REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Criminal Appeals Nos. 5 & 6 of 2010
BETWEEN
BARRY FRANCIS
ROGER HINDS Appellants
AND
THE STATE Respondent
PANEL: I. ARCHIE, C.J. P. WEEKES, J.A. P. JAMADAR, J.A. A. YORKE-SOO HON, J.A. N. BEREAUX, J.A.
APPEARANCES: Mr. J. Singh, Mr. L. Lalla, Mr. K. Taklalsingh, Mr. D. Khan and Ms. H. Shaikh for the First Appellant. Ms. A. Francis for the Second Appellant. Ms. D. Seetahal S.C. and Mr. G. Busby for the Respondent. Ms. P. Elder S.C., Ms. S. Chote S. C., Mr. R. Persad, Ms. M. Solomon- Baksh, Mr. J. Heath and Mr. R. Morgan for the Criminal Bar Association.
DATE DELIVERED: 14th February, 2014
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JUDGMENT
Joint Opinion of I. Archie, C.J. and P. Jamadar, J.A.
Introduction 1. This joint opinion is a minority opinion on the single issue of whether in determining when legislation is inconsistent with the Trinidad and Tobago Constitution, a proportionality test as suggested by Baroness Hale in Kenneth Suratt v Attorney General1 is an appropriate means for resolving that issue – in the context of legislation passed by a simple majority and not pursuant to section 13 of the Constitution, or for the purposes of the first stage analysis on a section 13 challenge to the constitutionality of an Act (on the basis that though inconsistent and rendered effective, it is not reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual).
2. In concluding that such a test is not appropriate or constitutionally legitimate in Trinidad and Tobago, we have advanced arguments based on socio-political and historical contexts, the Constitution itself as text, comparative analysis, policy and precedent. We have placed value on the wisdom and prescience of the framers of both the 1962 and 1976 Constitutions; they, in our opinion, rightly anticipated the particular social, economic and political tensions and challenges that would have faced a newly Independent Trinidad and Tobago, an emerging Republican State and the dynamic twenty-first century young, developing society that is the multi-ethnic, multi- religious and politically divided potpourri we know and experience as Trinidad and Tobago. In particular, we recognise and honour that our Constitution is unique in the Caribbean and purposefully so. It sets at the heart and centre of the divide between governmental intervention and human endeavour, entrenched human rights provisions. It empowers the Judiciary with the duty and responsibility to be the final arbiter of this tension and balance. In our opinion, our Constitution elects and enacts a clear bias – a permissive preference for the upholding of the
1 [2007] UKPC 55, at paragraph 58. Page 2 of 94
fundamental rights provisions (stated by deliberate choice in absolute and unfettered terms) and clear, specific and concrete restraints on the power of the Executive or the Legislature to limit or restrict those rights and freedoms. We are clear, that in Trinidad and Tobago Parliament is not supreme, only the Constitution is supreme. Further, that the Constitution protects the fundamental rights and freedoms by restricting Parliament’s power to encroach on then.
3. This protection of the rights and freedoms from Executive or Legislative encroachment is provided for in the Constitution itself, by creating clear though subtle and finely balanced processes that allow Executive or Legislative encroachment in only specified and limited circumstances. In our opinion, the proportionality test suggested in Suratt constitutes a reading into the Constitution of a ‘reasonably required’ general limitation of the fundamental rights and freedoms, which is not in the text and was deliberately left out.
4. In any event, we see proportionality as more akin to reasonability, which is the standard set in section 13 – reasonable justifiability. We do not agree, as Bereaux, J.A. seems to suggest, that inconsistency is the standard under section 13. We are of the firm view that the standard is reasonability. In our opinion, inconsistency with the Constitution simpliciter, is the trigger that invokes section 13 and provided that its requirements are met, otherwise inconsistent legislation is rendered effective. However, even inconsistent legislation that is rendered effective by section 13 must also be reasonably justifiable. Proportionality is therefore a useful tool in determining reasonable justifiability for the purposes of the stage two section 13 analysis. It is consequently inapt for determining inconsistency (the stage one analysis) in the context of section 13 of the Trinidad and Tobago Constitution.
5. What, therefore, is ultimately at stake in the differences between our opinion and that of the majority, is whether the power of Parliament and the Executive will be enlarged at the expense of the protection of the fundamental rights and freedoms, or whether the protection of the rights will be preserved and the power of Parliament and the Executive limited. In our opinion the Constitution provides for the latter, which we uphold; whereas the opinion of the majority permits (by way of judicial intervention) the former, which we repudiate.
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6. In our opinion, the non-negotiable constitutional values that the society has through careful deliberation declared as fundamental, are protected from legislative encroachment unless undertaken by specified means constitutionally provided and are therefore to be studiously appreciated and followed.
7. This extraordinary five-member panel of the Court of Appeal was convened, in part, to resolve these constitutionally important issues. Regrettably, we are divided, but nevertheless we hope that this discourse will advance the dialogue on the issue and that it would be decisively resolved in the near future.
8. We have had the benefit of reading the draft judgment of Bereaux, J.A. and we agree with his reasoning and decisions, except where the contrary is indicated in this opinion. We disagree with the suggestion that the issue we have identified is somehow irrelevant to the determination of these appeals. In our opinion it is unavoidable, as the first stage analysis on a section 13 challenge demands a determination of whether the provisions challenged are inconsistent with the Constitution (see issue (c) in paragraph 9 below). We also disagree that the jurisprudence in Hinds v R or in Thornhill v Attorney General is irrelevant to the issue at hand. Distinguishing these cases on narrow legalistic grounds, overlooks the fact that in these early constitutional cases, the highest courts of the Caribbean nations grasped the opportunity to examine and carefully explain, the meanings and effects of key interlocking provisions in Caribbean Constitutions. This jurisprudence is of real value and a treasure-house of understanding and insights, not to be superficially passed over.
9. The general issues raised in these appeals may be condensed into five core issues: (a) Whether the conjoint effect of sections 5(5)2 and 613 of the Dangerous Drugs Act4 creates a mandatory minimum sentence for the offences of “trafficking in a
2 Section 5(5) of the Dangerous Drugs Act states: Subject to subsection (7), a person who commits the offence of trafficking in a dangerous drug or of being in possession of a dangerous drug for the purpose of trafficking is liable upon conviction on indictment to a fine of one hundred thousand dollars or, where there is evidence of the street value of the dangerous drug, three times the street value of the dangerous drug, whichever is greater, and to imprisonment for a term of twenty-five years to life. Page 4 of 94
dangerous drug or of being in possession of a dangerous drug for the purpose of trafficking”, of a fine of $100,000.00 and a term of imprisonment for 25 years.5
(b) If sections 5(5) and 61 of the Dangerous Drugs Act create a mandatory minimum sentence as stated, whether such a sentence violates the doctrine of the separation of powers.
(c) If sections 5(5) and 61 of the Dangerous Drugs Act create a mandatory minimum sentence as stated, whether such a sentence is inconsistent6 with the constitutionally entrenched fundamental rights and freedoms declared and protected in sections 4 and 5 of the Constitution of the Republic of Trinidad and Tobago.7
3 Section 61 of the Dangerous Drugs Act states: The provisions of section 68(2) and (3) of the Interpretation Act shall apply only to the penalties prescribed for possession of dangerous drugs under this Act. Section 68 of the Interpretation Act states: (1) Where a punishment is provided by a written law for an offence against the written law, the provision indicates that the offence is punishable by a punishment not exceeding that provided. (2) Where in any Act or statutory instrument provision is made for any minimum penalty or fine, or for any fixed penalty or fine, as a punishment for a criminal offence, such Act or statutory instrument shall have effect as though no such minimum penalty or fine had been provided, or as though the fixed penalty or fine was the maximum penalty or fine, as the case may be. (3) Where in any written law more than one penalty linked by the word “and” is prescribed for an offence, this shall be construed to mean that the penalties may be imposed alternatively or cumulatively. 4 Chap. 11:25, Laws of Trinidad and Tobago. 5 Note: By virtue of section 18 (1) of the Dangerous Drug Act, an additional aspect of a sentence for these offences is the stipulation, that in default of the payment of the fine of $100,000.00 the convicted person shall be imprisoned “for a period of fifteen years … which period shall commence at the end of the term of imprisonment imposed by the court.” 6 See sections 2, 5 and 14 of the Constitution. 7 The rights and freedoms allegedly contravened are those provided for at sections 4(a) and (b) and 5(2)(a), (b) and (e) of the Constitution, as follows: 4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely: (a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law; (b) the right of the individual to equality before the law and the protection of the law. 5 (2) Without prejudice to subsection (1), but subject to this Chapter and to section 54, Parliament may not— (a) authorise or effect the arbitrary detention, imprisonment or exile of any person; (b) impose or authorise the imposition of cruel and unusual treatment or punishment; (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations. Page 5 of 94
(d) If the mandatory minimum sentence as indicated is inconsistent with any of the fundamental rights and freedoms stated, whether sections 5(5) and 61 of the Dangerous Drugs Act are effective notwithstanding, it not having been demonstrated (by the appellants) that those inconsistencies are not reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual (the Dangerous Drugs Act having been expressly declared to have been passed though inconsistent with sections 4 and 5 and pursuant to section 13 of the Constitution).8
(e) If the mandatory minimum sentence as stated is held to be inconsistent with sections 4 and 5 of the Constitution and not to be reasonably justifiable as provided for by section 13 of the Constitution, what is the appropriate relief to be granted.
10. This opinion proposes to address only issues (c) and (d) above and to do so in a limited way. As explained, these are both important constitutional issues, which have created concern and division amongst members of the Judiciary.9
11. On issue (a), we agree with Bereaux, J.A. for the reasons given, that there is no ambiguity in section 5(5) of the Dangerous Drugs Act. From the plain language of the text, read in the context of the entire Act and against the background of its legislative history, Parliament intended to establish mandatory minimum sentences for the subject offences as stated above.
12. On issue (b), we also agree with Bereaux, J.A. for the reasons given, that there is no violation of the doctrine of the separation of powers in this case. The imposition on the Judiciary
8 See section 13 of the Constitution and the Preamble to the Dangerous Drugs Act. 9 See for example, the different views expressed by Mendonca, J.A. and Kangaloo, J.A. (in Civ. App. No. 185 of 2010, Ferguson v Attorney General) to reconciling the seemingly divergent approaches taken by the Privy Council to the test for determining whether ordinary legislation is constitutional, in Hinds v R [1977] AC 195, per Lord Diplock and in Suratt v Attorney General, PCA NO. 84 0f 2006, per Baroness Hale; and see also the specific reservation expressed by Jamadar, J.A. in Civ. App. No. 140 of 2008, Ishmael v Attorney General, at paragraphs 72 to 75; and to a lesser extent the comments of Bereaux, J.A. at paragraphs 36, 41 and 42. Page 6 of 94
of a mandatory minimum sentence for certain criminal offences is not in and of itself a violation of the separation of powers that the Constitution condemns or censures.
13. In relation to the Gun Court Act, 1974 and the establishment of “The Gun Court” in Jamaica, Lord Diplock, in Hinds v R, stated:10 “In the field of punishment for criminal offences, the application of the basis principle of separation of legislative, executive and judicial powers that is implicit in a constitution on the Westminster model makes it necessary to consider how the power to determine the length and character of a sentence which imposes restrictions on the personal liberty of the offender is distributed under these three heads of power. The power conferred upon the Parliament to make laws for the peace, order and good government of Jamaica enables it not only to define what conduct shall constitute a criminal offence but also to prescribe the punishment to be inflicted on those persons who have been found guilty of that conduct by an independent and impartial court established by law: see Constitution, Chapter III, section 20 (1) . The carrying out of the punishment where it involves a deprivation of personal liberty is a function of the executive power; and, subject to any restrictions imposed by a law, it lies within the power of the executive to regulate the conditions under which the punishment is carried out. In the exercise of its legislative power, Parliament may, if it thinks fit, prescribe a fixed punishment to be inflicted upon all offenders found guilty of the defined offence - as, for example, capital punishment for the crime of murder. Or it may prescribe a range of punishments up to a maximum in severity, either with or, as is more common, without a minimum, leaving it to the court by which the individual is tried to determine what punishment falling within the range prescribed by Parliament is appropriate in the particular circumstances of his case. Thus Parliament, in the exercise of its legislative power, may make a law imposing limits upon the discretion of the judges who preside over the courts by
10 Hinds v R [1977] AC 195, at pages 225 – 226. Page 7 of 94
whom offences against that law are tried to inflict on an individual offender a custodial sentence the length of which reflects the judge's own assessment of the gravity of the offender's conduct in the particular circumstance of his case. What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body whose members are not appointed under Chapter VII of the Constitution, a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.
In this connection their Lordships would not seek to improve on what was said by the Supreme Court of Ireland in Deaton v. Attorney-General and the Revenue Commissioners [1963] I.R. 170, 182-183, a case which concerned a law in which the choice of alternative penalties was left to the executive.
"There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case.... The legislature does not prescribe the penalty to be imposed in an individual citizen's case; it states the general rule, and the application of that rule is for the courts... the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the executive..." This was said in relation to the Constitution of the Irish Republic, which is also based upon the separation of powers. In their Lordships' view it applies with even greater force to constitutions on the Westminster model.”
To our minds this statement of Lord Diplock is a complete answer to this issue and we adopt it accordingly.
14. On issue (e) as to the appropriate relief to be granted in these appeals, we share the view that the most effective and just remedy, balancing the competing public and private interests that
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collide in these cases, is to declare section 61 of the Dangerous Drugs Act inconsistent with the Constitution and to that extent void and of no effect.11 The consequence of this declaration is the reinstatement in its entirety of section 68 of the Interpretation Act and of the discretion conferred on judges to determine the appropriate sentence for all offences created by the Dangerous Drugs Act.
15. In substituting an appropriate sentence, a court cannot disregard Parliament’s clear intention. The intended minimum sentence of a fine of one hundred thousand dollars and twenty-five years imprisonment (including the default provision) must therefore be taken into account in any penalty to be meted out. In doing so however, a court cannot be fettered in its discretion to apply the law appropriately to the facts and circumstances of the individual cases coming before it. This consideration is rooted in due process, fundamental fairness and justice. An accused must be punished for the crime s/he has been found to commit. But not only must his or her guilt be fairly considered, his or her punishment must also fairly reflect the facts and circumstances of the case, including any special considerations that may apply.
16. On January 31st 2014 we directed that written submissions be filed on this issue on or before the 7th February, 2014. We reconvened on the 14th February, 2014 to deliver our full written judgments. An executive summary of this Court’s decision was given on the 31st January, 2014 with those directions.12 We agree with the sentences imposed for the reasons given, together with the guidelines stated, in the majority judgment. These terms are the joint opinion of all five members of this panel.
Issues (c) and (d) 17. This appeal ultimately raises the core issue as to whether section 5(5) of the Dangerous Drugs Act, having been passed pursuant to section 13 of the Constitution, is reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual (a
11 See sections 2, 5 and 14 of the Constitution. 12 A copy is appended to this judgment. Page 9 of 94
democratic society).13 However, a court is duty bound in undertaking a section 13 analysis to first ascertain whether the impugned sections of any legislation are indeed inconsistent with the Constitution. That is to say, even though the express declaration made by Parliament states that the act “shall have effect even though inconsistent with sections 4 and 5 of the Constitution”,14 there is no presumption of inconsistency when a court has to undertake the determination of reasonable justifiability pursuant to section 13. It is for the court and not for Parliament to decide whether laws enacted pursuant to section 13 are in fact inconsistent with any of the provisions of sections 4 and 5 of the Constitution. The onus is on the person challenging the constitutionality of the legislation to prove both inconsistency with sections 4 and 5 of the constitution and the lack of reasonable justification for its impugned provisions.15
18. We ultimately agree with the conclusions of Bereaux, J.A. as to why section 5(5) of the Dangerous Drugs Act is inconsistent with sections 4(a) and (b) and 5(2) (a), (b) and (e) of the Constitution and also as to why sections 5(5) and 61 of the Dangerous Drugs Act are not reasonably justifiable pursuant to section 13 of the Constitution. In relation to inconsistency, we note that in the 1961 Narcotic Control Ordinance (existing law in relation to the 1962 and 1976
13 See Jamadar, J. in H.C.A. 733 of 2002, Northern Construction v Attorney General, at pages 37 and 38, where it is opined that the phrases ‘a society that has a proper respect for the rights and freedoms of the individual’ and ‘a democratic society’, as contained respectively in the Trinidad and Tobago proviso to section 13 of the Constitution and in the provisos of other jurisdictions’ Constitutions, do not create any significant difference, as a democratic society is one that has a proper respect for the rights and freedoms of individuals. If anything, the proviso in Trinidad and Tobago focuses the inquiry to be undertaken by the court in a section 13 analysis on how and according to what criteria reasonable justification is to be determined. It is arguable that Lord Templeman in Morgan v Attorney General [1987] 36 W.I.R. 396 at 398 c to e, also assumed this to be so. 14 See the Preamble to the Dangerous Drugs Act. 15 See the approach taken in the Privy Council by Lord Templeman in Morgan v Attorney General [1987] 36 W.I.R. 396 at page 397 e, where the analysis included the acknowledgement that: “The Act interferes with the right of the landlord to the enjoyment of property …”. See also the approach of the Court of Appeal, where all three judges (Kelsick, C.J., Hassanali, J.A. and Braithwaithe, J.A.) approached the analysis by presuming the constitutionality and efficacy of the act and opining that the onus was on the one seeking to impugn it to show not only that it was inconsistent with sections 4 and 5 of the Constitution, but also that it was not reasonably justifiable. See in particular Hassanali, J.A. at page 3: “The heavy burden of showing the Act ‘not to be reasonably justifiable …’ clearly rests on the respondent. And it is manifest that no inconsistency (whatever its nature or gravity) with section 4 or section 5 of the Constitution is by itself conclusive against the validity of the Act”. And Braithwaite, J.A. at page 14: “ … there is a constitutional assumption that the act is an effectual statute; (and) …the onus to rebut that assumption is on the person seeking to impugn the act, and he cannot do so until he has satisfied the requirement mentioned in section 13 (1) of the Constitution. To put it another way, it is not enough merely to allege or prove that his or other persons rights have been infringed by the act, he must also satisfy that requirement”. This was a case from Trinidad and Tobago in which legislation involving rent restriction passed pursuant to section 13 of the Constitution was challenged as not being reasonably justifiable. Page 10 of 94
Constitutions), as also in its subsequent amendments by virtue of Act No. 37 of 1985 and even in its (repeal and replacement) successor legislation, Act No. 38 of 1991,16 or the amendments to it by Act No. 27 of 1994, section 68 of the Interpretation Act remained applicable. We note further, that it was only by virtue of Act No. 44 of 2000, by section 61, that section 68(2) and (3) of the Interpretation Act was rendered inapplicable in relation to section 5(5) of the Dangerous Drugs Act; and that section 68(1) and (2) of the Interpretation Act was first enacted as the law in Trinidad and Tobago in 1962 (section 39(1) and (2) of the Interpretation Act, No. 2 of 1962).17 Section 68(1) and (2) of the Interpretation Act and the judicial discretion provided for is therefore also existing law in relation to the 1962 and 1976 Constitutions.
