Dominic Suraj and 4 others v Attorney General of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Sales,Lord Hamblen,Lord Reed,Lord Hodge,Lady Rose |
| Judgment Date | 20 June 2022 |
| Neutral Citation | [2022] UKPC 26 |
| Docket Number | Privy Council Appeal Nos 0064 of 2021 and 0065 of 2021 |
| Court | Privy Council |
| Year | 2022 |
[2022] UKPC 26
Lord Reed
Lord Hodge
Lord Sales
Lord Hamblen
Lady Rose
Privy Council Appeal Nos 0064 of 2021 and 0065 of 2021
Privy Council
Trinity Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellants (Dominic Suraj, Marlon Hinds, Christopher Wilson, Bruce Bowen and Collin Ramjohn)
Peter Knox QC
Anand Ramlogan SC
Vishaal Siewsaran
Adam Riley
(Instructed by Ganesh Saroop (Trinidad))
Appellant (Satyanand Maharaj)
Anand Ramlogan SC
Kate O'Raghallaigh
Adam Riley
(Instructed by Freedom Law Chambers (Trinidad))
Respondent (Attorney General of Trinidad and Tobago)
Thomas Roe QC
Fyard Hosein SC
Natasha Jackson
(Instructed by Charles Russell Speechlys LLP)
Heard on 21 and 23 March 2022
Lord Sales AND( with whom Lord Reed, Lord Hodge and Lady Rose agree)
These appeals raise important issues relating to the fundamental human rights and freedoms enshrined under the Constitution of Trinidad and Tobago adopted in 1976 (“the Constitution”).
These issues arise in the context of regulations enacted by the Minister of Health (“the Minister”) in March/June 2020 using his powers under section 105 of the Public Health Ordinance 1940 (“the Ordinance”) to prevent or check a “dangerous infectious disease”, namely Covid-19.
The regulations challenged as being unconstitutional in the appeal of Suraj and others prohibited gatherings of more than five people in any public place without reasonable justification where the gathering was not associated with the provision of certain specified services.
The regulations challenged as being unconstitutional in the appeal of Maharaj prohibited gatherings of more than ten people in any public place without reasonable justification at religious services or gatherings unless they complied with Guidelines for Places of Worship issued by the Ministry of Health with effect from 22 June 2020 (“the Guidelines”).
In both appeals it is contended that: (1) the regulations infringed the appellants' rights under section 4 of the Constitution; (2) the regulations were not saved under the exception for existing law set out in section 6 of the Constitution; (3) the regulations could only have been made under sections 7 to 12 of the Constitution concerning public emergencies, and (4) the issue of the regulations by the Minister was contrary to sections 1 and/or 2 of the Constitution as being inconsistent with the notions of a sovereign democracy and/or constitutional supremacy.
In the Maharaj appeal further issues arise as to whether the regulations in question were unlawful for want of legal certainty and thereby ultra vires the Ordinance and unconstitutional.
A central issue in both appeals is whether ordinary or subsidiary legislation can impinge upon the fundamental rights and freedoms set out in section 4 of the Constitution as long as it pursues a legitimate aim and is proportionate to it, as stated by Baroness Hale of Richmond in giving the judgment of the majority of the Board in Suratt v Attorney General of Trinidad and Tobago [2008] AC 655, para 58 (“ Suratt”). This issue was the subject of marked disagreement between the majority (Bereaux, Weekes and Yorke-Soo Hon JJA) and the minority (Archie CJ and Jamadar JA) of the Trinidad and Tobago Court of Appeal in Francis v The State (2014) 86 WIR 418 (“ Francis”).
The relevant parts of the Constitution for the purposes of these appeals are summarised below.
