law the Privilege Act must give way to the Constitution.

According to the constitution, property should not be taken away compulsorily, except for a public purpose. Anyone whose property is taken away compulsorily must have adequate compensation. The constitution also provides for access to the court to determine whether or not the acquisition was properly carried out. Their Lordships found that if Mr Toussaint was not able to rely upon the Prime Minister’s statement in the budget debates to explain the action of the executive, his constitutional right would be unduly and effectively undermined.

To the submission that parliamentary privilege has been accepted as legitimate by the European Court of Human Rights, their Lordships observed that nothing in its judgments suggest that the absolute discretion of the Speaker of the House would pervade over a fundamental right.

Costs

The issue of costs was also raised in both courts below. The High Court had struck out the matter in favour of the Attorney General as costs in the cause; the Court of Appeal had set aside the Judge’s order and directed no costs in both courts. Their Lordships directed costs in favour of Mr Toussaint in all three courts.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: [email protected]

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