19. For these reasons, section 61 of the Dangerous Drugs Act is not existing law for the purposes of section 6 of the Constitution. It is in this context that we find the conjoint effects of sections 5(5) and 61 of the Dangerous Drugs Act inconsistent with the sections 4 and 5 rights and freedoms stated and agree with the conclusions of Bereaux, J.A. on this point. That is to say, the inconsistencies with due process (section 4(a)) and with the protection of the law (section 4(b)), and with section 5(2)(a) – prohibition against arbitrary detention or imprisonment, 5(2)(b) – prohibition against cruel and unusual punishment, and 5(2)(e) – prohibition against the deprivation of a fair hearing and of fundamental justice, in the context of section 5(5) of the Dangerous Drugs Act, are the direct consequence of the enactment and effects of section 61 of the Dangerous Drugs Act on the judicial discretion in relation to sentencing.
20. The appellants were deprived of their liberty without due process. Section 61 of the Dangerous Drugs Act compels a judge to impose the mandatory minimum sentence prescribed by section 5(5), without the exercise of a judicial discretion which existed at common law and was statutorily recognized by section 68 of the Interpretation Act and so formed part of the due process rights that the appellants were entitled to.
16 The Dangerous Drugs Act. 17 Section 68(3) of the Interpretation Act was introduced by Act No. 45 of 1979, and assented to and brought into force on the 24th December, 1979.
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21. The appellants were also deprived of the protection of the law. Section 61 of the Dangerous Drug Act deprived the appellants of the protection afforded them by virtue of section 68(2) and (3) of the Interpretation Act.
22. The rights to due process and the protection of the law were also limited and restricted, because the consequence of section 61 of the Dangerous Drugs Act, is to compel a judge to impose a sentence that may in all the circumstances surrounding the commission of the offence, including the particular circumstances of the accused and any other special circumstances, amount to a punishment that is grossly disproportionate and inordinately excessive. It is also arbitrary, because there is not always a fair and reasonable relationship between the circumstances of the crime and the punishment.
23. It follows from the above that the conjoint effects of sections 5(5) and 61 of the Dangerous Drugs Act, are to create a further inconsistency with section 5(2)(a) and (b), which prohibits legislation which authorizes or imposes arbitrary detention or imprisonment, or cruel and unusual punishment. In Aubeeluck v The State of Mauritius,18 the Privy Council held that a punishment is inhuman or degrading if it is grossly disproportionate to what the offender deserves. The consequences on some accused persons of the imposition of the mandatory minimum sentence in section 5(5) without the mitigating benefits of section 68(2) and (3) of the Interpretation Act (as aptly demonstrated by Bereaux, J.A.), which is rendered inoperable by section 61 of the Dangerous Drugs Act, makes those sections inconsistent with the Constitution.
24. Finally, and for the explanations given above, the conjoint effects of sections 5(5) and 61 of the Dangerous Drugs Act, create an inconsistency with section 5(2)(e), which prohibits depriving an accused of a fair hearing and fundamental justice. In Thomas v Baptiste,19 Lord Millett explained that due process includes and involves “the concept of the rule of law itself and the universally accepted standards of justice observed by civilized nations which observe the rule of law”. It is universally accepted in civilized nations, that in the sentencing process
18 [2010] UKPC 13, per Lord Clarke, at paragraph 32 (quoting Lord Bingham in Hughes v The Queen, unreported, 2nd April, 2001 who quoted Lamar J in R v Smith (Edward Dewey) [1987 1 SCR 1045 at page 1073). 19 (1999) 54 W.I.R. 387, at 433 (b) Page 12 of 94
fundamental justice demands that the punishment should fit the crime. Sentencing is part of the trial process. The effects of these sections of the Dangerous Drugs Act are therefore inconsistent with the accepted standards of justice that are recognized in Trinidad and Tobago as a democratic nation.
25. However, our primary concerns surround the approach to be taken and the tests to be applied by the courts in determining, in the first place, whether legislation is inconsistent with the Constitution and in the second place, whether legislation is not reasonably justifiable in a society which has a proper respect for the rights and freedoms of the individual, and in particular, whether the tests for determining both of these issues are or should be similar or the same. In this regard there are differences between our views and those of Bereaux, J.A. .
Deference to Local Opinion 26. Throughout this opinion we have dedicated much attention to local opinions and authorities. This is for two primary reasons. First, as a matter of policy, we believe that as a ‘sovereign democratic State’,20 we the people of Trinidad and Tobago, cognizant of our similar histories, experiences and understandings, must determine for ourselves what our constitutional instruments mean and how they are to be applied and to do so within the context of the accepted minimum international standards to which we have acceded in international treaties. If sovereignty is to have any real meaning and value, then in the area of constitutional law it must find full expression. This must be so, especially where the constitutional instrument is largely the work and witness of a people.
27. Second, as a matter of precedent, the Privy Council itself has recognized the value in and virtue of local interpretative opinion. Lord Bingham in Kenneth Suratt v Attorney General,21 stated: “To the extent that the answer to the present problem is doubtful, weight should be given to the judgment of the Trinidad and Tobago courts. A judge sitting in a
20 Section 1(1) of the Constitution. 21 Kenneth Suratt v Attorney General [2007] UKPC 55, at paragraph 28, per Lord Bingham. Page 13 of 94
local constitutional environment, in which he has grown up and with which he is familiar, is likely to have a surer sense of what falls within the purview of the Constitution and what falls beyond than a court sitting many miles away. For this reason alone, in the absence of manifest error, the board should be slow to disturb the unanimous conclusion of the local courts on a question of this kind, involving as it does a question of judgment and degree.”
We endorse this statement and say further, that this deference ought not to be limited only to unanimous or even majority conclusions. Due deference should be paid to the entire corpus of indigenous Caribbean jurisprudence, including extra judicial writings and academic analysis and commentaries.
The Socio-Political Context of the 1962 and 1976 Constitutions 28. The socio-political climate at the time of Independence and surrounding the preparation, discussions and final agreements on the 1962 Independence Constitution was fraught with anxiety, suspicion and fear. 22 The political, ideological, ethnic, religious and cultural suspicions and divides in the society, were apparent at the 1962 Queen’s Hall meeting to discuss the PNM Government’s proposed draft Independence Constitution and were also reflected in the concerns expressed in submissions made.
29. Mr. Clarke who was the Constitutional Advisor to the Cabinet in 1962 and who was mandated with the task of both drafting the proposed 1962 Constitution and presenting it to Queen’s Hall meeting,23 captured these sentiments when at the end of the meeting he said:24
22 From the late 1950’s to the early 1970’s the two major political parties were the PNM and the DLP. Their core support was divided along ethnic and religious lines. In fact, in 1958 the DLP had defeated the PNM in the Federal Elections of that year, winning six of the ten seats in the Federal Parliament. This DLP victory was seen as a major threat to PNM power and in 1961 the PNM introduced in Parliament the Representation of the People Act, which inter alia, introduced voting machines (instead of ballot box) and altered the way constituencies were laid out. The DLP viewed this as an attempt to disenfranchise its supporters. Accusations of rigged voting machines and of gerrymandering constituency boundaries were rampant. Suspicion was pervasive in the political arena. 23 Mr. Clarke later became Sir Ellis Clarke and was also instrumental in preparing the 1976 Republican Constitution and was the first President of the Republic. He was considered nationally by many as the ‘constitutional father of the Nation’. Page 14 of 94
“Are there any special circumstances in Trinidad and Tobago that make us apprehensive? Can we say honestly and truly that we are not afraid of the present Government, and that we are not afraid of any particular body of persons but merely that something may happen that may give rise to the things that we fear and bring about a change of circumstances. Is it not true of every country in this world? Why then are we so concerned with the possible danger? I can’t help feeling that we are, as one commentator said in quite a different context, that the citizen of Trinidad and Tobago is a little timid.”
30. Indeed, at the Marlborough House Conference on Independence for Trinidad and Tobago (in England), which ended on Friday 8th June, 1962, the entire independence project was almost scuttled. This was because the opposition delegation threatened to walk out, based on disagreements about the constitution proposed for Trinidad and Tobago. The main objections were to the process for appointment of senators and to the makeup of the Senate, and also in relation to a requirement for consultation between the Prime Minister and the Leader of the Opposition on all matters of national concern, including appointments to important national offices. These two opposition concerns were eventually satisfactorily addressed and agreement reached to proceed to Independence.
31. The socio-political climate leading up to the 1976 Republican Constitution was no less divisive or anxious. Indeed, one may say that it is this pre-1976 climate that triggered the 1971 Wooding Constitution Commission and the enactment of the 1976 Constitution.
32. In the late 1960’s and early 1970’s there was rampant social unrest in Trinidad and Tobago. From 1968 to 1970 Trinidad and Tobago witnessed the Black Power Revolution, a violent army mutiny, the declaration of a state of emergency, attempts to abridge human rights through the introduction of the infamous Public Order Act (which was withdrawn in the face of vociferous public protests), and a widespread popular ‘no-vote’ campaign led by an opposition
24 Verbatim Notes of the Proceedings of Meeting on Draft Constitution on held at Queen’s Hall, Port of Spain, 25 to 27th April, 1962, at page 93.
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coalition (ACDC – DLP), which resulted in the PNM winning all seats in Parliament and forming Government in 1971 with minority popular support. One of the consequences of that boycott was the reintroduction of ballot boxes – in part because of a campaign against the voting machines, led by the provocative slogan ‘ballots or bullets’. This was a most anxious phase in the history of post-Independent Trinidad and Tobago.
33. As a consequence, in June 1971, a constitution commission was appointed under the chairmanship of Sir Hugh Wooding T.C., Q.C.25 and included Justice Telford Georges26 (deputy chairman) and Mr. Michael de la Bastide.27 The Wooding Commission submitted its report in January 1974, but it never saw the light of day. This was largely because, the then Prime Minister, Dr. Eric Williams was totally against the Wooding Commission’s proposals on proportional representation. Williams’ and the governing PNM’s response was to appoint Sir Ellis Clarke to draft a ‘new’ constitution for Trinidad and Tobago. The 1976 Constitution was the fruit of that endeavour.
34. These contexts, well known and understood by local judges, inform one’s appreciation and even interpretation of the constitutional text. Our 1962 and 1976 Constitutions are both products of socio-political context.
Historical and Textual Perspectives 35. From the outside looking in, as is especially inevitable for a former colonial power in relation to its colonies, commonwealth Caribbean constitutions understandably all seem very similar. Indeed, they are in many respects similar. Yet from the inside (looking out), the experience is somewhat different. What may appear to be minor differences have significant interpretative focus and force, based on the experiences and discourses which led to the institution of these subtle differences. There is however recognition of trends and similarities, of the reality that in relation to Caribbean territories:
25 Who would subsequently become Chief Justice of Trinidad and Tobago. 26 Who would subsequently become Justice of Appeal Georges, Privy Councillor and Chief Justice of Tanzania, Zimbabwe and of the Bahamas. 27 Who would subsequently become Queen’s Counsel, Chief Justice of Trinidad and Tobago, Privy Councillor and President of the Caribbean Court of Justice. Page 16 of 94
“The many constitutions that have been drawn up in recent years and accepted by territories on their becoming independent were, it cannot be doubted, the product of prolonged and detailed consideration. Though they differ in some respects, in the main they follow what our noble and learned friend Lord Diplock has felicitously called "the Westminster model."28
36. However, this ‘lumping together’ with sometimes seeming disregard for difference, can be experienced subjectively as disrespect for the exhaustive and purposeful effort involved in achieving democratic sovereignty. The colonial history and experience of slavery and indentureship, where humans, now the citizens of independent sovereign states, were treated as ‘hordes’ and ‘commodities’ and so dehumanized, is not such an ancient memory in the collective consciousness of Caribbean peoples. It makes them ever vigilant and ever suspicious of persistent patterns of ‘colonialism’. We need often to remind ourselves, as Kangaloo, J.A. pointed out in Ferguson’s case: “... it must be borne in mind that our Constitution, like the common law ... has been shaped by the collective experience of our society ...”.29
37. If one were to peruse the ‘Verbatim Notes’ of the meetings convened in April 1962 to discuss the draft Independence Constitution, held at the Queen’s Hall in Port of Spain, Trinidad, one would see the concern for and the debate over detail. Details, which in the final analysis may seem to make little difference from the outside looking in, but that mattered a lot to those on the inside, to us as a people.
38. Some examples may assist as are relevant to the issues at hand. Mr. Ellis Clarke introduced the discussion on the proposed human rights provisions chapter in the draft 1962 Constitution, as follows:
28 Per Viscount Dilhorne and Lord Fraser in Hinds v R, at page 233. Note also the late Professor Carnegie’s well known comment, that the description “Westminster model’ is useful for “psychological comfort” and merely poetic – “… when we speak of our Westminster model Constitutions, we are not being lawyers or even political scientist. We are at best being poets”. (In Floreat the Westminster Model? A Commonwealth Caribbean Perspective; [1996] CLR Vol. 6, pages 1 – 12, at page 12. 29 Civ. App. No. 185 of 2010, at paragraph 1.
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“Mr. Chairman, Ladies and Gentlemen. I believe this is perhaps the most controversial chapter in the Constitution. Perhaps that is not surprising. The subject of fundamental rights and the freedom of the individual is a comparatively new one to British jurisprudence and I believe that we are still here, expecting to follow the system of British jurisprudence. First of all, in order that everyone should understand the significance of this chapter may I say what to many of you who are lawyers or thoroughly versed in this particular subject will already know. That is, that in dealing with the question of human rights we are proceeding again on a certain accepted basis. And that basis is that in the system of law with which we are familiar the supremacy of Parliament is accepted. That is to say, power resides in the Legislature to make any law it thinks fit. And the courts are not empowered to declare an Act of Parliament invalid because that act is unreasonable or unjust or manifestly erroneous or oppressive or anything else. That is the system that exists today. That is the system in the United Kingdom. That is what we might term the ‘Westminster pattern’.”30
“So that we begin with this, that at the moment in Trinidad and Tobago, with full internal self-government there is no law that the Legislature may not pass. If we delete Chapter II from the Constitution, we retain that position. Therefore, anything that is in Chapter II, however unsavoury it may be, however unpalatable it may be, does not confer one iota of power on the Legislature. I do wish to make that clear to those of you who are not lawyers.”31
“So if Chapter II achieves anything, it achieves a limitation, a restriction on the power of Parliament. ... Having said that, let me now point out why it is necessary to have, if one adopts this idea of fundamental rights and freedoms,
30 Verbatim Notes of the Proceedings of Meeting on Draft Constitution held at Queen’s Hall, Port of Spain, 25th to 27th April, 1962, at page 43. 31 Verbatim Notes of the Proceedings of Meeting on Draft Constitution held at Queen’s Hall, Port of Spain, 25th to 27th April, 1962, at page 43. Page 18 of 94
this type of provision. There are certain rights, certain freedoms, which, at least in what are commonly termed “democratic countries”, we all regard as of the greatest importance. That is to say rights that ought not lightly to be disturbed, or for that matter, disturbed at all except there are very grave reasons for doing so. On the other hand it is impossible to sit down and forecast exactly all the circumstances which may possibly arise in the next, say, 50 years and which may require legislation of one sort or another that would either in fact infringe these rights or appear to do so. And therefore when one is drafting these rights one attempts to set out the rights that are generally recognised as being rights of paramount importance. But equally the draftsman, if he is prudent, has to guard against the possibility that in certain circumstances, Parliament should be free to legislate notwithstanding these rights and notwithstanding the effects of such legislation may have upon these rights.”32
“Now while it is easy to say, comparatively easy that is, what these rights are, it is not easy, by any means, to say with equal precision or accuracy what are the circumstances in which Parliament ought to be empowered to infringe these rights and particularly to say to precisely what extent Parliament ought to be allowed to infringe these rights. So that because of this difficulty one finds that the exceptions to these rights tend to be comprehensive in their nature and their scope and tend to be imprecise in their statement in a Constitution.”33
39. We note the recognition and acknowledgment that provision had to be made in the Constitution, to describe with precision, the extent to which Parliament can be permitted to infringe the fundamental rights once they were declared as such. Underlying this recognition is the clear acceptance that the declaration of fundamental rights and freedoms in the Constitution, placed them at the heart and centre of the constitutional balance struck between government
32 Verbatim Notes of the Proceedings of Meeting on Draft Constitution held at Queen’s Hall, Port of Spain, 25th to 27th April, 1962, at page 44. 33 Verbatim Notes of the Proceedings of Meeting on Draft Constitution held at Queen’s Hall, Port of Spain, 25th to 27th April, 1962, at page 44. Page 19 of 94
action (Executive and Legislative) and human endeavour. The Judiciary, as the third arm of the State, was empowered and entrusted to maintain that balance and given the constitutional duty and power to be the final arbiter in relation to it.
40. Addressing the proviso to what would become section 5(1) in the 1962 Constitution and what is now section 13 of the 1976 Constitution, the discussion led by Mr. Clarke in 1962 was as follows: “Then there is Section 18 and there have been certain remarks about Section 18. It has been felt that this - I won’t go into, but let me mention this once and not say it again, it has been said that there is an exception. “except so far as that provision or, as the case may be, the thing done under the authority thereof is shown to be reasonably justifiable in a democratic society”. Words, words, and more words, meaning cannot be found. That has been the substance of the criticisms. I am told any society may call itself a democratic society and so on. Well, again, do understand that this is a draft put forward for your comments, your bona fide comments, they are not resented, they are welcome. If you think the words “in a democratic society” do not help let us delete them but let us give you an opportunity of at least having what other places have. If you think that the words “reasonably justifiable” are enough and that you don’t need the words “in a democratic society” that they don’t mean anything, I am quite willing to have them struck out.”34
41. What is immediately noteworthy is the degree of detail in the discussions about the wording of the proviso. Indeed, what subsequently appeared in the 1962 Constitution and was continued in the 1976 Constitution, did not contain the words “in a democratic society”, but the words “in a society that has a proper respect for the rights and freedoms of the individual”. Why were these latter words chosen and not the former? Also note that the proposed draft stated the
34 Verbatim Notes of the Proceedings of Meeting on Draft Constitution held at Queen’s Hall, Port of Spain, 25th to 27th April, 1962, at page 51. Page 20 of 94
exception in the positive, but what finally appeared in the 1962 and 1976 Constitutions framed it in the negative – “... is shown not to be reasonably justifiable ...”. Why this change? Whatever our answers, the point here is that this detail was important for the people of Trinidad and Tobago and the language both rejected and used was intentional and purposeful. These things are known in Trinidad and Tobago by knowledgeable and informed citizens of the Republic.
42. Returning to the human rights provisions, what is noteworthy is that Mr. Clarke’s draft was not in the form that eventually appeared either in the 1962 Constitution or in the 1976 Constitution. The proposed form stated the right to be protected and then went on to state the exceptions or limitations to the right. A relevant example is the right to liberty. In the 1962 Clarke Draft it appeared as follows: “No person shall be deprived of his personal liberty intentionally and without his consent, express or implied, save as may be authorised by law in any of the following cases, that is to say -” 35
This general statement was then itself followed by a series (a list) of the exceptions. For example, in the case of personal liberty, by the exception (the seventh such exception): “(g) in the case of a person who has not attained the age of twenty-one years, for the purpose of his education or welfare”. And so for all of the declared rights and freedoms.