The preamble of the Constitution provides:
“Whereas the People of Trinidad and Tobago —
(a) Have affirmed that the Nation of Trinidad and Tobago is founded upon principles that acknowledge the supremacy of God, faith in fundamental human rights and freedoms, the position of the family in a society of free men and free institutions, the dignity of the human person and the equal and inalienable rights with which all members of the human family are endowed by their Creator;
…
(c) have asserted their belief in a democratic society in which all persons may, to the extent of their capacity, play some part in the institutions of the national life and thus develop and maintain due respect for lawfully constituted authority;
(d) recognise that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law;
(e) desire that their Constitution should enshrine the above-mentioned principles and beliefs and make provision for ensuring the protection in Trinidad and Tobago of fundamental human rights and freedoms.
Now, therefore the following provisions shall have effect as the Constitution of the Republic of Trinidad and Tobago:
PRELIMINARY …”
In the Preliminary part of the Constitution it is provided that:
“1(1) The Republic of Trinidad and Tobago shall be a sovereign democratic State. …
2. 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.
3(1) In this Constitution —
…
‘law’ includes any enactment, and any Act or statutory instrument of the United Kingdom that before the commencement of this Constitution had effect as part of the law of Trinidad and Tobago, having the force of law and any unwritten rule of law …”
The Constitution sets out the principal institutions of the state which reflect its democratic character. Chapter 3 deals with the President, who is elected; and Chapter 5 deals with Executive Powers, the executive authority of the state being vested in the President (section 74). Chapter 4 deals with Parliament. Section 39 provides that it shall consist of the President, the Senate (ie the upper House) and the House of Representatives (ie the lower House). The Senate is composed of Senators appointed by the President, subject to certain requirements, for the period of a Parliament. The House of Representatives is composed of members who are elected. Section 53 provides:
“53. Parliament may make laws for the peace, order and good government of Trinidad and Tobago, so, however, that the provisions of this Constitution or (in so far as it forms part of the law of Trinidad and Tobago) the Trinidad and Tobago Independence Act 1962 of the United Kingdom may not be altered except in accordance with the provisions of section 54.”
Section 59 states that, save as otherwise provided in the Constitution, questions proposed for decision in either House shall be determined by a majority vote. In a manner similar to the Westminster Parliament, the House of Representatives may present Money Bills to the President for assent though not passed by the Senate (section 64), and for other Bills the House of Representatives has a power to do so after a certain period of delay, if the Senate rejects them (section 65). Thus, so far as law-making by statute is concerned, the democratic nature of the Constitution is primarily expressed in the legislative capacity of the House of Representatives exercised on the basis of ordinary majority votes.
Chapter 1 of the Constitution is headed:
“ THE RECOGNITION AND PROTECTION OF FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS”
Part I of Chapter 1 is headed “RIGHTS ENSHRINED” and contains sections 4 and 5 which provide:
“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;
(c) the right of the individual to respect for his private and family life;
(d) the right of the individual to equality of treatment from any public authority in the exercise of any functions;
(e) the right to join political parties and to express political views;
(f) the right of a parent or guardian to provide a school of his own choice for the education of his child or ward;
(g) freedom of movement;
(h) freedom of conscience and religious belief and observance;
(i) freedom of thought and expression;
(j) freedom of association and assembly; and
(k) freedom of the press.
5(1) 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 rights and freedoms hereinbefore recognised and declared.
(2) Without prejudice to subsection (1), but subject to this Chapter and to section 54, Parliament may not —
[there follows a list of specific things that Parliament may not do, including]
(a) authorise or effect the arbitrary detention, imprisonment or exile of any person;
…
(c) deprive a person who has been arrested or detained — … (iii) of the right to be brought promptly before an appropriate judicial authority; …
…
(h) deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid rights and freedoms.”
These provisions replicate almost precisely sections 1 and 2 of Trinidad and Tobago's 1962 Constitution, enacted at independence (“the 1962 Constitution”). As is well known, sections 1 and 2 of the 1962 Constitution were in turn modelled on the Canadian Bill of Rights 1960.
Part II of Chapter 1 is headed “ EXCEPTIONS FOR EXISTING LAW” and contains section 6, the savings clause, which states that nothing in sections 4 and 5 “shall...
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