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Sunday, 31 October 2010

Habeus Corpus - Illegal Detention

Q: What remedies do I have against illegal imprisonment?

A: The ultimate purpose of a writ of habeas corpus is to provide a remedy in cases of illegal restraint or confinement by testing the legality of a person’s detainment. A petition for issuance of the writ can be filed by the imprisoned person or by other individuals acting on his or her behalf. If the court cannot find any legal justification for the person’s detention, an immediate release is ordered.

It remains in effect today (especially in the UK and US), where it is most often used in immigration cases to test the legality of the detention of immigrants, extradition proceedings, and to challenge detention under mental health legislation.

In Trinidad and Tobago, this is governed by the Habeas Corpus Act 8:01 as amended by the The Habeus Corpus (Amendment) Bill, 1996.

Sunday, 24 October 2010

Trinidad and Tobago Defamation

Q: What can I do if someone writes something about me on Facebook that is untrue?

A: You can bring a civil suit for defamation.

There are two types of defamation; libel and slander. Libel is a defamatory statement in a permanent form, usually written, e.g. in a newspaper, book, letters, paintings, etc. Slander is a defamatory statement in a transient (non-permanent) form, usually by means of spoken words or gesture (very difficult to prove).

In the case of Facebook postings, it is obviously libel.

The laws governing defamation in Trinidad and Tobago can be found in the Libel and Defamation Act - Chapter 11:16.

Slander- Section 2: No action for defamation shall be maintainable in any Court of justice in Trinidad and Tobago in respect of words spoken, except [in specific clear-cut cases].

Libel - Section 8: If any person maliciously publishes defamatory libel, knowing it to be false, he is liable on conviction to imprisonment for two years and to pay such fine as the Court directs.

Section 9: If any person maliciously publishes any defamatory libel, upon conviction he is liable to pay a fine and to imprisonment for one year.

Sunday, 17 October 2010

The Universal Declaration of Human Rights 1948

Q: What are my Human Rights in Trinidad and Tobago?

The Universal Declaration of Human Rights (UDHR) is for everyone regardless of where they live. On December 10th, 1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights.

Human Rights are split into two categories: Civil and political (up to Article 21) and Economic, social and cultural (the remaining Articles). Civil and political rights are rights that are mandatory, while economic, social and cultural rights are not. For example, one can walk into any court and demand a right to life, but it would be impossible to demand an education.

Here is an abbreviated list of the Articles in the UDHR 1948.

Article 1 Right to Equality
Article 2 Freedom from Discrimination
Article 3 Right to Life, Liberty, Personal Security
Article 4 Freedom from Slavery
Article 5 Freedom from Torture and Degrading Treatment
Article 6 Right to Recognition as a Person before the Law
Article 7 Right to Equality before the Law
Article 8 Right to Remedy by Competent Tribunal
Article 9 Freedom from Arbitrary Arrest and Exile
Article 10 Right to Fair Public Hearing
Article 11 Right to be Considered Innocent until Proven Guilty
Article 12 Freedom from Interference with Privacy, Family, Home and Correspondence
Article 13 Right to Free Movement in and out of the Country
Article 14 Right to Asylum in other Countries from Persecution
Article 15 Right to a Nationality and the Freedom to Change It
Article 16 Right to Marriage and Family
Article 17 Right to own Property
Article 18 Freedom of Belief and Religion
Article 19 Freedom of Opinion and Information
Article 20 Right of Peaceful Assembly and Association
Article 21 Right to Participate in Government and in Free Elections
Article 22 Right to Social Security
Article 23 Right to Desirable Work and to Join Trade Unions
Article 24 Right to Rest and Leisure
Article 25 Right to Adequate Living Standard
Article 26 Right to Education
Article 27 Right to Participate in the Cultural Life of Community
Article 28 Right to a Social Order that Articulates this Document
Article 29 Community Duties Essential to Free and Full Development
Article 30 Freedom from State or Personal Interference in the above Rights

Sunday, 10 October 2010

Doctrine of Recent Complaint

Q: What is the doctrine of recent complaint?

A: The Doctrine of recent complaint is a legal principle whereby sexually assaulted women had to report the rape at the first reasonable opportunity or it was inferred that the offence had never taken place. A "legitimate victim", it was argued, would report such a crime to the first person encountered.

This principle has been abrogated in many territories because it has been argued that a traumautised woman would not want to spread the news of her rape to anyone, for fear of being ridiculed.

Sunday, 3 October 2010

Co-Ownership of Land: Tenancy in Common

Joint tenancy requires four unities, if those are not ALL satisfied, it becomes a Tenancy in Common.

•Tenants in common can be between two or more persons.

•Ownership can be held in equal shares or unequal shares. For example, John could hold 50% ownership, Mary 25% and Tallulah 25%.

•Co-tenants have the right to possess the property by one tenant or by all the tenants. Tallulah can live in the property by herself or share the property with John and Mary. Neither tenant can exclude the other.

•Upon death, the interest of the deceased co-tenant will pass to the co-tenant's heirs. If Tallulah died, John would still hold 50%, Mary would own 25%, but Tallulah's 25% would pass to whomever she designated in her will.

•To dissolve the tenancy in common, one or more co-tenants can buy out the others.

•The property can be sold and the proceeds distributed equally among the owners.

Creating a tenancy in common
Joint tenancy is presumed unless there are words indicating tenants in common. It can also be clearly stated by using words such as “to AB and CD in equal shares” or “AB and CD as tenants in common.” The share of each tenant is decided by the law in one of four ways:
• Deed or Will eg: “To AB one quarter undivided share and to CD three quarter undivided share”;
• Agreement: Any agreement between the owners as to their individual share;
• Contributions: The contribution to the deposit (if any) can determine the share a person holds;
• Equity: This is work done improving the property and increasing its value; but this must be more than general maintenance and decoration —it must be something out of the ordinary, going beyond what would normally be expected of a co-owner such as adding a room to a house or changing a roof.

Breaking a tenancy in common
The shares can be changed by agreement. This must be in the form of a deed.

Rights and duties of co-owners
Co-owners, irrespective of the type of tenancy, share certain rights relative to each other and to the property, except to the extent they have modified these rights through an agreement among themselves:
• Right of Access: Each owner has an unrestricted right of access to the property and where one co-owner wrongfully excludes another from making use of the property, the excluded co-owner can bring an action against the other co-owner.
• Right to Rent: Each owner has a right to the profits made from the property. If the property generates income such as rent, each owner is entitled to a pro-rata share of that income.
• Contribution: Each owner has a right of contribution for the costs of owning the property such as property taxes and mortgages on the entire property.
Co-owners do not have any obligation to contribute to any costs of repairing or improving the property so if one co-owner adds a feature that enhances the value of the property, that co-owner has no right to demand that any others share the cost of adding that feature - even if other co-owners reap greater profits from the property because of it.
However, when the property is being divided up, a co-owner is entitled to recover the value added by his or her improvements of the property. Conversely, if the co-owner's "improvements" decrease the value of the property, the co-owner is responsible for the decrease.