43. In response to the 1962 Clarke draft, Mr. H.O.B. Wooding, speaking on behalf of the Bar Association, proposed that The Canadian Bill of Rights which set out simply and concisely the rights and freedoms to be recognised, “should be taken as a model and should be used as a means whereby we can help shape our thinking on the matter, modifying it to the extent that may be necessary”.36 Indeed, the comprehensive and detailed submissions of Mr. Wooding and of many other groups and persons (over 200 persons attended and participated in those 1962 discussions), demonstrate that the exercise of agreeing on the terms of the Independence Constitution was not
35 Verbatim Notes of the Proceedings of Meeting on Draft Constitution held at Queen’s Hall, Port of Spain, 25 to 27th April, 1962, at page 47. 36 Verbatim Notes of the Proceedings of Meeting on Draft Constitution held at Queen’s Hall, Port of Spain, for Wednesday 25th April, 1962, at page 60. Page 21 of 94
at all a ‘copy and paste’ exercise. Far from being the ‘mimic men’ that V.S. Naipaul stigmatized us to be, this exercise demonstrated the full flourishing of independent thought and aspiration.
44. Mr. Clarke in response to all of the discussions on the form and substance of his proposed human rights provisions, concluded the debate in April 1962 on this topic, as follows: “Mr. Chairman, one speaker did – if I may single him out for special mention, touch on the crux of the problem that Chapter II presents, and that is that Chapter II calls obviously for a reconciliation of what might appear to be two irreconcilable features. One is the individual rights and freedoms – the rights and freedoms that John Citizen expects. And the other is the almost inalienable right of the State on behalf of its citizens to retain the power to act in the best interest of those citizens. That is why human rights is such a difficult problem of drafting.
What are the two systems to which I referred? One is the present system adopted in the Draft of stating rights, but stating exceptions to those rights, whittling down those rights, admittedly whittling down those rights, designedly whittling down those rights. But doing that for whom? Doing that for the individual himself? Doing that in order that the individual the better might be able to enjoy his rights.
What is the other system? The other system is to state those rights without apparently whittling them down. State them fairly concisely, fairly precisely, but then leaving it to Parliament. – not in certain imprecise and indefinite cases, but leaving the general and complete power to Parliament to go behind those rights but to say so clearly and distinctly when it proposes to adopt this course. Now the suggestion has been, let us take the second course of stating those rights clearly, stating them shortly and then the expression was used but
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let us modify the principle of allowing Parliament to override them when it thinks fit.” 37
“I cannot repeat too strongly that however one decides to go about this procedurally you are left with the basic and fundamental problem that these rights which you give have to be subject to a wide power in Parliament to override them, and the reason why I personally find the memorandum submitted by the Bar Council completely unacceptable on this point is that it confers no such power, it confers a power to Parliament only in a case of emergency, a period of public emergency as defined here, to act in a manner that might amount to an infringement of these rights. As I say, no country has dared to do that.
Let us retain our apprehensions and let us cause apprehensions to build a public opinion, but let us not seek so to stultify our Parliament that in attempting what we all know is something that we wish for, we fail to achieve it, and fail miserably because we have deprived ourselves of the very power of stopping that which is going to deprive us of our rights.”38
45. When one reflects on this dialogue, especially the one that took place between Mr. Clarke and Mr. Wooding (on behalf of the Bar Association) and one compares Mr. Clarke’s 1962 draft to what emerged in fact as the 1962 Constitution and what was followed in the 1976 Constitution, one can conclude that there was a compromise. Wooding’s Canadian Bill of Rights model was adopted in part – a general statement of rights appearing as sections 1 and 2 in the 1962 Constitution and subsequently as sections 4 and 5 in the 1976 Constitution; and Clarke’s insistence on some allowance for Parliamentary override also included, ‘clearly and
37 Verbatim Notes of the Proceedings of Meeting on Draft Constitution held at Queen’s Hall, Port of Spain, 25 to 27th April, 1962, at page 90. 38 Verbatim Notes of the Proceedings of Meeting on Draft Constitution held at Queen’s Hall, Port of Spain, 25th to 27th April, 1962, at page 93 – 94. Page 23 of 94
distinctly’ expressed and limited, as provided for in sections 3, 4 and 5 of the 1962 Constitution and subsequently in sections 6, 7(3) and 13 of the 1976 Constitution.
46. In particular and of relevance to this appeal, it is noteworthy that in both sections 4 and 5(1) of 1962 Constitution and in sections 7(3) and 13(1) of the 1976 Constitution, there are provisos ultimately permitting legislation in both emergency and ordinary circumstances only when it is ‘reasonably justifiable’. In the case of periods of emergency, legislation must meet the standard of being ‘reasonably justifiable’ for the purpose of dealing with the situation that exists during that period. In the case of ordinary circumstances, legislation must meet the standard of being ‘reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual’.
47. Lord Diplock was therefore not wrong when he stated in Hinds v R:39 “Nevertheless all these constitutions have two things in common which have an important bearing on their interpretation. They differ fundamentally in their nature from ordinary legislation passed by the parliament of a sovereign state. They embody what is in substance an agreement reached between representatives of the various shades of political opinion in the state as to the structure of the organs of government through which the plenitude of the sovereign power of the state is to be exercised in future. All of them were negotiated as well as drafted by persons nurtured in the tradition of that branch of the common law of England that is concerned with public law and familiar in particular with the basic concept of separation of legislative, executive and judicial power as it had been developed in the unwritten constitution of the United Kingdom.”
The Independence and Republican Constitutions of Trinidad and Tobago are clearly the products of the citizens of Trinidad and Tobago and were designed to achieve particular ends, including particular political ends.
39 [1977] A.C. 195, at pages 211 – 212. Page 24 of 94
Sections 1, 2, 4, 5 and 13 of the 1976 Constitution 48. By section 1 of the Constitution, Trinidad and Tobago is declared to be “a sovereign democratic state”. This expression describes the most essential nature of the Nation. By section 2 of the Constitution, the Constitution is declared to be “the supreme law of Trinidad and Tobago”, and further, that “any other law that is inconsistent with the Constitution is void to the extent of the inconsistency”. This is a sweeping and all encompassing statement of both policy and law.
49. Section 4 declares in broad and unfettered terms the eleven fundamental rights and freedoms recognised in Trinidad and Tobago. There is no textual limitation or abridgement stated. From our exploration of the 1962 Queen’s Hall Meeting, we know that this was not the initial option proposed and we know that it follows the Bar Association’s proposal for using the Canadian Bill of Rights model and for declaring the fundamental rights as unfettered. We also know that the final form in Trinidad and Tobago is different from that adopted by Jamaica in 1962,40 Grenada in 1973,41 and Antigua and Barbuda in 1981.42 Indeed, whereas the latter three more or less follow the 1962 Clarke proposal in terms of form, stating the right and including thereafter the limitations and restrictions; Trinidad and Tobago is both unique and distinct in that it does not append any limitations or restrictions to the recognised and declared fundamental rights and freedoms. How is this to be interpreted? What was the true intention of those who drafted and enacted the 1962 Constitution? Certainly it appears that they made a conscious choice not to follow the Jamaican model or for that matter the 1962 Clarke draft. Indeed, what was the intention of those who continued this approach in the 1976 Constitution?
50. Whereas section 4 recognised and declared the rights, section 5 of the Constitution seeks to afford protection to those rights and to further aspects of the section 4(a) and (b) rights – by section 5(2). In particular, section 5 seeks to limit the power and ambit of the legislature in its law making capacity. Thus section 5(1) states:
40 See Chapter III of the 1962 Constitution of Jamaica, sections 13 to 24. 41 See Chapter I of the 1973 Constitution of Grenada, sections 1 to 13. 42 See Chapter II of the 1981 Constitution of Antigua and Barbuda, sections 3 to 15. Page 25 of 94
“Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognised and declared.”
51. Given our exploration of the Queen’s Hall Meeting and Mr. Clarke’s exposition of the unlimited power of Parliament to make laws even if contrary to fundamental rights and freedoms, it may seem clear that section 5(1) (section 2 in the 1962 Constitution) is intended to operate as a blanket restriction on the capacity of Parliament to make any laws which “may abrogate, abridge or infringe or authorize the abrogation, abridgement or infringement43 of any of” the fundamental rights and freedoms. This is also a broad and all encompassing provision, a clear and specific limitation on Parliament. It begs the question, asked by Mr. Clarke in 1962, when then will Parliament be able to make laws that may be inconsistent with and which may abrogate, abridge or infringe the fundamental rights and freedoms so absolutely declared in section 4 of the constitution?
52. The answer lies in section 5(1) itself: “Except as is otherwise expressly provided in this chapter and in section 54” of the Constitution, no law may limit or restrict the section 4 rights and freedoms. This is the inescapable interpretation one is compelled to arrive at from a plain reading of the text. To state “Except as is otherwise provided ...”, is an indication that it is in exceptional circumstances that a law may limit or restrict the fundamental rights and freedoms. Both Parliament and the Courts must approach the matter from this perspective. We note therefore, and consider most significant, that whereas the other Caribbean Constitutions sought to enact limitations on the rights and freedoms declared to be fundamental, the Trinidad and Tobago Constitution limits Parliament (and declares the rights and freedoms as absolute).
43 Applying the ejusdem generis rule to this group of words, one is compelled to ask: are there any restrictions or limitations that may fall outside of these categories, that may not be “of the same kind”? In this context these key words can be interpreted as follows: Inconsistent means, not compatible with or in keeping with. Abrogate means, to repeal or do away with. Abridge means, to curtail or limit. Infringe means, to act so as to limit or undermine, or to encroach upon. Page 26 of 94
53. Section 5(2) seeks to identify particular aspects of the section 4(a) and 4(b) rights and freedoms, obviously considered specially important, and to unequivocally limit Parliament’s power to legislate contrary to the eight identified and discrete aspects of these rights and freedoms.44
54. From the text and apart from section 54 of the Constitution (which deals with alterations to the Constitution), it appears that it is only section 6 (the saving clause), section 7(3) (exceptions for legislation passed during periods of emergency) and section 13 which permit legislation to be effective even though its provisions may be inconsistent with or otherwise limit and/or restrict (abrogate, abridge or infringe) the section 4 fundamental rights and freedoms.
55. It would therefore also appear from the text, that apart from ‘existing law’ (and in this category, one may legitimately include existing pre-1962 limitations and restrictions to the section 4(a) and (b) rights and freedoms),45 in ordinary (non-emergency) times, legislation that seeks to enact provisions that may be inconsistent with and/or limit and/or restrict the section 4 rights and freedoms and as particularized in section 5(2), must be section 13 compliant.
56. Section 13 of the Constitution states: “(1) An Act to which this section applies may expressly declare that it shall have effect even though inconsistent with sections 4 and 5 and, if any such Act does so declare, it shall have effect accordingly unless the Act is shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual. (2) An Act to which this section applies is one the Bill for which has been passed by both Houses of Parliament and at the final vote thereon in each House has been supported by the votes of not less than three-fifths of all the members of that House.
44 See Lord Diplock in de Freitas v Benny [1976] AC 239, at 245: “They do not themselves create new rights or freedoms additional to those recognized and declared in section 1 (of the 1962 Constitution). They merely state in greater detail what the rights declared in paragraphs (a) and (b) of section 2 (of the 1962 Constitution) involve.” 45 See Lord Hope in Sanatan Dharma Maha Sabha of Trinidad and Tobago Inc & Ors v. The Attorney General of Trinidad and Tobago [2009] UKPC 17; PCA No 53 of 2008. Page 27 of 94
(3) For the purposes of subsection (2) the number of members of the Senate shall, notwithstanding the appointment of temporary members in accordance with section 44, be deemed to be the number of members specified in section 40(1).”
57. It would appear from the plain language of section 13, that (outside of emergency periods and existing law limitations and restrictions) Parliament is obliged to undertake an evaluation of all legislation it intends to enact, and in so far as any proposed provisions may be inconsistent with sections 4 and 5(2) of the Constitution, the special majorities required by section 13(2) and (3), as well as the express declaration mandated by section 13(1), must be satisfied for those provisions to be effective. This is the override opportunity that the Constitution appears to have provided Parliament with (outside of emergency periods and existing law limitations and restrictions), when it intends to enact legislation that is inconsistent with sections 4 and 5(2) of the Constitution.
58. As restrictive of Parliament as this may appear to us post-moderns, fifty plus years on from Independence, it is our duty to at least try to truly understand the original intent and purpose of the framers of our Constitution. In our opinion, the interpretation we have stated is consistent with both the socio-political and historical context that informed the creation of both the 1962 and 1976 Constitutions (described above) and the plain and ordinary meaning of the constitutional text read in the context of the entire structure of the Constitution and in particular the provisions of Chapter I of the Constitution.
Policy 59. When it comes to constitutions, inquiries about Parliamentary intent and purpose is as much an inquiry into policy as it is into structural and linguistic meaning and interpretation.
60. A legitimate question to ask, is therefore, what was the policy behind the unique assembly, in the Trinidad and Tobago Constitution, of: a supreme law clause (implied or expressed), a declaration of human rights provisions in absolute terms, the protection of these
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entrenched human rights provisions from legislative interference and restriction or limitation, and a savings of existing law clause in the particular forms in which they appear?
61. If the effect of this assembly of provisions, is that Parliament can only derogate from the human rights provisions (outside of emergency periods and pre-existing limitations and restrictions), when it secures a special majority in both Houses of Parliament (not less than three- fifths of all members of each House) and when the intention to override the human rights provisions is expressly declared – and so made known to all, then the practical results will include the following: (a) First and foremost, disclosure and transparency about the purpose and aim of the legislation – to override specific declared human rights provisions. Immediately, this raises a warning flag, not only in the Parliament, but to the populace. Informed debate would no doubt follow. Infringement of rights in secret or by ambush or subterfuge is negated.
(b) Politically and societally, consensus and agreement will most likely have to be arrived at. In the Houses of Parliament, both with the Opposition benches (at least in the House of Representatives) and with the Independent Benches in the Senate. Given the composition of the Senate, no Government will be able to secure a three-fifths majority of all members of that House without at least some support from the Independent Senators (and recall that the composition of the Senate and the manner of appointment of Senators was a specific concern and demand of the Opposition at Marlborough House, when the final agreements about the 1962 Independence Constitution were negotiated).
62. In Trinidad and Tobago, given its multi-ethnic and multi-religious make-up and given its entrenched political divisions largely along ethnic, religious and geographical lines, consensus around a matter as sensitive and significant as the limitation or restriction of human rights is ideally and pragmatically necessary. In 1970, when the PNM, led by its Attorney General, Karl Hudson-Phillips, introduced The Public Order Act, which sought to limit and restrict existing
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fundamental rights and freedoms, the country rose in protest. The framers of both the 1962 and 1976 Constitutions, particularly in the socio-political contexts that birthed then, were well aware of this reality. That context has not changed and remains a relevant consideration in 2014 – public trust and confidence in Executive leadership and Parliament has been and remains low in Trinidad and Tobago.46 The purpose of this assembly of provisions must therefore be seen as intended to stymie Government, in a plural society such as Trinidad and Tobago, for the sake of increasing participatory democracy and consensus in relation to the encroachment of fundamental rights and freedoms.
The Early Cases 63. Two early decisions illustrate that both the local courts and the Privy Council seemed to have interpreted the Constitutional text as explained above. These are Hinds v R47 and Thornhill v Attorney General.48
64. In Hinds v R, Lord Diplock stated as follows:49 “One final general observation: where, as in the instant case, a constitution on the Westminster model represents the final step in the attainment of full independence by the peoples of a former colony or protectorate, the constitution provides machinery whereby any of its provisions, whether relating to fundamental rights and freedoms or to the structure of government and the allocation to its various organs of legislative, executive or judicial powers, may be altered by those peoples through their elected representatives in the Parliament acting by specified majorities, which is generally all that is required, though exceptionally as respects some provisions the alteration may be subject also to confirmation by a direct vote of the majority of the peoples themselves.
46 See the 2012 Market Facts and Opinion survey, which included a section on ‘Confidence in local institutions’. Commissioned and published by the Express Newspaper. The survey showed a decrease in confidence over the period 2011 to 2012 as follows: The President 34%/32%; The Prime Minister 31%/23%; The Opposition 23%/19%. Confidence in The Parliament was measured at 16%, up from 13% in 2011; and in the Leader of the Opposition at 18% in 2012 (no data for 2011 was published). 47 [1977] A.C. 195. 48 [1981] A.C. 61. 49 [1977] A.C. 195, at page 214.
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The purpose served by this machinery for "entrenchment" is to ensure that those provisions which were regarded as important safeguards by the political parties in Jamaica, minority and majority alike, who took part in the negotiations which led up to the constitution, should not be altered without mature consideration by the Parliament and the consent of a larger proportion of its members than the bare majority required for ordinary laws. So in deciding whether any provisions of a law passed by the Parliament of Jamaica as an ordinary law are inconsistent with the Constitution of Jamaica, neither the courts of Jamaica nor their Lordships' Board are concerned with the propriety or expediency of the law impugned. They are concerned solely with whether those provisions, however reasonable and expedient, are of such a character that they conflict with an entrenched provision of the Constitution and so can be validly passed only after the Constitution has been amended by the method laid down by it for altering that entrenched provision.” [Emphasis added.]
65. The key recognition here and the principle to be extracted, is that laws passed which are “of such a character” that they are inconsistent with the Constitution, are only valid and effective if they are passed by the method established by the Constitution for so doing, irrespective of how “reasonable and expedient” they may be.50
66. In Thornhill v Attorney General,51 Georges J., recognised as one of the leading constitutional experts in the Caribbean and almost revered for his understanding of Caribbean constitutional law and society, made the following insightful observations:
50 This is also in keeping with the Ranasinghe Principle established by the Privy Council in 1965 in The Bribery Commissioner v Ranasinghe [1965] A.C. 172, at pages 197 and 198, per Lord Pearce as follows: “… a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. … But the proposition which is not acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process.” 51 [1974] 27 WIR 281, at pages 284 – 285. Page 31 of 94
“The first issue for determination is whether or not the applicant has the constitutional right which he asserts he has. To the layman reading the Constitution of Trinidad and Tobago which is set out as the Second Schedule to the Trinidad and Tobago (Constitution) Order in Council 1962 (referred to hereinafter as ‘the Constitution’), the answer would clearly be that he does. Section 2 reads in part – ‘Subject to the provisions of sections 3, 4 and 5 of this Constitution, no law shall abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognized and declared and in particular no Act of Parliament shall – (c) deprive a person who has been arrested or detained (i) of the right to be informed promptly and with sufficient particularity of the reason for his arrest or detention; (ii) of the right to retain and instruct without delay a legal adviser of his own choice and to hold communication with him; (iii) of the right to be brought promptly before an appropriate judicial authority; (iv) of the remedy by way of habeas corpus to the determination of the validity of his detention and for his release if the detention is not lawful; The Constitution therefore appears to assert the existence of a right which counsel appearing for the Attorney General contends with much tenacity that the citizen does not enjoy.
