Derek Achong

A High Court Judge has strong­ly crit­i­cised for­mer Gov­ern­ment of­fi­cials for their han­dling of op­po­si­tion to the con­struc­tion of the con­tro­ver­sial Debe to Mon De­sir seg­ment of the Point Fortin High­way project.

Jus­tice James Aboud gave the crit­i­cism in a 62-page judge­ment on Mon­day, in which he up­held a law­suit brought by en­vi­ron­men­tal­ist Dr Wayne Kublals­ingh and the High­way Reroute Move­ment (HRM). 

In the law­suit, Kublals­ingh and his group suc­cess­ful­ly claimed that they had a le­git­i­mate ex­pec­ta­tion that the Gov­ern­ment would have con­sid­ered their tech­ni­cal con­cerns be­fore mov­ing ahead with the project. 

In his judge­ment, Aboud sought to analyse two re­ports which were com­mis­sioned by the Peo­ple's Part­ner­ship Gov­ern­ment fol­low­ing ex­ten­sive protest ac­tion, which in­clud­ed two hunger strikes by Kublals­ingh. 

In terms of an ini­tial re­port pro­duced by a team from the Na­tion­al In­fra­struc­ture Prop­er­ty De­vel­op­ment Com­pa­ny (Nid­co), Aboud stat­ed that it could not be con­sid­ered a re­view as it sim­ply re­stat­ed and jus­ti­fied the Gov­ern­ment's pol­i­cy with­out re­gard to the con­cerns raised. 

"To as­sert that the re­view was not in­tend­ed to be in­de­pen­dent is akin to say­ing that I should sit on the ap­peal of my own judge­ment. The Nid­co re­port which com­prised a mere 10 pages was sim­ply a jus­ti­fi­ca­tion for con­struct­ing the high­way and did not mean­ing­ful­ly ad­dress the con­cerns of the HRM or the claimants," Aboud said, as he de­scribed it as a trav­es­ty and sham. 

He not­ed that through analy­sis of pub­lic com­ments made by sev­er­al Gov­ern­ment min­is­ters in­clud­ing for­mer prime min­is­ter Kam­la Per­sad-Bisses­sar, the group ex­pect­ed a le­git­i­mate re­view be­fore con­struc­tion con­tin­ued.

Aboud al­so not­ed that the re­port had al­ready been pre­pared and not dis­closed when the Min­istry of Works so­licit­ed feed­back from Kublals­ingh and the group. 

"Such a con­sul­ta­tion is a mere pre­tence or cha­rade that some­thing mean­ing­ful is tak­ing place. It was not in keep­ing with sev­er­al promis­es that had been made," Aboud said, as he not­ed the State's con­duct breached every rule of nat­ur­al jus­tice. 

In terms of the sec­ond re­port pre­pared by the High­way Re­view Com­mit­tee (HRC) led by  for­mer In­de­pen­dent Sen­a­tor Dr James Arm­strong, Aboud ques­tioned why its rec­om­men­da­tion, to stop the project to al­low for more tech­ni­cal re­views, was not fol­lowed. 

"Hav­ing spent over $700,000 for the HRC Re­port, it is un­con­scionable that the Gov­ern­ment should have de­cid­ed to en­tire­ly dis­re­gard its rec­om­men­da­tions," Aboud said. 

He de­scribed the Gov­ern­ment's han­dling of both re­ports as a "shock­ing be­tray­al". 

"The State ought to strive to em­body the na­tion's high­est moral and eth­i­cal prin­ci­ples in all that it says and does," he said. 

"In ef­fect, the ac­tions of the Gov­ern­ment ap­pear to have been an at­tempt to out-ma­noeu­vre Dr Kublals­ingh and the HRM by any means nec­es­sary in or­der to fa­cil­i­tate the con­tin­ued con­struc­tion of the high­way as orig­i­nal­ly con­ceived," he added.  

As a sec­ondary is­sue, the group al­so sought and ob­tained a de­c­la­ra­tion that the al­leged ac­tions of for­mer na­tion­al se­cu­ri­ty min­is­ter Jack Warn­er and the T&T Reg­i­ment in de­stroy­ing the Debe protest camp on June 27, 2012, were il­le­gal.

Aboud al­so ruled that Kublals­ingh and HRM mem­ber Eliz­a­beth Ramb­harose has been as­sault­ed and bat­tered by the sol­diers. 

In ad­di­tion to the $500,000 in dam­ages award­ed to the group for breach­es of their con­sti­tu­tion­al rights, Aboud award­ed Ramb­harose $15,000 in dam­ages for the at­tack. Kublals­ingh re­ceived $50,000 as he was ar­rest­ed and de­tained by po­lice un­like Ramb­harose. 

"If a par­ty of po­lice or army of­fi­cers in­vad­ed prop­er­ty I oc­cu­pied with in­ten­tions to de­mol­ish it and I was con­vinced that they had no le­gal right to en­ter it, it would be rea­son­able for me to re­sist them,” About said.

He al­so not­ed that the ac­tion or­dered by Warn­er was dis­pro­por­tion­ate as they were en­gaged in peace­ful ac­tiv­i­ty.

“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,” About said, as he not­ed that own­er­ship of the site could not be raised as no State-agency sought to in­voke its ti­tle to evict them.

De­spite the group’s le­gal vic­to­ry in the law­suit, the group is still chal­leng­ing the out­come of a sep­a­rate law­suit over the cur­rent Gov­ern­ment's move to restart the project af­ter it stalled due to is­sues with fi­nanc­ing and Brazil­ian con­trac­tor OAS Con­stru­to­ra. 

In a judge­ment, in April, Jus­tice Ricky Rahim ruled that al­though the group had a le­git­i­mate ex­pec­ta­tion that there would have been con­sul­ta­tion be­fore the restart, the State could not be held li­able for breach­ing it as it was in the pub­lic's in­ter­est to do so. 

Rahim said: "There is a high pub­lic in­ter­est com­po­nent in en­sur­ing that mon­ey al­ready ex­pend­ed is not wast­ed or thrown away by way of the degra­da­tion of ex­ist­ing struc­tures with­out prop­er­ly se­cur­ing them, in this case by com­plet­ing them." 

As part of the ap­peal, the group has filed for an in­junc­tion to stop the work over al­leged breach­es of the Land Ac­qui­si­tion Act. The in­junc­tion ap­pli­ca­tion is ex­pect­ed to come up for hear­ing on No­vem­ber 5. A date for the hear­ing of the sub­stan­tive ap­peal is yet to be set by the Ju­di­cia­ry. 

Kublals­ingh and the HRM were rep­re­sent­ed by Ramesh Lawrence Ma­haraj, SC, Fyard Ho­sein, SC, Rishi Dass, Anil Maraj, and Vi­jaya Ma­haraj. 

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