The argument, as I understand it, is that s 2 creates no rights. It merely demarcates areas with respect to which Parliament cannot interfere by legislation – all of this being subject to ss 3, 4 and 5. I agree that s 2 is
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addressed to the Parliament and imposes certain fetters on its powers. But the fact that it does this does not make the section incapable of accomplishing anything else. If there was no right to retain and instruct without delay a legal adviser of one’s choice and to hold communication with him, it would be pointless to provide that Parliament should pass no law abrogating, infringing or authorising that right. One is driven to the conclusion that the Constitution makers at least mistakenly thought that there was such a right, though counsel was prepared to accept that they must have known that there was no such right but nonetheless framed the section as they did. I cannot conceive such calculated cynicism on the part of the framers of the Constitution. If no other explanation seemed possible then one might well be driven to it, but there is another explanation.
Acknowledgedly s 2 is not primarily directed towards the proclamation of rights. This is done in s 1 which reads in part – ‘It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist without discrimination by reason of race, origin, colour, religion or sex the following human rights and fundamental freedoms, namely - ’ and this is followed by an enumeration of eleven fundamental rights and freedoms. Section 3 then provides that ss 1 and 2 of the Constitution shall not apply in relation to any law that is in force in Trinidad and Tobago at the commencement of the Constitution.
Although counsel for the Attorney General did not explicitly adopt the position I understood a consequence of his line of reasoning to be that no new right could come into existence as a consequence of s 1 since s 3 preserved the entire body of law which existed at the date of the Constitution. I do not accept that proposition. There may well have been areas in which there was no law in force at the date of the Constitution. The proclamation that rights and freedoms
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existed in that area would then create such rights and freedoms and it would devolve upon the courts to interpret what these rights and freedoms were and to decide whether subsequent legislation abrogated, abridged or infringed them. An example of such an area may well be the right of the individual to respect for his private and family life. This appears to be an attempt to proclaiming a right to privacy – an area in which legal development can at best be described as embryonic.
The existence of the various rights having been proclaimed in s 1, s 2 protects them from legislative interference – subject to certain exceptions – and to make abundantly clear what it seeks to protect, spells out and particularises aspects of these rights which are not in the large generalisation under s 1. The phrasing is quite clear. No law shall abrogate, abridge or infringe any of the rights proclaimed in s 1 ‘and in particular no Act of Parliament shall’ – followed by the specific prohibitions. I am satisfied therefore that the rights mentioned in s 2(c) (i) - (iv) have been regarded by the Constitution makers as specific examples of the rights proclaimed in s 1. There is no need to find the particular heading under which they may be subsumed. It is enough that the Constitution has categorically set them out as particular aspects of the general heads. Assuming therefore that there was no such right at common law as is set out in s 2(c) (ii) I hold that the right now exists because the Constitution has proclaimed that it has always existed here and that it should continue to exist. The burden is on the state to show that there was some law existing at the date of the Constitution which qualified that right and to which therefore it remains subject by virtue of s 3. As I understand it, no such argument was advanced. The argument was that there was no common law right as defined in s 2(c)(ii) and that that section created no rights.” [Emphasis added]
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67. Though all of what Georges J. has said is apposite to this analysis, of particular value is his recognition that section 5 (section 2 of the 1962 Constitution) operates to protect the section 4 rights and freedoms “from legislative interference – subject to certain exceptions”. That this was not a casual or passing observation, but rather a clear and insightful recognition, is evident when Georges J. repeated his understanding as follows: “The phrasing is quite clear. No law shall abrogate, abridge, or infringe any of the rights proclaimed in section 1 ‘and in particular no Act of Parliament shall’ – followed by the specific prohibitions.”
68. In the Privy Council, Lord Diplock clearly agreed with Georges J. in his understanding of the meaning and effects of sections 1 and 2 of the 1962 Constitution (sections 4 and 5 of the 1976 Constitution). Lord Diplock stated:52 “The lack of all specificity in the descriptions of the rights and freedoms protected contained in section 1, paragraphs (a) to (k), may make it necessary sometimes to resort to an examination of the law as it was at the commencement of the Constitution in order to determine what limits upon freedoms that are expressed in absolute and unlimited terms were nevertheless intended to be preserved in the interests of the people as a whole and the orderly development of the nation; for the declaration that the rights and freedoms protected by that section already existed at that date may make the existing law as it was then administered in practice a relevant aid to the ascertainment of what kind of executive or judicial act was intended to be prohibited by the wide and vague words used in those paragraphs: see Maharaj v. Attorney-General of Trinidad and Tobago (No. 2) [1979] A.C. 385, 395. But this external aid to construction is neither necessary nor permissible where the treatment complained of is of any of the kinds specifically described in paragraphs (a) to (h) of section 2.
Section 2 is directed primarily to curtailing the exercise of the legislative
52 [1981] A.C. 61, at pages 70 – 71. Page 35 of 94
powers of the newly constituted Parliament of Trinidad and Tobago. Save in the exceptional circumstances referred to in section 4 or by the exceptional procedure provided for in section 5 the Parliament may not pass any law that purports to abrogate, abridge or infringe any of the rights or freedoms recognised and declared in section 1 or to authorise any such abrogation, abridgement or infringement. But section 2 also goes on to give, as particular examples of treatment of an individual by the executive or the judiciary, which would have the effect of infringing those rights, the various kinds of conduct described in paragraphs (a) to (h) of that section. These paragraphs spell out in greater detail (though not necessarily exhaustively) what is included in the expression "due process of law" to which the appellant was entitled under paragraph (a) of section 1 as a condition of his continued detention and "the protection of the law" to which he was entitled under paragraph (b). So there is no need to consider whether before the commencement of the Constitution a person arrested and detained by the police would have had at common law a legal remedy if he had been prevented from exercising what is specifically described in section 2 (c) (ii) as "the right to retain and instruct without delay a legal adviser of his own choice and to hold communication with him." If justification is to be found anywhere for any exclusion or limitation of the right so described, it must be sought in section 3.
Moreover, even if the treatment complained of by the appellant had not been specifically described in section 2, the fact that section 1 uses terms of great breadth and generality to describe those rights and freedoms then existing for which (in conjunction with section 6) it provides legal protection in the future, is no ground for cutting down the amplitude of any of the descriptions of those rights and freedoms contained in paragraphs (a) to (k) by restricting them to rights for contravention of which the victim would before the commencement of the Constitution have had some legal remedy either in public law or private law which he could enforce in a court of justice. In the context of section 1, the
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declaration that rights and freedoms of the kinds described in the section have existed in Trinidad and Tobago, in their Lordships' view, means that they have in fact been enjoyed by the individual citizen, whether their enjoyment by him has been de jure as a legal right or de facto as the result of a settled executive policy of abstention from interference or a settled practice as to the way in which an administrative or judicial discretion has been exercised. The hopes raised by the affirmation in the preamble to the Constitution that the protection of human rights and fundamental freedoms was to be ensured would indeed be betrayed if Chapter I did not preserve to the people of Trinidad and Tobago all those human rights and fundamental freedoms that in practice they had hitherto been permitted to enjoy.” [Emphasis added]
69. Once again, what is noteworthy for the purposes of this discussion, is the recognition by Lord Diplock that section 553 “is directed primarily at curtailing the exercise of the legislative powers of the ... Parliament”. Further, Lord Diplock stated that: “Save in the exceptional circumstances referred to in section 454 or by the exceptional procedure provided for in section 555 the Parliament may not pass any law that purports to abrogate, abridge or infringe any of the rights or freedoms recognized and declared in section 156 ...” And finally, that: “If justification is to be found anywhere for any exclusion or limitation of the right so described, it must be sought in section 3.”57
70. This then was the clear and unequivocal early understanding of the most eminent constitutional judges, both in Trinidad and Tobago and in the Privy Council, as to the nature and scope of the rights and freedoms declared in sections 4 and 5(2) of the Constitution and as to the
53 Section 2 of the 1962 Constitution. 54 Section 7(3) of the 1976 Constitution. 55 Section 13(1) of the 1976 Constitution. 56 Section 4 of the 1976 Constitution. 57 Section 6 of the 1976 Constitution – savings for existing law. Page 37 of 94
circumstances when and how Parliament could legislate to enact laws that are inconsistent with these rights and freedoms.
The 2003 Decision in Roodal 71. As recently as 2003, some Judges of the Privy Council seemed to be clear that our stated understanding of the nature of the fundamental rights and of the circumstances permissive of limitation, was the constitutionally legitimate view.
72. In Roodal v The State,58 the constitutional history of both the 1962 and 1976 Constitutions was considered by Lords Millett and Rodger. Their interpretation for the most part accords with our understanding of it.
73. In relation to the 1962 Constitution they noted: 59 “In 1962 Trinidad and Tobago became independent from Britain. The new country was a constitutional monarchy with Her Majesty the Queen as the head of state. Its constitution (“the 1962 constitution”) was set out in the second schedule to the Trinidad and Tobago (Constitution) Order 1962. This constitution was unusual in that the provisions on human rights and fundamental freedoms were modelled not on the European Convention but on the Canadian Bill of Rights 1960. This appears to have come about as the result of objections that were taken by the Bar Association to the original draft of the constitution where the relevant rights and freedoms were set out in much the same way as in the European Convention: Report of the Constitution Commission of Trinidad and Tobago (1974), para 78. Naturally, the provisions as eventually adopted were not a slavish copy of the Canadian legislation. See S A de Smith, The New Commonwealth and its Constitutions (1964), pp 205–210.
58 [2003] UKHL 78, judgment delivered on the 20th November, 2003. 59 [2003] UKHL 78, paragraphs 59, 61 – 68.
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“We pause to notice that nowhere in the 1962 constitution does it say that the constitution is the supreme law of Trinidad and Tobago. Similarly, while section 2 says that no law is to do certain things, it does not actually say what the consequences are to be if those prohibitions are breached. In these respects it bears some resemblance to the Canadian Bill of Rights. Interestingly enough, it was not until 1969 that the Supreme Court of Canada finally decided that a law which could not be construed so that it did not abrogate, abridge or infringe the relevant rights or freedoms in the Bill of Rights was inoperative: R v Drybones [1970] SCR 282.
The position under the 1962 constitution can be contrasted, for instance, with the position under the Constitution of Jamaica. Section 2 of that constitution provides: “Subject to the provisions of sections 49 and 50 of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.”
The clear effect of that provision is to make the constitution the supreme law and any other law is void in so far as it is inconsistent with the provisions of the constitution. Importantly, however, section 26(8) provides that: “Nothing contained in any law in force immediately before the appointed day shall be held to be inconsistent with any of the provisions of this Chapter; and nothing done under the authority of any such law shall be held to be done in contravention of any of these provisions.”
Again there is a difference between section 3(1) of the 1962 constitution of Trinidad and Tobago and section 26(8) of the constitution of Jamaica. Whereas section 3(1) said that sections 1 and 2 “shall not apply” in relation to any existing law, section 26(8) picks up the language of section 2 of the Jamaican
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constitution and says that nothing contained in any existing law “shall be held to be inconsistent with any of the provisions of this Chapter”.
In Director of Public Prosecutions v Nasralla [1967] 2 AC 238 Lord Devlin had to consider the effect of these provisions in the constitution of Jamaica. He said, at pp 247-248: “Whereas the general rule, as is to be expected in a Constitution and as is here embodied in section 2, is that the provisions of the Constitution should prevail over other law, an exception is made in Chapter III. This chapter … proceeds upon the presumption that the fundamental rights which it covers are already secured to the people of Jamaica by existing law. The laws in force are not to be subjected to scrutiny to see whether or not they conform to the precise terms of the protective provisions. The object of these provisions is to ensure that no future enactment shall in any matter which the chapter covers derogate from the rights which at the coming into force of the Constitution the individual enjoyed.”
Despite the differences in language and the absence of any section corresponding to section 2 of the Jamaican constitution, when called upon to interpret the 1962 constitution of Trinidad and Tobago, the Board followed Lord Devlin’s reasoning. They thus proceeded on the footing that, although this was not said expressly, section 2 meant that, subject to section 3, any law which contravened it was void. In de Freitas v Benny [1976] AC 239, 244F– 245C, Lord Diplock said: “Chapter I of the Constitution of Trinidad and Tobago, like the corresponding Chapter III of the Constitution of Jamaica (see Director of Public Prosecutions v Nasralla [1967] 2 AC 238), proceeds on the presumption that the human rights and fundamental freedoms that are referred to in sections 1 and 2 are already secured to the people of
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Trinidad and Tobago by the law in force there at the commencement of the Constitution. Section 3 debars the individual from asserting that anything done to him that is authorised by a law in force immediately before August 31, 1962, abrogates, abridges or infringes any of the rights or freedoms recognised and declared in section 1 or particularised in section 2. Section 2 is not dealing with enacted or unwritten laws that were in force in Trinidad or Tobago before that date. What it does is to ensure that subject to three exceptions no future enactment of the Parliament established by Chapter IV of the Constitution shall in any way derogate from the rights and freedoms declared in section 1. The three exceptions are: Acts of Parliament passed during a period of public emergency and authorised by sections 4 and 8; Acts of Parliament authorised by section 5 and passed by the majorities in each House that are specified in that section; and Acts of Parliament amending Chapter I of the Constitution itself and passed by the majorities in each House that are specified in section 38.
The specific prohibitions upon what may be done by future Acts of Parliament set out in paragraphs (a) to (h) of section 2 and introduced by the words ‘in particular,’ are directed to elaborating what is meant by ‘due process of law’ in section 1 (a) and ‘the protection of the law’ in section 1 (b). They do not themselves create new rights or freedoms additional to those recognised and declared in section 1. They merely state in greater detail what the rights declared in paragraphs (a) and (b) of section 1 involve.”
In Maharaj v Attorney General of Trinidad and Tobago (No 2) [1979] AC 385, 395 Lord Diplock confirmed how Chapter I of the 1962 constitution was to be regarded:
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“In section 1 the human rights and fundamental freedoms which it is declared (by the only words in the section that are capable of being enacting words), ‘shall continue to exist’ are those which are expressly recognised by the section to ‘have existed’ in Trinidad and Tobago. So to understand the legal nature of the various rights and freedoms that are described in the succeeding paragraphs (a) to (k) in broad terms and in language more familiar to politics than to legal draftsmanship, it is necessary to examine the extent to which, in his exercise and enjoyment of rights and freedoms capable of falling within the broad descriptions in the section, the individual was entitled to protection or non-interference under the law as it existed immediately before the Constitution came into effect. That is the extent of the protection or freedom from interference by the law that section 2 provides shall not be abrogated, abridged or infringed by any future law, except as provided by section 4 or section 5.
What confines section 2 to future laws is that it is made subject to the provisions of section 3. In view of the breadth of language used in section 1 to describe the fundamental rights and freedoms, detailed examination of all the laws in force in Trinidad and Tobago at the time the Constitution came into effect (including the common law so far as it had not been superseded by written law) might have revealed provisions which it could plausibly be argued contravened one or other of the rights or freedoms recognised and declared by section 1. Section 3 eliminates the possibility of any argument on these lines.”
Two things are clear. First, laws which were passed in contravention of sections 1 and 2 of the 1962 constitution would be void just as they would be void under the corresponding provisions of the Jamaican constitution. Secondly, the rights in sections 1 and 2 were circumscribed by the existing
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laws of the country. Those laws were therefore not to be called into question. This had the advantage of making for stability. But, much more importantly, these laws were secured in order to define the scope and limits of the rights, some of which were declared in very broad terms. In 1974 in paras 79–80 of their Report, to which we were not referred by counsel, the Constitution Commission explained the thinking behind this aspect of the 1962 Constitution: “79. In so doing, the present Constitution adopted an approach which reflects the thinking in the United Kingdom. There, no written Constitution exists and all individual rights have their roots in the common law. These rights may be defined as the area of permissible activity when all the laws restricting the individual have been taken into account. Thus freedom of thought and expression have always existed in Trinidad and Tobago. But everyone knew without its being explicitly stated that this freedom was subject, among other restraints, to the law of libel and slander, to the Sedition Ordinance of 1920, to the laws against obscenity and blasphemy, to the prohibition against publishing reports of the proceedings at preliminary inquiries into indictable offences and to the power of government to ban the importation of literature which it considered subversive.
80. This result was achieved in our present Constitution by the expedient of section 3 which in a comprehensive provision made all the declared rights and freedoms subject to all the laws in force in Trinidad and Tobago at its commencement. Also, because there was from that time onwards to be a written Constitution, guaranteeing those rights and freedoms from abridgment or infringement, provision had to be made for validating future laws which might appear in any respect whatever to be in breach of that guarantee. Hence section 5 with its safeguards both of an affirmative vote by a special majority and if ‘shown not to be reasonably justifiable in a society that has a proper respect for the
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rights and freedoms of the individual.’ The effect was indeed to produce a brief and apparently simple statement of rights and freedoms. But the brevity and apparent simplicity were misleading. Many people were shocked to find out that rights and freedoms set out in absolute terms were subject to important limitations the extent of which was nowhere defined. This led some people to wonder, perhaps cynically, whether there was any meaning to these rights and freedoms at all.”
The Commission went on in the next paragraph to criticise the situation in which Parliament could pass laws that were to have effect despite the absolute nature of the fundamental rights as set out in the 1962 Constitution. Even though the Commission might come to regard it as defective, this was the constitutional scheme that the representatives of Trinidad and Tobago chose to adopt when their country became independent. Other countries adopted different schemes: some conferred no protection on existing laws, some protected existing laws from challenge only for a limited period, while others saved existing laws from challenge only in respect of a limited number of rights and freedoms. It must be presumed that those different schemes met local wishes and conditions.” [Emphasis added.]
74. In relation to the 1976 Constitution they also noted:60 “In the 1970s it was decided that Trinidad and Tobago should have a new republican constitution, with a President rather than the Queen as head of state. To help prepare the new constitution, the Governor General appointed the Constitution Commission, to which we have already referred. As we have noted, the Commission were critical of the scheme of rights and freedoms in the 1962 Constitution that had been based on the Canadian model. They therefore recommended, in paragraph 82 of their Report, that the new Constitution should
60 [2003] UKHL 78, paragraphs 70 – 73.
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reverse the decision taken in 1962 and should adopt the pattern of the European Convention on Human Rights. This would bring Trinidad and Tobago into line with other Commonwealth Caribbean constitutions. They appended a draft Constitution which would have carried this recommendation into law. Notably, that draft contained no savings clause for existing laws. As the Commission explained in their Report, para 86: “We have not included in the draft any clause preserving existing legislation. Where an existing law abridges or infringes a fundamental right, its validity will depend on its falling within one or other of the permitted exceptions and also on its satisfying the test of what is reasonably justifiable in a society with a proper respect for the rights and freedoms of the individual.”
For reasons that are not clear, the Commission’s recommendations were not adopted. In 1976 Parliament enacted the present Constitution and Trinidad and Tobago passed from being a constitutional monarchy with the Queen as the head of state to being a republic with the President as the head of state. Many of the alterations introduced by the new constitution were simply designed to make this change. Similarly, much of the 1976 Act is concerned to ensure a seamless transition to a republic by translating references which were appropriate under the old constitution to references that are appropriate under the new constitution.
A comparison of the texts of the two constitutions shows,, that in 1976 the opportunity was indeed taken to make some alterations that went beyond converting the country from a constitutional monarchy to a republic. In particular, unlike the 1962 constitution, the present Constitution begins with three sections under the heading “Preliminary”. Among them is section 2 which provides:
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“This Constitution is the supreme law of Trinidad and Tobago, and any other law that is inconsistent with this Constitution is void to the extent of the inconsistency.”
Parliament thus took the opportunity to insert into the 1976 constitution a provision, similar to section 2 of the Jamaican constitution and to equivalent sections in other constitutions, which defines the status of the Constitution as the supreme law and declares expressly that any law which is inconsistent with the Constitution is void to the extent of the inconsistency. This section in effect spelled out what the Board had assumed to be the position in de Freitas v Benny [1976] AC 239 following the approach in Director of Public Prosecutions v Nasralla [1967] 2 AC 238. A few years later section 52(1) of the Canadian Constitution Act 1982 contained a similar provision and so made it plain that, in Canada too, the new constitution was to be regarded as supreme.
But beyond that, the alterations are relatively minor. Above all, the rights and freedoms in the new Constitution are not modelled on the European Convention; they adhere to the scheme in the 1962 Constitution. As we saw, that scheme only worked because there was a savings clause that preserved existing laws and so defined the scope of the rights and freedoms that were expressed in absolute terms in that Constitution. Since the same scheme was being followed in the new Constitution, there would be the same need to include a savings clause. And that is what we find. [Emphasis added.]
75. In relation specifically to the savings of existing law clause in the 1976 Constitution (section 6(1)), they observed:61
61 [2003] UKHL 78, paragraph 74. Page 46 of 94
“This is plainly intended to be the savings clause that will perform the same necessary function under the new Constitution as section 3 performed under the 1962 Constitution.”
76. Our comments on their Lordships commentaries on the 1962 and 1976 Constitutions are as follows: (a) Clearly the Trinidad and Tobago 1962 Constitution “was unusual” in the approach taken to the human rights provisions. We prefer to think of this in terms of intentional and agreed uniqueness arising out of robust debate and negotiations. The existing socio-political and historical contexts which informed the process establish this to be so.
(b) We accept as correct the interpretation given by Lord Devlin in Nasralla to sections 2 and 26(8) of the Jamaican Constitution (the supreme law and saving law clauses) and applied to Trinidad and Tobago in the absence of a supreme law clause in the 1962 Constitution, but in the face of a protection against abrogation, abridgment or infringement (section 2) and a savings law provision (section 3). 62 In any event, all doubt was cast aside by the express enactment in the 1976 Constitution of a supreme law clause (section 2).
(c) We agree, that in relation to the supreme law clause (implied in the 1962 Constitution), the savings law clause and the protection against abrogation, abridgment or infringement clause, these provisions in both the 1962 and 1972 Constitutions were intended to and have the same essential meanings and effects.
(d) We note that “the object of these provisions63 is to ensure that no future enactment shall in any matter ... derogate from the rights which at the coming into force of the Constitution the individual enjoyed”.
62 In de Freitas v Benny. 63 That is, the conjoint effect/operation of the supreme law and savings law clauses. Page 47 of 94
(e) We note in particular that the effect of section 2 of the 1962 Constitution and therefore also of section 5 of the 1976 Constitution, is “to ensure that subject to three exceptions no future enactment of the Parliament ... shall in any way derogate from the rights and freedoms declared” in section 1 of the 1962 Constitution and therefore also from those in section 4 of the 1976 Constitution.
And we note carefully that those three exceptions were articulated as being: (i) Acts of Parliament passed during a period of public emergency and authorized by the Constitution.
(ii) Acts of Parliament authorized and passed in conformity with section 5 of the 1962 Constitution and section 13 of the 1976 Constitution.
(iii) Acts of Parliament amending human rights provisions of the Constitution.
(f) We also note with agreement, that the purpose of the savings law clause in the context of the supreme law clause and the declaration of rights in absolute and unfettered terms, is to not only protect existing laws from constitutional challenge on the basis of inconsistency with the human rights provisions in the Constitution; but equally importantly, “to define the scope and limits of the rights”.
In this regard, we say that no question arises as to whether, because the rights and freedoms stated were stated in absolute terms, the intention was to confer unfettered rights as declared. In our opinion, the true intention of the framers of the 1962 Constitution, that was continued in the 1976 Constitution, was to preserve all known restrictions and limitations to the declared human rights provisions in both species and genus.64 This is the broad intended purpose of the
64 For example, section 4(g) of the Constitution provides in absolute terms for freedom of movement. However, there are many existing laws which limit and restrict this freedom. Thus, by virtue of section 6 (savings of existing law clause) all pre-existing limitations and restrictions are deemed not to be invalid and inconsistent with section 4(g) – though in fact they entail a limitation of the right. Further, any future limitation that is in species or genus a Page 48 of 94
savings law clause in the context of a supreme law/inconsistency clause and a protection of rights clause.65
(g) Finally, we note the deference paid by their Lordships to the 1974 Constitution Commission’s interpretation of the 1962 constitutional provisions.66 In particular, their Lordships endorsement of the local commentary on the savings clause (section 2 of the 1962 Constitution), that: “These rights may be defined as the area of permissible activity when all the laws restricting the individual have been taken into account”. [Emphasis added.]
And also, their Lordships acceptance of the local commentary on the way in which future limitations and restrictions may be introduced and enacted, to wit: “...because there was from that time (1962) onwards to be a written Constitution, guaranteeing those rights and freedoms from abridgment or infringement, provision had to be made for validating future laws which might appear in any respect whatever to be in breach of that guarantee. Hence section 567 with its safeguards both of an affirmative vote by a special majority and if ‘shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual”. [Emphasis added.]
(h) As an aside, in so far as their Lordships expressed uncertainty as to why the 1974 Constitution Commission’s recommendations “were not adopted”, we point out that for locals the explanation is well known and always was – as explained above at paragraph 33. limitation ‘in a manner’ or ‘to an extent’ of an existing derogation of a fundamental right or freedom, it is also by virtue of section 6 deemed not to be invalid and inconsistent with the Constitution. Such ‘new’ laws do not require the section 13 special majority or express declaration. 65 As also provided for by sections 2, 5 and 6 in the 1976 Constitution. 66 We also note that three of the members of this 1974 Constitution Commission were: H.B.O. Wooding; T. Georges; and M. De la Bastide – all internationally recognized and acclaimed regional constitutional jurists. 67 As also provided for by section 13 in the 1976 Constitution. Page 49 of 94
77. It is difficult, in the face of this corpus of experience, understanding and interpretation, to conclude otherwise than that it demonstrates, we repeat, a consistent, clear and cogent understanding of the nature and scope of the fundamental rights freedoms declared in Trinidad and Tobago and also, of how any future limitations or restrictions were to be made effective by Parliament. This understanding and interpretation is part of the sitz im leben68 of our Constitution.
Recent ‘New’ Developments: Suratt and Omar Maraj 78. Have the goalposts been moved? And if so, on what basis have they been moved?
79. In two decisions of the Privy Council, first Kenneth Suratt v Attorney General69 and second The Public Service Appeal Board v Omar Maraj,70 the Board explicitly introduced proportionality as a test for determining the constitutionality of ordinary legislation. Both were judgments of Baroness Hale. In both, the issue whether simple majority legislation was inconsistent with sections 4 and 5 of the Constitution and did not require a special majority to be effective, was determined in part on the basis of whether the aims were legitimate, the means adopted rationally connected to those aims and the effects proportionate.
80. In Suratt’s case what was in issue was the constitutionality of the Equal Opportunity Act.71 The Court of Appeal had held that the act was unconstitutional, in part because of the inconsistency of some of its provisions with the section 4 rights and freedoms.72 The Act had been passed by a simple majority and not pursuant to section 13 of the Constitution. In the Court of Appeal Archie, J.A. (as he then was) had held,73 that because certain provisions of the Act were “inconsistent with the enjoyment of certain fundamental rights and freedoms guaranteed by the Constitution ... (and) since the Equal Opportunity Act was not passed with a special
68 The recognition that the meaning of a text is bound up with its function and purpose in a particular community/society. 69 [2007] UKPC 55. 70 [2010]UKPC 29. 71 Act No. 69 of 2000. 72 The right to enjoyment of property and the right to freedom of thought and expression, section 4(a) and (i) of the Constitution. 73 With whom Sharma, C.J. and Mendonca, J.A. had agreed. Page 50 of 94
majority,74 all of those provisions must be struck down”.75
81. However, the Privy Council by implication rejected this reasoning and applied a two step proportionality test, concluding, inter alia, that on the basis of proportionality the Act was constitutional and that there was in fact no inconsistency with any of the section 4 rights and freedoms.
82. Baroness Hale arrived at this conclusion by applying the following reasoning:76 “It cannot be the case that every Act of Parliament which impinges in any way upon the rights protected in sections 4 and 5 of the Constitution is for that reason alone unconstitutional. Legislation frequently affects rights such as freedom of thought and expression and the enjoyment of property. These are both qualified rights which may be limited, either by general legislation or in the particular case, provided that the limitation pursues a legitimate aim and is proportionate to it. It is for Parliament in the first instance to strike the balance between individual rights and the general interest. The courts may on occasion have to decide whether Parliament has achieved the right balance. But there can be little doubt that the balance which Parliament has struck in the EOA is justifiable and consistent with the Constitution.”
83. Baroness Hale was clear that: “The Equal Opportunity Act is not inconsistent with the Constitution of Trinidad and Tobago and should be implemented without further delay”.77
84. The two step test applied by the Board in Suratt’s case was as follows: (a) Does the limitation of the fundamental right pursue a legitimate aim. (b) If so, is that limitation proportionate to the aim.
74 That is, pursuant to section 13 of the Constitution. 75 See paragraph 4 and also paragraphs 33 et seq of the judgment. 76 [2007] UKPC 55, at paragraph 58. 77 [2007] UKPC 55, at paragraph 58. Page 51 of 94
As we will soon see, this is but a simplified version of the full-blown aims/means/proportionality test recently applied by the Privy Council in determining reasonable justifiability, in provisions containing wording similar to section 13(1) of the Constitution. The single premise for the application of the proportionality test by Baroness Hale, was her statement that the section 4 rights and freedoms are not absolute rights, but “qualified rights which may be limited ... by general legislation”.78
85. While there is no dispute, and never has been any, that the section 4 rights (or at least some of then) are not absolute rights, but rights that are and may be restricted or limited; what is not so readily accepted is how these limitations and restrictions are to be engaged by post-1976 legislation. Specifically, whether in Trinidad and Tobago this can be effected, apart from pre- existing limitations or limitations introduced during periods of public emergency, by a simple majority in Parliament or only by special majority and pursuant to section 13 of the Constitution.
86. In Omar Maraj Baroness Hale returned to her statement in paragraph 58 of Suratt and to the premise that “these rights are not absolute” 79 and concluded:80 “Legislation frequently has to draw distinction between different classes of people. Such distinctions may well be justified. Some distinctions are easier to be justified than others. But at the very least they must serve a legitimate aim and be rationally connected to that aim.”
87. Here we see the articulation of the need for a “legitimate aim” and for the means employed to limit the right to “be rationally connected to” the aim of the legislation, if a provision is not to be inconsistent with the Constitution.
88. The conundrum of course is that the rights in section 4 of the Constitution are framed in absolute terms with no express limitations or restrictions, save as are to be gleaned from existing law pursuant to the savings law clause.
78 See paragraph 58, of the judgment. 79 [2010]UKPC 29, at paragraph 31. 80 [2010]UKPC 29, at paragraph 32. Page 52 of 94
89. Lord Steyn, in a death penalty case from Trinidad and Tobago, Roodal v The State,81 had as recently as November, 2003 opined for the majority of the Board in that case, that:82 “The bill of rights under the 1976 Constitution was cast in absolute terms. There are undoubtedly implied limitations on these guarantees. One such limitation may derive from section 53 of the Constitution which vests in Parliament the power to make laws for the peace order and good government of Trinidad and Tobago: see Demerieux, Fundamental Rights in Commonwealth Caribbean Constitutions, 1992, at 87-89. Section 13 which contains the requirement that legislation inconsistent with the bill of rights must be "justifiable in a society that has a proper respect for the rights and freedoms of the individual" and be passed by a three fifths majority, is also relevant.”
90. Lord Steyn’s reference to the section 53 general power of Parliament to “make laws for the peace, order, and good government of Trinidad and Tobago”, as a source upon which limitations to the section 4 rights and freedoms can be grafted, is more than curious. This is because section 5 of the Constitution specifically states that: “Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgment or infringement” of any of the fundamental rights and freedoms. Section 53 is not mentioned and no express provision in Chapter I permits section 53 to be used as a basis to enact legislation inconsistent with sections 4 and 5. We note with agreement however, Lord Steyn’s recognition that section 13 was relevant to the issue of Parliamentary limitation of the fundamental rights.
91. It seems to us, that Lord Steyn in taking the position that he did on section 53 may have been influenced by the notion of Parliamentary supremacy, which is inapplicable in Trinidad and Tobago. It may also be that this was so for Baroness Hale in Suratt, and influenced her use of a proportionality test to save legislation from being inconsistent with the Constitution. It would also appear that the approach of Bereaux, J.A. in this case is influenced implicitly, at least in
81 [2003] UKPC 78. 82 [2003] UKPC 78, at paragraph 20. Page 53 of 94
part, by the notion that Parliament’s power to make law for peace, order and good government, generally includes the power to redefine or place limits on the fundamental rights and freedoms.
Contradictions 92. No doubt, it is these apparent contradictions of opinions in the Privy Council that prompted former Chief Justice Michael de la Bastide, when he was President of the Caribbean Court of Justice and in delivering the key-note address at a regional symposium on the 9th November, 2009, to state:83 “Another important and relatively recent development in the protection of constitutional rights in this region has been the introduction of the concept of proportionality into our jurisprudence. This concept is used to assist in determining whether a law that derogates from a constitutionally protected right or freedom is permissible and constitutional or impermissible and unconstitutional. It is generally recognised that fundamental human rights and freedoms are not absolute but qualified. It is usual for constitutions to make provision for derogation from the fundamental rights and freedoms which they enshrine.
... in the case of Trinidad and Tobago the fundamental rights and freedoms are stated in absolute terms and there is no provision which saves from invalidity Acts of Parliament passed by a simple majority which are inconsistent with the fundamental rights and freedoms of the individual. There is, however, in the Constitution of Trinidad and Tobago a section (section 13), which preserves the validity of an Act which is inconsistent with a fundamental right guaranteed by the Constitution if that Act has been passed by a three-fifths majority of all the members of each House, declares itself to be inconsistent with the fundamental human rights sections of the Constitution and is not shown not to be reasonably
83 The inaugural symposium: ‘Current Developments in Caribbean Community Law’, held at the Hyatt Regency, Port of Spain, paragraphs 17 and 19. Page 54 of 94
justifiable in a society that has a proper respect for the rights and freedoms of the individual.”
93. Then in making reference to three Caribbean cases that were determined by the Privy Council,84 Justice de la Bastide observed:85 “The pervasiveness which the proportionality test has achieved in our constitutional law prompts me to ask one or two questions. If the test applies to Acts of the Trinidad and Tobago Parliament whether or not they have been passed by an enhanced majority, what added protection is given to an Act which is passed by a three-fifths majority and declares its inconsistency with sections 4 and 5 of the Constitution? If the validity of every Act which infringes a fundamental right or freedom is to be determined by the same simple test of whether: (a) it has a legitimate objective and (b) it uses means to secure that objective which are proportionate to it, then what purpose is served by the lengthy statements of permitted limitations of, and derogations from, constitutionally protected rights and freedoms that are to be found in all of our Constitutions except one? How do we reconcile the existence of two requirements for an impinging law to be valid as provided for in the Constitutions of the OECS States in relation to which the burden of proof is on different parties, with the application of a single proportionality test?
I raise these questions not because of any dissatisfaction with the proportionality test per se but out of a concern whether an imported test is supplanting rather than supplementing, the tests which have been expressly ordained by our own written Constitutions.”
84 De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Land and Housing, [1999] 1 A.C. 69; Worme v Commissioner of Police of Grenada [2004] 63 WIR 79; and Suratt v Attorney General [2008] 1 A.C. 655. 85 The inaugural symposium: ‘Current Developments in Caribbean Community Law’, held at the Hyatt Regency, Port of Spain, paragraphs 31 and 32. Page 55 of 94
94. For us, the questions that were raised by Justice de la Bastide remain unresolved as long as we are bound by the decisions of the Privy Council in both Suratt and Omar Maraj. Indeed, the position taken by the Court of Appeal on two separate occasions when faced with constitutional challenges to ordinary legislation was that it was bound by the decisions in Suratt and Omar Maraj.86
95. In Ishmael v Attorney General,87 Bereaux J.A. in dealing specifically with the issue of the “correctness of the proportionality test applied by the Privy Council in Suratt”,88 stated the following:89 “In answer, I say three things. First, we are bound by the decision of the Board in Suratt. But a consequence of this binding precedent must be that the decision of the Court of Appeal in The Attorney General v Northern Construction Limited, Civ. Appeal No. 100 of 2002 must be reviewed. In that case, Archie, C.J. delivering the judgment of the Court applied the proportionality test in upholding the effectuality of section 33 of the Proceeds of Crime Act 2000 as being reasonably justifiable (in a society that has a proper respect for the rights and freedoms of the individual) under section 13 of the Constitution. The section had been found to be inconsistent with sections 4 and 5 but was upheld under section 13.
One of the questions to be considered will be whether the proportionality test is appropriate, both to the question of the inconsistency of the Act of Parliament with section 4 and 5 and to the question of reasonable justification under section 13. Any discussion on that issue must also embrace the question whether the introduction of section 13(1) into the Constitution of Trinidad and Tobago,
86 See Ishmael v Attorney General, Civ. App. No. 140 of 2008; and Ferguson v Attorney General, Civ. App. No. 185 of 2010. 87 Civ. App. No. 140 of 2008. 88 See paragraph 39 of the judgment. 89 See paragraphs 41 and 42 of the judgment. Justice of Appeal Bereaux also approved of the correctness of the proportionality test on two further bases: (i) “... the proportionality test is a valid principle of long standing” (at paragraphs 43 to 46); and (ii) “... the mode and manner of legislative regulation cannot be immutably fixed by existing law but will always depend on existing social needs and requirements” (at paragraphs 47 to 54). Page 56 of 94
renders the proportionality test more appropriate to reasonable justifiability under section 13(1) rather than to the issue of inconsistency with sections 4 and 5.”
96. In Ishmael Jamadar, J.A., in a specific reservation, had this to say on the matter:90 “I agree with the reasoning, decision and outcome in this case, on the limited basis that this court is bound by the decision of the Privy Council in Suratt and others v The Attorney General of Trinidad and Tobago.91 However, I note my reservations in relation to the clear intention of Parliament, consistently held and indicated since Independence in 1962 and confirmed in 1976 with the attainment of Republic status, that legislation that is or is likely to infringe, abridge or abrogate the entrenched fundamental rights of the citizen must secure a special majority in both houses to be enacted as law in Trinidad and Tobago92
This was a position specifically negotiated and agreed upon by the various social and political interests that emerged and existed at Independence and that continue to exist even to this day in Trinidad and Tobago. In this regard, Lord Diplock in Hinds v R93 seems to have clearly recognized and appreciated this need and requirement for a special majority, once legislation contains provisions which “however reasonable and expedient, are of such character that they conflict with an entrenched provision of the Constitution”. I remain troubled by the apparently divergent approaches of the Privy Council to this question (Hinds v Suratt), despite the attempt by Kangaloo, J.A. to reconcile them in Steve Ferguson & Ishwar Galbaransingh v Attorney General and Mc Nicholls.94 Thus, the decision of the Privy Council in Suratt raises a fundamental question (and apparent dilemma) as to what is the appropriate test
90 At paragraphs 72 to 75 of the judgment. 91 (2007) 71 WIR 391. 92 Section 13 (1) of the 1976 Constitution. 93 [1977] AC 95. 94 Civil Appeal No. 185 of 2010. Page 57 of 94
in relation to the section 13(1) override, that the Constitution reserves for the courts in determining the constitutionality of legislation on the basis of whether it is “reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.”
Is it the same proportionality test that one applies in the first instance to decide whether there is a need for a special majority at all (as has been done in this matter)? And if so, what is the practical effect on the test applied in the Attorney General v Northern Construction Limited95 in relation to the section 13 (1) override? Are we now in a ‘chicken and egg’ conundrum in relation to the intention, purpose and effect of section 13 of the Constitution, whereby the same aims-means proportionality test is being used to determine whether there is an infringement of constitutional rights and also, when there is an infringement, whether it is reasonably justifiable?
All of these questions have been raised by Bereaux, J.A., but I reiterate them because the time will soon come when they will have to be revisited and resolved, hopefully in light of the particular constitutional arrangements agreed to in Trinidad and Tobago and in the context in which this was done.”
97. This appeal therefore brings into sharp focus and compels a response to these questions that have been raised by several Caribbean judges since Suratt.96 The effect of Suratt is to read
95 Civil Appeal No. 100 of 2002. 96 See also Mendonca, J.A. in Civ. App. No. 185 of 2010, Ferguson v Attorney General, at paragraphs 26 to 32. At paragraphs 31 and 32 he stated: “Counsel’s submissions are not without merit and raise concerns of constitutional and fundamental importance. I may mention that others have raised concerns relating to the proportionality test (see the keynote address delivered in November 2009 by Justice de la Bastide, President of the Caribbean Court of Justice on the occasion of the inaugural symposium :Current Developments in Caribbean Community Law.”) The fact, however, is that Suratt which applied the proportionality test is binding on this Court even if it did so, as is the case, without a consideration of any of the issues raised by Counsel and whether it is appropriate in the context of our Constitution. It should be noted that the test was again recently applied by the Privy Council in Public Service Appeal Board v Omar Maraj [2010] UKPC 29.”
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into the Trinidad and Tobago Constitution, where no such provision exists and any such provision was intentionally omitted, a constitutional permission to limit or restrict declared rights where this is ‘reasonably required’, as provided for in say, the Grenadian Constitution97 or the Jamaican Constitution98 or the Antigua and Barbuda Constitution,99 and where none of these other Constitutions have the exact equivalent of the special majority express declaration Parliamentary override provided for by section 13 of the Trinidad and Tobago Constitution. Is this legitimate? In so far as it goes contrary to the text, context, policy and even precedents, we say, no.100
Distinguishing Suratt 98. In our analysis Suratt, though a decision of the Privy Council, is not an absolutely binding authority on this court in relation to whether the fundamental rights and freedoms in sections 4 and 5 “may be limited …. by general legislation …. provided that the limitation
“Of course Hinds is also binding on this Court. In so far as it states that the expediency and propriety of a law that is not passed by a special majority are not the concerns of the Court in determining its constitutionality, it seems to be inconsistent with Suratt and Omar Maraj. If this is so, the question that may arise is which one should be followed. In this regard it is relevant to note that Hinds was referred to in Suratt and there was no indication that there was any disagreement or intention to modify what was said in it. The inference is that the cases were not seen to be inconsistent. Perhaps the reason for this maybe that Lord Diplock’s comments seem to be more directed to the machinery for amending entrenched provisions in the Constitution and not to where an act may be inconsistent with the provisions of the Constitution. Suratt is however directly relevant to that question. In any event Lord Diplock’s comments were by way of general observation whereas the statements in Suratt relating to the proportionality test are relevant to the ratio of the case. The same can be said for Omar Maraj. Suratt, therefore is the authority that is applicable to a case where consideration is being given to whether an ordinary law infringes upon the fundamental rights provision. Having said that however, I do not consider that it is necessary to apply the proportionality test in this case and I have not.” And note the divergent approach taken by Kangaloo, J.A. (with whom Weekes, J.A. agreed) in Ferguson’s case, at paragraphs 21 to 26 of the judgment. 97 See Worme; and see also, sections 9(5), 10(2), 11(2) and 12(3) of the Grenadian Constitution. 98 See for example, sections 19(2), 21(6), 22(2), 23(2). 99 See for example, sections 8(3) and 10(2). 100 See also the comments of the following Caribbean academics: A. Bulkan, Judicial Approaches to Limitation Clauses in Commonwealth Caribbean Bills of Rights [2012] WILJ 173, at page 185: “The only risk of approaching limitation clauses in this way – where both ‘reasonably required’ and ‘reasonably justifiable in a democratic society’ are measurable by the same test of proportionality – is that it could render the latter phrase otiose. ... More pertinently, written Constitutions heralded a significant transition from Parliamentary sovereignty to that of constitutional democracy. Taking all this history and context into account, then, considering whether a limiting law is reasonably justifiable in democratic society is a final important safeguard, not to be trivialized or treated as replicating a bare proportionality test”. And see T. Robinson, The Presumption of Constitutionality [2012] WILJ 1, at pages 20 – 23 “... the Privy Council cherry-picks from its own decisions discrete laconic statements on an issue; preferring these to more dense reasoning and evolving understandings in its own cases or that of intermediate courts on the same issue”. Page 59 of 94
pursues a legitimate aim and is proportionate to it” – per Baroness Hale, at paragraph 58 of Suratt. We say this for the following reasons. First, we note that in Baroness Hale’s judgment, twenty paragraphs of detailed analysis (paragraphs 38 to 57) addressed and dealt with the issue, whether the Equal Opportunity Act was unconstitutional in so far as it established a Tribunal with powers that were inconsistent with the fundamental constitutional principle of the separation of powers.101
99. However, in relation to the issue at hand, Baroness Hale dealt with it in one paragraph (paragraph 58) and with no detailed consideration of the context, text, policy or precedent arguments, that may have suggested her approach was incorrect. In particular, we note that though Baroness Hale does cite Hinds, this is only in relation to the separation of powers argument and not in relation to the issue at hand. We also note that no reference whatsoever was made to Thornhill. And we note that though there is one reference to section 13 (paragraph 57), it is also only in relation to the separation of powers discussion. In our opinion therefore, the decision of Suratt on this point is arguably ‘per incuriam’.102
100. Second, in our opinion there are now in existence two different approaches taken by the Privy Council on this issue, that of Hinds/Thornhill and of Suratt/Omar Maraj; the latter taken apparently without reference to the earlier decisions on this point. In such a situation, this five member panel of the Court of Appeal is free to choose (unbridled by the doctrine of stare decisis) between these two approaches.
101. Third, on a careful analysis of Baroness Hale’s reasoning in paragraph 58 of Suratt, the following observations are made. (a) In so far as it is suggested that legislation that merely ‘impinges’ or ‘affects’ the human rights provisions, may somehow be an exception to and distinguishable from
101 This issue was premised on the acceptance that ( as Baroness Hale summarized it (at paragraphed 38)): “It is implicit in all Constitutions on the Westminster model that judicial power of the state be exercised by a judiciary whose ‘independence from all local pressure by Parliament or by the executive’ is guaranteed … See Hinds v The Queen (1977) AS 195,221.” 102 We accept that the Privy Council as a final court is free to change its opinion and also that as the highest court the per incuriam principle is somewhat limited in its application. Page 60 of 94
the sections 2 and 5 prohibitions against ‘inconsistency’ and ‘abrogation, abridgement or infringement,’ we say that no such linguistic distinction is tenable. In any event, it is clear that what Baroness Hale was contemplating was “the limitation” of fundamental rights and freedoms by legislation. In her words: “These are… qualified rights which may be limited…. provided the limitation pursues a legitimate aim and is proportionate to it”. Every ‘limitation’ of a right is by definition inconsistent with what obtained previously and is therefore at least an ‘abridgement’ of that right. Such a limitation is therefore inescapably caught by the section 5 (1) prohibition and curtailment of Parliament’s power to legislate.
(b) This judicial introduction of an enhanced permission to Parliament to limit the sections 4 and 5 fundamental rights and freedoms, is in effect to read into the Constitution a legislative power that was explicitly excluded (by sections 2 and 5 (1) of the Constitution).
(c) Further, to equate proportionality with consistency, is to subsume two entirely different concepts into one. While disproportionality may often be a feature of legislation that is inconsistent with sections 4 and 5, we note that it is not a necessary requirement. A legislative intervention may be proportionate, but that is not to say that it is not also inconsistent with or a limitation of fundamental rights or freedoms. Thus, to equate proportionality with consistency is to disregard the meaning and purpose of sections 2 and 13 of the Constitution, which establishes inconsistency as the general threshold for the constitutionality of legislation.
(d) Finally, we note that ‘inconsistency’ with the sections 4 and 5 rights does not have to result in legislation being unconstitutional – provided, in the scheme of the Constitution, any such legislation is section 13 compliant. The end result is therefore, that any legislation that ‘limits’ the sections 4 and 5 rights is by definition ‘inconsistent’ with the Constitution (sections 2 and 5 (i)) and must be section 13 compliant to be effective notwithstanding the inconsistency.
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102. Fourth, we suggest that the statements in Suratt and Omar Maraj that we have critiqued, may have been the consequence of a Parliamentary Supremacy ‘mind set’ that did not adequately give consideration to the fact that in Trinidad and Tobago Parliament is not supreme.103 The Constitution is supreme. The Republic of Tobago is a sovereign constitutional democracy (section 1 (1) of the Constitution), in which the Constitution is the supreme law and any and all laws that are inconsistent with it are void to the extent of the inconsistencies (section 2 of the Constitution). We say therefore, that in the final analysis Suratt is a judicial intervention for which there is no textual warrant and ought not to be followed in this jurisdiction on this issue. In any event, we do not consider that Baroness Hale could have intended to lay down an approach that overlooks the clear terms of the Constitution. We note in this regard her statement in Suratt, that the alleged ‘impingement’ of freedom of expression “arguably goes no further in doing so than the existing law”.104 As we have explained, inconsistencies that are within the ambit of existing law limitations and restrictions, are ‘saved’ by section 6 of the Constitution. There is therefore no need in such circumstances to apply any proportionality test to determine inconsistency.
The Value of Proportionality 103. Lest it be thought that we are in some way against proportionality as a relevant tool in determining certain constitutional issues, we wish to state that this is not so. Most constitutional analysis requires different balancing exercises. In the case of human rights provisions, what is often invoked is the balancing of the public interest against private rights, or the balancing of two fundamental rights that may collide in a particular context. In such balancing exercises we readily accept that the idea of proportionality and its application can be helpful in determining how that balancing exercise is to be resolved.
103 As explained at paragraphs 90 and 91, Lord Steyn’s suggestion that the Parliament in Trinidad and Tobago can limit the fundamental rights and freedoms pursuant to section 53 of the Constitution (Parliament’s general power to make laws), is not consistent with sections 2 and 5 (1) of the Constitution. In our view it is premised on the notion of Parliamentary Supremacy and not Constitutional Supremacy as it operates in Trinidad and Tobago. 104 See paragraph 58. Page 62 of 94
104. In any event, we acknowledge the long standing pedigree of proportionality as a means to determine constitutional issues. In this regard we do no more than quote from the landmark American Supreme Court decision of 1819 in Mc Culloch v Maryland, when Chief Justice John Marshall rendered what many consider to be his finest constitutional judgment. In that judgment Chief Justice Marshall opined:105 “We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.” [Emphasis added.]
105. Our concern, aligned with Justice de la Bastide, is “not because of any dissatisfaction with the proportionality test per se but out of concern whether an imported test is supplanting rather than supplementing, the tests which have been expressly ordained by our own written Constitutions”. If this is indeed so, we are very concerned that this imposition is in disregard for local circumstances and understandings, even for the Constitution. In truth, we believe this to be the case, unconscious and well intended as it may be.
106. Indeed, in this case, as in Northern Construction, the application of a proportionality analysis has helped us determine that the conjoint effects of sections 5(5) and 61 of the Dangerous Drugs Act are not reasonably justifiable in Trinidad and Tobago; they permit, inter alia, the imposition of a mandatory minimum sentence, which may in certain circumstances be grossly disproportionate and inordinately excessive and which may bear little relation to the
105 [1819] 17 U.S. (4 Wheaton) 316 at 421. Page 63 of 94
actual crime committed or the individual circumstances of the guilty party or any other special considerations.106
Section 13 of the Constitution 107. What has been the approach of the courts to section 13 of the Constitution? This is the crucial question in these appeals because after all is said and done, these appeals involve the specific issue as to whether section 5(5) of the Dangerous Drugs Act is reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.
108. The difficulty we face arises only because of the decisions of the Privy Council in Suratt, Omar Maraj and in de Freitas v Permanent Secretary.107 We have already stated the problem through the express observations and reservations of Justices de la Bastide, Mendonca, Jamadar and Bereaux.
109. In de Freitas, which dealt with the Constitution of Antigua and Barbuda, the interpretation and application of the phrase “is shown not to be reasonably justifiable in a democratic society”,108 was considered by the Privy Council. In this regard Lord Clyde in delivering the judgment of the Board stated as follows:109 “Even if the subsection, with or without the supplementary provision sought to be implied by the Court of Appeal, satisfied the first of the two requirements already referred to, namely that it was a restraint upon the freedom of civil servants “reasonably required for the proper performance of their functions", it would still have to satisfy the second requirement of being “reasonably justifiable in a democratic society". Their Lordships were referred to three cases in which that phrase has been considered. In Government of the Republic of South Africa v. The Sunday Times Newspaper [1995] 1 L.R.C. 168 Joffe J. adopted from Canadian jurisprudence four criteria to be satisfied for a law to satisfy the provision in the
106 See the analysis of Bereaux, J.A. in his judgment in these appeals, with which we agree. 107 [1998] 53 WIR 131. 108 Section 12 (4) of the Constitution of Antigua and Barbuda. 109 At pages 143 to 144 of the report. Page 64 of 94
Canadian Charter of Rights and Freedoms that it be “demonstrably justified in a free and democratic society". These were a sufficiently important objective for the restriction, a rational connection with the objective, the use of the least drastic means, and no disproportionately severe effect on those to whom the restriction applies. In two cases from Zimbabwe, Nyambirai v. National Social Security Authority [1996] 1 L.R.C. 64 and Retrofit (Pvt.) Ltd. v. Posts and Telecommunications Corporation, [1996] 4 L.R.C. 489, a corresponding analysis was formulated by Gubbay CJ., drawing both on South African and on Canadian jurisprudence, and amalgamating the third and fourth of the criteria. In the former of the two cases at page 75 he saw the quality of reasonableness in the expression “reasonably justifiable in a democratic society" as depending upon the question whether the provision which is under challenge - “arbitrarily or excessively invades the enjoyment of the guaranteed right according to the standards of a society that has a proper respect for the rights and freedoms of the individual". In determining whether a limitation is arbitrary or excessive he said that the Court would ask itself - “whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.” Their Lordships accept and adopt this threefold analysis of the relevant criteria.”
110. Noteworthy is that the human rights provisions are set out quite differently in Antigua and Barbuda from the way it is done in Trinidad and Tobago. In particular, each right is stated, then restrictions permitted that are “reasonably required” for identifiable purposes, and finally, some of those reservations are made subject to the ‘catch all’ statement “and except so far as that provision ... is shown not to be reasonably justifiable in a democratic society.”110
110 See for example sections 10(2); 11(4); 12(4) and 13(2). Page 65 of 94
111. In Northern Construction v Attorney General111 the main issue was whether certain provisions of the Proceeds of Crime Act112 were not reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual, the Act having been enacted pursuant to section 13 of the Trinidad and Tobago Constitution. In the Court of Appeal Archie, J.A. (as he then was), in delivering the unanimous judgment of the Court of Appeal, applied the Nyambirai test as endorsed by the Privy Council in de Freitas, as the means to determining reasonable justifiability for the purposes of section 13, as follows: “It is to the effect that, in determining whether a statutory provision arbitrarily or excessively invades the enjoyment of a fundamental right, regard must be had to whether:113 The legislative objective is sufficiently important to justify limiting a fundamental right; The measures designed to meet the legislative objective are rationally connected to it; and The means used to impair the right or freedom are no more than is necessary to accomplish the objective.”
112. At first instance, Jamadar, J. (as he then was) had undertaken a lengthy analysis of what the ‘test/criteria demonstrative of the proviso’ should be.114 It had been agreed before him that the appropriate test was the Nyambirai/de Freitas formulation of the relevant criteria. Jamadar J. concluded that he would “be guided by the principles ... in the trilogy of cases from Zimbabwe and the Privy Council decision in de Freitas”.115 However, Jamadar J. in commenting on the use of the criteria identified in Nyambirai and de Freitas had this to say: “In the final analysis, the overriding test is whether the provision under scrutiny arbitrarily or excessively invades the enjoyment of the guaranteed right. The standard to use in determining whether this is so, is the standard of a society that has
111 H.C.A. No. 733 of 2002 and Civ App. No. 100 of 2002. 112 Act No. 55 of 2000. 113 See paragraph 23 of the judgment. 114 At pages 33 to 44 of the judgment. 115 At page 44 of the judgment. Page 66 of 94
proper respect for the fundamental rights and freedoms of an individual. The criteria are there, not as a substitute for the test, but to assist the court in its application and evaluation of the test.” [Emphasis added.]
113. The contradiction is obvious. Can the test for initially determining inconsistency with the Constitution also be the ultimate test used to strike down the Parliamentary override special majority and express declaration formula provided for by section 13 of the Constitution? If so, then is the section 13 override rendered practically otiose?
114. How is this dilemma to be resolved? Two possibilities are as follows: (a) Both Suratt and Omar Maraj are right and binding as is de Freitas, and there is a sliding scale of ‘degrees of disproportionality’ to be applied, it being lower to determine the threshold question of inconsistency and higher to determine the ultimate question of reasonable justifiability.
(b) Suratt/Omar Maraj are persuasive, but Hinds/Thornhill are to be preferred and the de Freitas criteria/formula is merely an analytical tool to assist a court in determining whether there is reasonable justifiability, the ultimate test being whether the inconsistency is not reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.
No doubt there are other permutations, but these will suffice for the purpose of demonstrating some of the choices faced by local judges.
115. In our opinion, given the status of Suratt and Omar Maraj and in light of our reservations as to their correctness in the context of the Trinidad and Tobago Constitution and our belief that the Hinds/Thornhill approach is the correct one, we are of the opinion that the second option above is at this time the most constitutionally legitimate approach to a section 13 inquiry by the courts. We say this in particular for the following reason.
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116. In Morgan v Attorney General116 the Privy Council did not expressly apply any proportionality test to the inquiry whether the Rent Restriction (Dwelling Houses) Act, 1981 was reasonably justifiable for the purposes of section 13 of the Constitution. The Act had been passed with the requisite special majority and express declaration. The Privy Council found the Act to be reasonably justifiable and dismissed the appeal. Lord Templeman’s approach was simply to consider that rent restriction was known and practiced in many societies that have a proper regard for the rights and freedoms of the individual, and that such restrictions on the enjoyment of property are reasonably justifiable.
117. In the Court of Appeal, Braithwaite, J.A. opined that: “the only question which the judge was asked to decide was whether the act was one ‘which was shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual’ ”.117 In his opinion, which is now accepted without reservation, the onus is on an applicant to prove a lack of reasonable justification and that it is a heavy one to satisfy.118
118. Kelsick, C.J. was of the opinion that: “The reasonableness or otherwise of a law has to be judged on broad principles, keeping in view the interest of the general public”.119 And again, that: “The Act is the expression of the will of a substantial majority of the elected representatives of the people to which great weight must be attached. It cannot be said that the reasonably well informed members of the electorate will regard the act as not being reasonably justifiable”.120
119. Hassanali, J.A. opined that: “The ultimate test is whether such Act is shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual”.121 And again: “And it is manifest that no inconsistency (whatever its nature or gravity) with section 4 or 5 of the Constitution is by itself conclusive against the validity of the
116 [1987] 36 WIR 396. 117 At page 6 of the judgment. 118 At pages 6, 17 and 18 of the judgment. 119 At page 8 of the judgment. 120 At page 17 of the judgment. 121 At page 2 of the judgment. Page 68 of 94
Act. In the making of his assessment the judge was required under section 13 to have due regard also to relevant circumstances – apart from the history or the objects of the Act, that is, to say circumstances affecting the Trinidad and Tobago society of which the respondent is an individual member”.122
120. We quote at length from the judges of the Court of Appeal because Lord Templeman in his opinion did not in any way criticize the approach of the Court of Appeal to the issue and in fact agreed with their judgments. From this we are persuaded that the de Freitas proportionality test is only at best an analytical tool that can in appropriate circumstances be an aid to determining reasonable justifiability – such as was done in Northern Construction and indeed, in these appeals.123
Context 121. We also take from the Court of Appeal judgments the importance of context on the analysis. In our opinion the formulation of the proviso requires a broad contextual approach. First, as Kelsick, C.J. and Hassanali, J.A. have pointed out in Morgan, the local context is important. Indeed, Kelsick, C.J. seemed to be using the “reasonably well informed member of the electorate” as the standard by which reasonable justification is to be measured. While we accept that this is so, it is not the whole picture. Lord Templeton made reference to ‘many societies which pay proper regard ...’ and we accept that the inquiry must not be limited in context to Trinidad and Tobago, but must also include other societies that are recognized to have a proper respect for the rights and freedoms of the individual. Indeed, in Northern Construction, such a regional and international survey was considered before determining whether section 33 of the Proceeds of Crime Act was not reasonably justifiable.
Worme’s Case 122. We also note, that in Worme v Police Commissioner of Grenada,124 which had to do with the Grenada Constitution, the approach of the Privy Council seemed to be to apply the
122 At page 3 of the judgment. 123 See the analysis of Bereaux, J.A. in his judgment in these appeals, with which we agree. 124 [2004] 63 WIR 79. Page 69 of 94
proportionality test to the first limiting threshold of ‘reasonably required for the purpose of protecting’ the right in question; but to take a more general approach to the proviso – “and except so far as that provision ... is shown not to be reasonably justifiable in a democratic society”.125
123. This is apparent from the explanation of Lord Rodger who delivered the opinion of the Board, as follows:126 “For much the same reasons as the Supreme Court, their Lordships reject this particular argument for saying that the crime of intentional libel is not reasonably required in Grenada. Looking at the position overall, they are satisfied that it is indeed reasonably required to protect people’s reputations and does not go further than is necessary to accomplish that objective.
Nor can the Board say that such a crime is not reasonably justifiable in a democratic society. Of course, some democratic societies get along without it. But that simply shows that its inclusion is not the hallmark of the criminal law of all such societies. In fact criminal libel, in one form or another, is to be found in the law of many democratic societies, such as England, Canada and Australia. It can accordingly be regarded as a justifiable part of the law of the democratic society in Grenada.” [Emphasis added.]
124. We note the reference to ‘many democratic societies’, which as we have explained above can be included in the scope of the inquiry and as was done in Northern Construction. And we note the reliance on reasonable justifiability in a democratic society as the ultimate basis of the test. We see Worme therefore, as supporting our view that the proportionality test in de Freitas
125 [2004] 63 WIR 79 page 87 c – f. We note that both of these thresholds existed in the provision in the Grenada Constitution that fell to be interpreted and applied (and does so in several others), and no doubt could not have been intended to be applied using entirely the same criteria or standards. 126 [2004] 63 WIR 79 at page 104 f – g. Page 70 of 94
is not essential for the determination of reasonable justifiability in section 13, but can be used as an aid to resolving the issue.
Summing Up 125. It is clear that the process of analysis contemplated by section 13 involves three discrete but interrelated steps. First, the determination of inconsistency. Second, the determination of reasonable justifiability. Third, the determination of the core inviolable and relevant standards of a democratic society against which the provisions challenged must ultimately be measured and the undertaking of that measurement. However, because section 13 requires the justifiability to be reasonable, proportionality ‘tests’ are an obvious tool that may be used to assist courts in determining section 13 challenges. Indeed, the proportionality analysis applied in Northern Construction, could also be used by Parliament as an initial filter, when it intends to pass legislation, which though inconsistent with the Constitution it seeks to render effective pursuant to section 13 of the Constitution. Having done this, Parliament ought also to go further and test the proposed legislation against the constitutional values that a society that has a proper respect for fundamental rights and freedoms recognises.
One Ultimate Test for Section 13 126. We therefore say, that the final standard of justification for limits on the sections 4 and 5 rights and freedoms, refers the Court in its inquiry back to the constitutional values entrenched in those very sections. This is because the standard set in section 13 for reasonable justification is ‘a society that has a proper respect for the rights and freedoms of the individual’. Therefore, in any section 13 analysis, a court must be guided by the values and principles which are embodied in due regard for the rights and freedoms of the individual. Examples of these overarching constitutional values are also to be found in the Preamble to the Constitution. It is these and the other overarching constitutional values and principles (such as respect for the dignity of the human person, the rule of law and the separation of powers) that are the final standard against which limitations on and restrictions of the rights and freedoms must be shown not to be
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reasonable and demonstrably justified.127 This is the effect of the analysis that Bereaux, J.A. has undertaken in relation to section 13, the outcome of which we agree with.
Ideology Informs Interpretation 127. The idea that statutory interpretation is an objective science is erroneous. Our subjective ideologies influence the canons of interpretation we select and deploy (from the wide menu available) in any particular case and/or the emphasis we place on the ones we select in the task of statutory interpretation. Which is ‘right’ or ‘wrong’, often depends only on whether it is the view of the majority or not. The differences in opinion between Bereaux, J.A. and ourselves on the applicability of the Suratt approach, resolve themselves in the final analysis to be differences based on ideology and interpretation.
128. This insight is well illustrated in two recent Privy Council decisions, in 2003 and 2004, in which ideology informed choice and emphasis in relation to the canons of constitutional interpretation used to justify the opinions in majority and minority judgments. These cases are: Roodal v The State128 and Boyce and Anor v R/Matthew v The State.129 Both cases were death penalty cases and involved constitutional challenges to mandatory death penalties, in the context of the supreme law clause (section 2) and the savings law clause (section 6) of the Constitution and the power of modification contained in the Act (section 5(1)) which brought the Constitution into effect.
The ‘Always Speaking’ Principle Boxed-In 129. At its heart the ideological difference in the opinions in these two cases involved the question when to deploy the ‘always speaking’ principle and canon of constitutional interpretation. At the outset it is important to note, that the nine panel Board in Boyce/Matthew was specially appointed to reconsider Roodal and in doing so overturned the majority decision in that case. The arguments were the same in both appeals. Thus the minority approach to the
127 See R v Oakes [1986] 1 S.C.R. 103, at paragraph 64. 128 [2003] UKPC 78 (a 3/2 split). 129 [2004] UKPC 32/33 (a 5/4 split). Page 72 of 94
‘always speaking’ constitutional principle in Roodal became the majority approach in Boyce/Matthew, and vice versa.
Roodal 130. In Roodal the majority approach was stated by Lord Steyn as follows:130 In any event, the question arises whether interaction between section 4 of the 1925 Act and the Interpretation Act must be approached as always speaking legislation to be construed in the world of today. This principle of construction was explained by the House of Lords in R v Ireland [1998] AC 147. How is it to be determined whether legislation is an always speaking or tied to the circumstances existing when it was passed? In R v Ireland the House of Lords held (at 158): "In cases where the problem arises it is a matter of interpretation whether a court must search for the historical or original meaning of a statute or whether it is free to apply the current meaning of the statute to present day conditions. Statutes dealing with a particular grievance or problem may sometimes require to be historically interpreted. But the drafting technique of Lord Thring and his successors has brought about the situation that statutes will generally be found to be of the 'always speaking' variety ..."
Section 10(1) of the Interpretation Act 1962 spells out this principle for Trinidad and Tobago by providing that "Every written law shall be construed as always speaking ...". [Emphasis added]
131. The minority approach was stated by Lord Rodger in the following way:131
130 [2003] UKPC 78, at paragraph 13. 131 [2003] UKPC 78, at paragraphs 76 and 77. Page 73 of 94
“In our view the interpretation favoured by the majority is not only untenable but liable to subvert the operation of the Constitution. In Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620, 628–629, para 15, Lord Millett described the essential nature of a constitution and the role of the judges when interpreting it. He said: "A constitution is an exercise in balancing the rights of the individual against the democratic rights of the majority. On the one hand, the fundamental rights and freedoms of the individual must be entrenched against future legislative action if they are to be properly protected; on the other hand, the powers of the legislature must not be unduly circumscribed if the democratic process is to be allowed its proper scope. The balance is drawn by the Constitution. The judicial task is to interpret the Constitution in order to determine where the balance is drawn; not to substitute the judges' views where it should be drawn."
Although he was referring in particular to the constitution of the Bahamas, his words are equally applicable to the constitutions of other countries, including Trinidad and Tobago.
In this case, as in any other, when construing the relevant provisions we, of course, bear in mind the injunction of Lord Wilberforce in Minister of Home Affairs v Fisher [1980] AC 319, 328G–H that provisions such as those to be found in Chapter I of the Constitution "call for a generous interpretation avoiding what has been called 'the austerity of tabulated legalism', suitable to give to the individuals the full measure of the fundamental rights and freedoms referred to."
But we do not overlook, either, his equally important statement, at p 329E–F, that:
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"Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences."
In order to achieve the proper interpretation, respect for the language of the constitution and for the traditions and usages that have given it meaning must march hand in hand with the principle of giving full recognition and effect to the fundamental rights and freedoms which it enshrines. This is only to reiterate what Lord Bingham of Cornhill said in Reyes v The Queen [2002] AC 235, 246, para 26: "As in the case of any other instrument, the court must begin its task of constitutional interpretation by carefully considering the language used in the Constitution. But it does not treat the language of the Constitution as if it were found in a will or a deed or a charterparty. A generous and purposive interpretation is to be given to constitutional provisions protecting human rights. The court has no licence to read its own predilections and moral values into the Constitution …"
The Board pointed out in Pinder v The Queen [2003] 1 AC 620, 628, para 14, that, if a court indulges itself by straining the language of the constitution to accord with its own subjective values, then, as Holmes J said in Otis v Parker (1903) 187 US 606, 609: "a constitution, instead of embodying only relatively fundamental rules of right, as generally understood by all English-speaking communities,
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would become the partisan of a particular set of ethical or economical opinions ..." [Emphasis added.]
Boyce 132. In Boyce, the majority opinion was delivered by Lord Hoffman. In his discussion on the Independence Constitution of Barbados and the Fundamental Rights provisions, Lord Hoffman made the following observations that are apposite in relation to the 1976 Trinidad and Tobago Constitution:132 “Parts of the Constitution, and in particular the fundamental rights provisions of Chapter III, are expressed in general and abstract terms which invite the participation of the judiciary in giving them sufficient flesh to answer concrete questions. The framers of the Constitution would have been aware that they were invoking concepts of liberty such as free speech, fair trials and freedom from cruel punishments which went back to the Enlightenment and beyond. And they would have been aware that sometimes the practical expression of these concepts - what limits on free speech are acceptable, what counts as a fair trial, what is a cruel punishment - had been different in the past and might again be different in the future. But whether they entertained these thoughts or not, the terms in which these provisions of the Constitution are expressed necessarily co- opts future generations of judges to the enterprise of giving life to the abstract statements of fundamental rights. The judges are the mediators between the high generalities of the constitutional text and the messy detail of their application to concrete problems. And the judges, in giving body and substance to fundamental rights, will naturally be guided by what are thought to be the requirements of a just society in their own time. In so doing, they are not performing a legislative function. They are not doing work of repair by bringing an obsolete text up to date. On the contrary, they are applying the language of these provisions of the Constitution according to their true
132 [2004] UKPC 32, at paragraphs 28 and 29. Page 76 of 94
meaning. The text is a "living instrument" when the terms in which it is expressed, in their constitutional context, invite and require periodic re- examination of its application to contemporary life. Section 15(1) is a provision which asks to be construed in this way. The best interpretation of the section is that the framers would not have intended the judges to sanction punishments which were widely regarded as cruel and inhuman in their own time merely because they had not been so regarded in the past.
All this is trite constitutional doctrine. But equally trite is the proposition that not all parts of a constitution allow themselves to be judicially adapted to changes in attitudes and society in the same way. Some provisions of the Constitution are not expressed in general or abstract terms which invite judicial participation in giving them practical content. They are concrete and specific. For example, section 63 of the Constitution says that the executive authority of Barbados shall be vested in Her Majesty the Queen. It would not be an admissible interpretation for a court to say that this meant that it should be vested in a Head of State who was appointed or chosen in whatever way best suited the spirit of the times; that the choice of Her Majesty in 1966 reflected the society of the immediate post-colonial era and that having an hereditary Head of State who lived in another country was out of keeping with a modern Caribbean democracy. All these things might be true and yet it would not be for the judges to give effect to them by purporting to give an updated interpretation to the Constitution. The Constitution does not confer upon the judges a vague and general power to modernise it. The specific terms of the designation of Her Majesty as the executive authority make it clear that the power to make a change is reserved to the people of Barbados, acting in accordance with the procedure for constitutional amendment. That is the democratic way to bring a Constitution up to date. [Emphasis added.]
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133. Then, on the specific matter of the proper approach to constitutional interpretation in the context of the issues in those appeals, Lord Hoffman stated (under the sub-heading ‘Principles of Construction’):133 “Mr Starmer suggested, and the minority agree, that concerns with rationality, ultra vires and the language and purpose of the section were a rather pedantic and inhibited approach to constitutional construction, deserving of condemnation as the tabulated legalism fit for conveyances and charterparties. He said that if his construction were adopted, effect would be given to the international obligations of Barbados and the constitution would be treated as a living instrument and not left trapped in a time-warp.
Both the attractive force of international human rights law and the "living instrument" principle have already been touched upon in their proper places. Their Lordships repeat that they do not intend to put in doubt the principle that if it is reasonably possible to give domestic law a construction which will accord with international law obligations, the courts will do so. But the construction of section 4(1) for which Mr Starmer contends is unreasonable to the point of being perverse. There is no ambiguity about the matter.
As for the "living instrument" principle, it can have no more application to the construction of sections 1 and 26 of the Constitution and section 4(1) of the Order in Council than to the provision that the executive power shall be vested in Her Majesty. The relevant provisions are completely specific. Section 26 says that (contrary to the general provisions of section 1) certain specifically defined laws ("existing laws") and their replacements (as defined) shall not be held inconsistent with sections 12 to 23. It follows that they cannot be void under section 1. And as the Constitution contains no provision apart from section 1 which affects the validity or requires the amendment of any law, it follows that all existing laws are to be unaffected by sections 12 to 23. In laying down this
133 [2004] UKPC 32 at paragraphs 53, 54, 55, 56 and 59. Page 78 of 94
rule, the Constitution employs no general concepts which need or invite being given a contemporary content by the courts. The protected laws and the extent of their immunity from challenge are stated in the most concrete terms. It is in any case difficult to address an argument that the law should be updated and not left trapped in a time-warp when the plain and obvious purpose of section 26 is that the existing laws should not be judicially updated by reference to sections 12 to 23.
There is no supra-constitutional principle by which it is presumed that the provisions of a constitution, even those concerned with fundamental rights, must be capable of being given an updated effect taking precedence over all other laws. To make such an assumption is to beg the very question at issue in this case, which is whether the Constitution left it to Parliament to decide whether existing laws should be amended to conform to sections 12 to 23.
The "living instrument" principle has its reasons, its logic and its limitations. It is not a magic ingredient which can be stirred into a jurisprudential pot together with "international obligations", "generous construction" and other such phrases, sprinkled with a cherished aphorism or two and brewed up into a potion which will make the Constitution mean something which it obviously does not. If that provokes accusations of literalism, originalism and similar heresies, their Lordships must bear them as best they can.” [Emphasis added.]
134. In Boyce, the minority (Lords Bingham, Nicholls, Steyn and Walker) adopted their reasons in Matthew on this point.
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Matthew 135. In Matthew the majority (Lords Hoffman, Hope, Scott, Rodger and Zacca J.) relied on their approach to interpretation articulated in their judgment in Boyce (above). Matthew itself therefore only gives us insight into the minorities’ approach to the issue.
136. Lords Bingham, Nicholls, Steyn and Walker, in a joint dissent, commenced their minority opinion as follows:134 In recent years the Privy Council has generally shown itself to be an enlightened and forward-looking tribunal. It has of course recognised that the provisions of any constitution must be interpreted with care and respect, paying close attention to the terms of the constitution in question. But it has also brought to its task of constitutional adjudication a broader vision, recognising that a legalistic and over-literal approach to interpretation may be quite inappropriate when seeking to give effect to the rights, values and standards expressed in a constitution as these evolve over time. It is such an approach which Lord Wilberforce stigmatised, in the phrase of Professor de Smith which he made famous, as "the austerity of tabulated legalism": de Smith, The New Commonwealth and its Constitutions (1964), p 194; Minister of Home Affairs v Fisher [1980] AC 319, 328. It is such an approach also which, in our opinion, vitiates the reasoning of the decision of the majority in this appeal. We consider the decision of the majority to be unsound in law and productive of grave injustice to a small but important class of people in Trinidad and Tobago. It is in our opinion clear that the interpretation of the 1976 Constitution of Trinidad and Tobago which commends itself to the majority does not ensure the protection of fundamental human rights and freedoms, degrades the dignity of the human person and does not respect the rule of law. With much regret, but without doubt, we dissent from the majority decision.
134 [2004] UKPC 33 at paragraph 34. Page 80 of 94
137. This approach reveals itself to be a pure policy approach of a self proclaimed “enlightened and forward-looking tribunal”.
138. In their narrative on the 1962 Independence Constitution the minority observed:135 Trinidad and Tobago became independent in 1962 under a Constitution which, in section 1, recognised and declared that certain human rights and fundamental freedoms had existed and should continue to exist without discrimination. These rights were listed in section 1 in a manner based on the Canadian Bill of Rights of 1960 rather than, as in some other countries in the Caribbean, directly on the European Convention on Human Rights. But the Canadian Bill of Rights drew its inspiration from the European Convention and the Universal Declaration of Human Rights 1948. Section 2 of the 1962 Constitution provided that subject to sections 3 (existing laws), 4 (public emergency) and 5 (Acts passed with an enhanced majority), no law should abrogate, abridge or infringe any of the rights and freedoms listed, and in particular no Act of Parliament should "(b) impose or authorise the imposition of cruel and unusual treatment or punishment". It was then however provided in section 3(1) of the Constitution that "Sections 1 and 2 of this Constitution shall not apply in relation to any law that is in force in Trinidad and Tobago at the commencement of this Constitution". There was thus (in section 1) a presumption of past and a promise of future enjoyment of the listed rights, but (in section 3) an absolute exclusion of laws in force on the commencement of the Constitution ("existing laws") from the scope of sections 1 and 2. [Emphasis added.]
139. We note, even in their ‘enlightened’ opinion, the recognition of the three situations when it was possible for legislation to limit or restrict the declared fundamental rights and freedoms.
135 [2004] UKPC 33 at paragraph 37. Page 81 of 94
140. Then, in an exposition on the “correct approach to interpretation of a constitution such as that of Trinidad and Tobago”, the dispute about which, is the real jurisprudence to be extracted from this trilogy of decisions, the minority said:136 “The correct approach to interpretation of a constitution such as that of Trinidad and Tobago is well-established by authority of high standing. In Edwards v Attorney-General for Canada [1930] AC 124, 136, Lord Sankey LC, giving the judgment of the Board, classically described the constitution established by the British North America Act 1867 as "a living tree capable of growth and expansion within its natural limits". The provisions of the Act were not to be cut down "by a narrow and technical construction", but called for "a large and liberal interpretation". Lord Wilberforce spoke in similar vein in Minister of Home Affairs v Fisher [1980] AC 319, 328-329, when he pointed to the need for a "generous interpretation", "suitable to give to individuals the full measure of the fundamental rights and freedoms referred to" in the constitution and "guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences". The same approach was commended by Dickson J, giving the judgment of the Supreme Court of Canada in Hunter v Southam Inc [1984] 2 SCR 145, 155: "The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind. Professor Paul Freund expressed this idea aptly when he admonished the
136 [2004] UKPC 33 at paragraph, 42 and 44. Page 82 of 94
American courts 'not to read the provisions of the Constitution like a last will and testament lest it become one'."
In Attorney-General of Trinidad and Tobago v Whiteman [1991] 2 AC 240, 247, Lord Keith of Kinkel, giving the judgment of the Board, said: "The language of a Constitution falls to be construed, not in a narrow and legalistic way, but broadly and purposively, so as to give effect to its spirit, and this is particularly true of those provisions which are concerned with the protection of human rights."
While entrenched human rights provisions expressed in a codified constitution are, like the other provisions of the constitution, a manifestation of the popular will, they nonetheless have a special place. As James Madison said in 1789, when commending what became the Bill of Rights in the United States Constitution, a Bill of Rights would have "a salutary effect against the abuse of powers" because "independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights": see Bernard Schwartz, The Great Rights of Mankind: A History of the American Bill of Rights (1992), p 168. Madison recognised risks of abuse by the legislative power as by the executive and also "the body of the people, operating by the majority against the minority": ibid, p 169. Constitutional protection of human rights of course operates for the benefit of all the citizens of any state. But it is of particular importance to the weakest and most vulnerable members of society, who lack wealth and influence, among whom those subjected to admittedly cruel and unusual treatment or punishment must ordinarily be included.” [Emphasis added.]
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141. We note that the primary concern of the minority was with the protection of the fundamental rights provisions, inter alia, against “recognized risks of abuse by the legislative power as by the executive …”.
142. We also note the value placed by the minority in the principles articulated in the Preamble to the Constitution as an aid to interpretation, particularly in relation to the human rights provisions, articulated as follows:137 “We attach significance to the principles upon which, as declared in the preamble to the 1976 (as to the 1962) Constitution, the people of Trinidad and Tobago resolved that their state should be founded. This declaration, solemnly made, is not to be disregarded as meaningless verbiage or empty rhetoric. Of course, the preamble to a statute cannot override the clear provisions of the statute. But it is legitimate to have regard to it when seeking to interpret those provisions (see Bennion, Statutory Interpretation, 4th ed, (2002) Section 246) and any interpretation which conflicts with the preamble must be suspect.”
143. Indeed, the ideological divide was so impassioned, that Lord Nicholls felt compelled to make some additional remarks. He stated, in relation to the majorities’ approach:138 “Self-evidently, an interpretation of the constitutions which produces this outcome is unacceptable. A supreme court of a country which adopts such a literal approach is failing in its responsibilities to the citizens of the country. A constitution should be interpreted as an evolving statement of a country's supreme law.
This is not to substitute the personal predelictions of individual judges for the chosen language of the constitution. Rather, it is a recognition that the values underlying a constitution should be given due weight when the constitution falls to be interpreted in changed conditions. A supreme court which fails to do this is
137 [2004] UKPC 33, at paragraph 46. 138 [2004] UKPC 33, at paragraphs 70, 71 and 72.
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not fulfilling its proper role as guardian of the constitution. It is abdicating its responsibility to ensure that the people of a country, including those least able to protect themselves, have the full measure of protection against the executive which a constitution exists to provide. Dickson J, delivering the judgment of the Supreme Court of Canada in Hunter v Southam Inc [1984] 2 SCR 145, 155, summarised the responsibility of the judiciary: "The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind."
For some years now their Lordships' Board, in discharge of its responsibilities as the supreme court of a number of countries, has sought to give effect to the human rights values declared and entrenched in the constitutions of these countries.
144. Once again we see at the heart of the concern expressed by Lord Nicholls, the desire to protect “the human rights values declared and entrenched in the constitutions of these countries”.
145. In our opinion, the minority view in Roodal which prevailed as the majority view in Boyce/Matthew, did not disavow the ‘always speaking’ principle in relation to the interpretation and application of the substantive human rights provisions themselves. What it did, was to draw
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a distinction between the legitimate role of the court in the interpretation and application of the human rights provisions “expressed in general and abstract terms” and of other constitutional provisions, such as the savings clause, which are concrete and specific.
146. It is exactly this distinction which is also at the heart of our criticism of the approach taken by the Board in Suratt and Omar Maraj; and which forms the essential basis of the difference between our opinion and that of Bereaux, J.A. . We share the concern of the minority about the need to protect the human rights provisions from unpermitted legislative and/or executive interference. Yet this is exactly the effect that the decisions in Suratt and Omar Maraj and the opinion of Bereaux, J.A. have, because contrary to an expressed constitutionally provided scheme for the making of any laws that are inconsistent with or in any way limit or restrict the declared and entrenched human rights provisions, Parliament is now permitted by a simple majority to override the human rights provisions once Baroness Hale’s simplified proportionality test is satisfied.
147. We are satisfied that this was not the intention of those who enacted the 1962 or 1976 Constitutions, as we have painstakingly attempted to demonstrate, using context, text, policy and precedent. In our opinion, the intention of Parliament in enacting the Constitution as the supreme law and in creating a Constitutional democracy in Trinidad and Tobago, was not to permissively allow for the limitation of rights, but rather to curtail Parliament’s future capacity to restrict or limit the declared sections 4 and 5 rights and freedoms. This as we have demonstrated, was achieved by the use of clear and concrete provisions that permitted Parliamentary restriction of the rights in only certain specified ways. The intention was, inter alia, to protect the rights from interference by simple majorities (except in the case of public emergencies or existing law), and this arrangement was the outcome of debate, discourse and negotiated agreement, arrived at in the unique historical and socio-political context that existed in Trinidad and Tobago in 1962, 1976 and which still exists in 2014.
148. If any further proof of the correctness of our understanding is required, we offer the following, taken from the dissenting opinion of Lords Millett and Rodger in Roodal (which
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eventually prevailed in Boyce/Matthew) and dealing with the intention and purpose of the savings law clause (section 6) in the Constitution:139 “Indeed, such indications as there are of Parliament's intention in enacting section 6 of the Constitution confirm that straightforward interpretation. According to the Official Report of the debate in the Senate on 23 March 1976, in reply to a proposal to amend clause 6, Senator Prevatt, speaking for the government, said this: "Maybe I should explain what the provisions which we have here are intended to achieve. We have existing laws which I suppose we will all agree should be saved. We must have some laws with which we could go into the new constitution. So we agreed that laws we have should be saved. If we save the laws, what we are saying is that if we re-enact it without alteration, more or less, it is the same law, then it will remain valid. If the laws in any way derogate from any rights as you have it now (existing law), then provided you do not go and derogate any further it will remain there. This is the intention we have in 6(1). Now clause 6(2) was redrafted because the lawyers felt that if you went and you changed the law and you derogated further than the previous law, it might be found that you did something that was invalid in the sense of the additional derogation. So what they were trying to do was to say, all right, in that case your additional derogation will remain valid. These were the intentions we had; nothing more than that.”
149. Clearly the intention of Parliament, was to only permit and protect simple majority legislative derogation of the entrenched rights that went “further than previous law” (previous law having been saved absolutely by section 6(1)), when any such changes in the law were covered by section 6(2) of the savings clause. A fortiori, changes in the law that went even further than the section 6 protection have to be section 2 and 5(1) compliant and must therefore
139 [2003] UKPC 78 at paragraph 93.
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be enacted in the ways specifically provided for in either Chapter I or section 54 of the Constitution.
150. In our opinion the effect of the decisions in Suratt and Omar Maraj and the opinion of Bereaux, J.A. is to read into the text of the Constitution an additional means by which the legislature can override the declared human rights provisions. That is to say, Parliament can now by a simple majority limit or restrict the human rights provisions beyond what was expressly permitted by the text of the Constitution, where the aims of the legislative intervention are legitimate, the means used to achieve it rationally connected to those aims, and where the impact or effects of the provisions are proportionate.
151. In our opinion, in the context of rights that are stated in absolute terms and only restricted or limited by existing law savings provisions and where there are specific provisions for enacting laws that are inconsistent with the sections 4 and 5 rights; the proportionality test in Suratt and Omar Maraj (as approved of by Bereaux, J.A.) reads into the Trinidad and Tobago Constitution, an open ended “reasonably required’ clause in relation to Parliament’s power to restrict or limit the human rights provisions under the ambit of its general power to make laws.
152. In our opinion this judicial intervention, ‘enlightened’ as it may be for some, is contrary to the intention and the language of the Constitution. Further, it serves to undermine the constitutional protection of the entrenched rights declared in sections 4 and 5, and enlarges the legislature’s power to encroach on those rights by simple parliamentary majorities. We pause to note, that in Trinidad and Tobago, under the existing electoral system of first-past-the-post, ‘winner take all’, we have experienced minority governments in terms of popular support on more than one occasion since Independence.140 Such governments command a simple majority in the Parliament, and would now be able to limit the entrenched human rights provisions without arriving at the kind of consensus that was the original intent of the Constitution and
140 See The Mechanics of Democracy: Proportional Representation v. First Past The Post, Jamadar P., Inprint Caribbean Ltd. 1989 and Democracy and Constitutional Reform in Trinidad and Tobago, Jamadar P. and Meighoo K., Ian Randle Publishers, 2008, at pages 111 to 116. Page 88 of 94
which remains a necessary current safeguard in Trinidad and Tobago. Finally, in our opinion this judicial intervention could effectively render otiose section 13 of the Constitution.
Final Positions 153. This extraordinary five-panel court was assembled primarily because of the difficulty that has been addressed in this opinion. As such, it is not unduly hampered by the existing opinions of three-member panels. We have however not arrived at our opinion easily.
154. While we have arrived at consensus around the outcome of these appeals, we are divided on the legitimacy of the Suratt/Omar Maraj approach to permitting legislative limitations and restrictions of the human rights provisions by simple majority legislation and beyond the specific categories provided for in the Constitution itself. On this we say, that if the Constitution is the supreme law (section 2), then we find it impossible to conceive how such a status can be so easily undermined without reference to any textual underpinnings. We certainly do not see that it can be justified by any such means. On the contrary, we see the constitutional text as disavowing such a judicial intervention, especially because it undermines the protection afforded the fundamental rights and enlarges the legislature’s capacity to do so.
155. In Trinidad and Tobago the Constitution is supreme and all laws and institutions, including the courts of law, are subject to its provisions. Until such time as the Constitution is changed, courts are obliged to uphold the Constitution and not to undermine it, and especially to be vigilant not to permit the potential undermining of the fundamental rights and freedoms that have been entrenched in the Constitution.
Postscript 156. This judgment has turned out to be quite lengthy. At this time, when brevity, simplicity and clarity are considered to be the hallmarks of a good judgment, this one appears to fall short. There have been long (almost endless) tracts of quotations placed in the body of the judgment, repetition of thoughts and opinions and copious footnotes. However, this has been done deliberately, because in this opinion we criticize two recent judgments of the Privy Council (our
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highest court) and differ from the opinions of some of our colleagues in the Court of Appeal. We think therefore that it is our duty to be completely transparent and thorough in setting out our thought processes and reasoning. In this regard, we thought it necessary to lay out fully the relevant materials that have led us to our conclusions. Our intention is not to disrespect any person, opinion or institution, but only to assert what we consider to be true and right. If in doing this we have somehow crossed the conventions that govern this noble profession, we apologize for this. In relation to the length of this judgment, our single mitigating factor is that on the 31st January, 2014 the full court issued a short, clear and concise four page executive summary of the issues, reasons and decisions in these appeals. That summary is attached as an appendix to this judgment.
______I. Archie, O.R.T.T. Chief Justice
______P. Jamadar Justice of Appeal
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APPENDIX 1 Executive Summary of Decision
Delivered on the 31st January, 2014.
Issues
The following issues are decided in this appeal:
(a) Is section 5(5) of the Dangerous Drugs Act (DDA) ambiguous or does it, in conjunction with section 61, create a mandatory minimum sentence of imprisonment for 25 years and a fine of one hundred thousand dollars ($100,000.00) with a default term of 15 years to be served consecutively? (This sentence is hereafter referred to as the mandatory minimum penalty)
(b) If a mandatory minimum penalty is created by section 5(5) (in conjunction with section 61), does the creation of such a sentence violate the constitutional doctrine of separation of powers?
(c) Is the imposition of the mandatory minimum penalty, inconsistent with sections 4 and 5 of the Constitution?
(d) If such a mandatory minimum penalty is inconsistent with sections 4 and 5 of the Constitution, is the inconsistency reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual as mandated by section 13(1) of the Constitution?
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Summary of Decision Issue (a) Section 5(5) of the Act is not ambiguous. It imposes for the crime of possession of a dangerous drug for the purposes of trafficking, a mandatory minimum penalty of a fine of one hundred thousand dollars ($100,000.00) and twenty-five years imprisonment with a further term of fifteen years imprisonment in the event of default of payment of the fine, to be served after the twenty- five year term of imprisonment is completed.
Issue (b) The creation by section 5(5) of the act, of a mandatory minimum penalty, does not violate the separation of powers. The fixing of a mandatory minimum penalty is a valid exercise of the legislative powers of Parliament.
Issue (c) Section 5(5) of the Act in conjunction with section 61, by removing the judicial discretion, imposes or authorises the imposition of a mandatory minimum penalty which is a breach of sections 4(a) and 4(b) of the Constitution. It breaches section 4(a) because it imposes or authorises the imposition of a penalty which is arbitrary, capricious and oppressive. It is arbitrary because, in this case, there is no rational relation of the penalty to the actual offence committed. It is capricious because the judicial discretion to adapt the penalty to the nature of the crime is removed. It is oppressive because, in this case, the mandatory minimum, of itself, is excessive and wholly disproportionate to the crime committed. It is also a direct breach of the prohibition in Section 5(2)(a) and 5(2)(e) of the Constitution.
It breaches the right to the protection of the law in section 4(b) of the Constitution, in this case, by authorising the imposition of cruel and unusual treatment or punishment by permitting the imposition of a mandatory minimum penalty which is grossly disproportionate and inordinately excessive and which bears little or no relation to the crime committed. It is therefore also a direct breach of section 5(2)(b) of the Constitution.
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Issue (d) The removal of the judicial discretion, by the conjoint effect of sections 5(5) and 61 of the Act, results in serious hardship to offenders because of the Court’s inability to apply a sentence appropriate to the nature of the offence, to the part played by the offender and to circumstances in mitigation. Such considerations are fundamental to the proper exercise of justice in a democracy, whatever the system of law. They are founded in fairness and respect for the dignity of the human person which is one of the bases upon which our nationhood was proclaimed.
The removal of such considerations from the sentencing process erodes the fundamental right to liberty and cannot be justified in any society which has a proper respect for the dignity of the human person and the inalienable rights with which we all, as human beings, are endowed. Thus, a provision which indiscriminately applies a mandatory minimum penalty to all offenders, irrespective of the nature of the offence, the degree of culpability of the offender and the mitigating circumstances affecting him, resulting in the offender serving a total of forty years imprisonment for one point one six kilogrammes (1.16Kg) of marijuana, is so grossly unfair and offensive of the fundamental principles of justice and the rule of law, that it cannot be reasonably justifiable in a society which has a proper respect to the rights and freedoms of the individual.
Sentence While this appeal is concerned only with section 5(5), we were invited to consider other provisions of the Dangerous Drugs Act that might impose mandatory minimum sentences. Mindful of that and of the fact that what is objectionable about section 5(5) is not the imposition of a harsh sentence but its mandatory nature, we are of the view that the appropriate relief is not to strike down section 5(5), but to strike down section 61 of the Dangerous Drugs Act, which disapplies section 68 of the Interpretation Act. This will permit the Courts to interpret this and similar sections in a way that takes into account the particular circumstances of the case while giving recognition to the gravity with which society views drug offences as reflected on the high potential penalties.
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The consequences of all this is that the appeals against sentence will be allowed and this Court is entitled to substitute an appropriate sentence.
But in substituting an appropriate sentence, we cannot disregard Parliament’s clear intention. The minimum sentence of twenty-five years must therefore be taken into account in any penalty to be meted out to the appellants. In doing so however we cannot be fettered in our discretion to apply the law appropriately to the facts and circumstances of the cases coming before us. This consideration is rooted in fairness. An accused must be punished for the crime he commits. But not only must his guilt or innocence be fairly considered, his punishment must also be fairly applied to the facts and circumstances of his case.
We therefore invite counsel’s submissions on the extent to which the minimum sentence is to be taken into account in each appellant’s case, before we make our final decision on sentence.
Order The Appeals against sentence are allowed. The court will invite written submissions on the appropriate sentences to be substituted in these appeals. Parties are to file written submissions on or before the 7th February, 2014. The Court’s final decision will be delivered on Friday 14th February, 2014.
I. Archie, C.J. P. Weekes, J.A. P. Jamadar, J.A. A. Yorke-Soo Hon, J.A. N. Bereaux, J.A.
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