A.G. of Trinidad and Tobago v McLeod

JurisdictionUK Non-devolved
JudgeLord Diplock J.
Judgment Date11 January 1984
Docket NumberPrivy Council Appeal No. 24 of 1982
CourtPrivy Council
Date11 January 1984
A.G. of Trinidad and Tobago
and
McLeod

Lords Diplock; Lord Elwyn-Jones; Lord Keith; Lord Roskill; Lord Templeman

Privy Council Appeal No. 24 of 1982

Court of Appeal

Constitutional Law - Constitution — Amendment — Non — entrenched provision

Lord Diplock J.
1

The question of substantive law in this appeal is whether Act No. 15 of 1978, of which the long title is “An Act to amend the Constitution of the Republic of Trinidad and Tobago Act, 1976”, (“the Amendment Act”) is void under section 2 of the Constitution because it was not supported at the final vote thereon by not less than three-quarters of all the Members of the House of Representatives (“the House”).

2

The respondent, Errol McLeod, contended that a favourable vote of this size in the House was required, by section 54(3) of the Constitution, in order to validate the Amendment Act which purported to amend section 49(2) of the Constitution by adding to the four existing paragraphs, which set out circumstances in which a member of the House is required to vacate his seat, a fifth paragraph, in the following terms:–

“(e) having been a candidate of a party and elected to the House, he resigns from or is expelled by that party.”

3

The appeal also raises a subsidiary question of procedural law as to whether Mr. McLeod's proper remedy was by originating motion for redress under section 14(1) of the Constitution, for which the procedure was regulated by Order 55 of the Rules of the Supreme Court, or was by the ordinary process of an originating summons for a declaration that the Amendment Act was void.

4

The facts which gave rise to the originating motion can be stated very shortly. Mr. McLeod stood for election to the first parliament of the Republic as a candidate of the United Labour Front. He was duly elected, but would appear to have fallen out with the party leadership by the spring of 1978. The Amendment Act received 27 favourable votes in the House. This in number fell short of three-quarters of the total membership by one vote. It was assented to by the President on 19th April 1978. On 24th April, 1978, a letter was addressed to Mr. McLeod by the General Secretary of the United Labour Front threatening him with disciplinary proceedings by the party. To this Mr. McLeod reacted promptly; on 28th April 1978, he issued in the High Court an originating motion under section 14(1) of the Constitution seeking a declaration that the Amendment Act was null and void, and an order restraining the Speaker of the House from making a declaration that Mr. McLeod had resigned from, or had been expelled by, the party as a candidate of which he had been elected. The claim to an injunction was based on section 4 of the Amendment Act. This inserted a new section in the Constitution, numbered 49A, which provided for such a declaration being made by the Speaker, upon his being informed by the Leader in the House of the party as a candidate of which the member was elected, of the resignation or expulsion from that party of a member. Upon the expiration of fourteen days from such declaration section 49A obliged the member to vacate his seat unless within that period he instituted legal proceedings to challenge the allegation that he had resigned, or his expulsion.

5

The proceedings which Mr. McLeod instituted by originating motion were heard by Bernard J., on 19th December 1978. He dismissed Mr. McLeod's application on the ground of substantive law that section 49(2) of the Constitution, that the Amendment Act purported to alter, was not entrenched by section 54(3) of the Constitution. It could thus, under section 59 of the Constitution, be validly passed by a majority of members present and voting in the House and the Senate respectively.

6

Mr. McLeod's appeal from the dismissal of his motion was allowed by the Court of Appeal on 29 th July 1981. They granted the declaration that he sought. Shortly after this, however, the Parliament of which he was a member was dissolved; and Mr. McLeod did not stand for re-election to the new Parliament. He ceased to have any further interest in the proceedings that he had started, with the result that although his name appears upon the record as respondent Mr. McLeod has taken no part in the appeal to this Board for which the appellants, the Attorney General and the Speaker, obtained final leave on 5th April 1982. Their Lordships have thus been deprived of the advantage of hearing any argument adverse to that that was presented on behalf of the appellants; though, so far as the point of substantive law is concerned, this handicap has been mitigated by the three separate closely reasoned judgments of the Court of Appeal in the respondent's favour.

7

Section 2 of the Constitution of Trinidad and Tobago provides:–

“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.”

8

supreme the Constitution is not immutable. As was pointed out in the majority judgment of the Judicial Committee in Hinds and others v. Regina [1977] A.C. 195 at p. 214 constitutions on the Westminster model, of which the Constitution of the Republic of Trinidad and Tobago is an example, provide for their future alteration by the people acting through their representatives in the parliament of the state. In constitutions on the Westminster model, this is the institution in which the plenitude of the state's legislative power is vested.

9

Such is the case in Trinidad and Tobago. Section 54(1) of the Constitution provides expressly that Parliament may alter any of the provisions of the Constitution. Except as respects those provisions of the Constitution (“the entrenched provisions”) specified in subsections ( 2) or (3) of section 54, an Act of Parliament altering a provision of the Constitution and containing, as sub-section (5) requires, an express statement that such is its purpose, is valid and effectual if passed in the House of Representatives and the Senate in accordance with sections 59 to 61: that is to say by a simple majority of the members in each House present and voting thereon, and assented to by the President.

10

As respects the entrenched provisions it is convenient to set out sub-sections (2), (3) and (6) of section 54 in full, (omitting only references to the Trinidad and Tobago Independence Act, 1962):–

  • “54(2) In so far as it alters –

    • (a) sections 4 to 14, 20(b), 21, 43(I), 53, 58, 67(2), 70, 83, 101 to 108, 110, 113, 116 to 125 and 133 to 137; or

    • (b) section 3 in its application to any of the provisions of this Constitution specified in paragraph (a),

      a Bill for an Act under this section shall not be passed by Parliament unless at the final vote thereon in each House it is supported by the votes of not, less than two-thirds of all the members of each House.

  • (3) In so far as it alters –

    • (a) this section;

    • (b) sections 22, 23, 24, 26, 28 to 34, 38 to 40, 46, 49(1), 51,55, 61, 63, 64, 68, 69, 71, 72, 87 to 91, 93, 96(4) and (5), 97, 109, 115, 138, 139 or the Second and Third Schedules;

    • (c) section 3 in its application to any of the provisions specified in paragraph (a) or (b); or …..

  • (6) In this section references to the alteration of any of the provisions of this constitution …include references to repealing it, with or without re-enactment thereof or the making of different provisions in place thereof or the making of different provisions in place thereof or the making of provision for any particular case or class of case inconsistent therewith, to modifying it and to suspending its operation for any period.”

11

It is to be noted that whereas section 49(1) is included in the entrenched provisions specified in sub-section (3)(b) of section 54, section 49(2) does not figure among the provisions entrenched by either sub-section ( 2) or (3) of section 54. Sub-section (1) of section 54 therefore authorised its alteration by an Act of Parliament passed in the same way and by the same majorities in each House as an ordinary law, provided that it stated, as the Amendment Act did in its long title, that its purpose was to alter the Constitution.

12

It was upon this simple ground that Bernard J. decided the point of substantive law against Mr. McLeod. Accordingly, he did not find it necessary to decide the question of procedural law.

13

The Court of Appeal, founding themselves upon the wide definition of “alteration” in section 54(6), held that sub-section (2) of section 49 as it stood before the passing of the Amendment Act had the effect of modifying section (1) of that section which is entrenched by section 54(3). Their reasoning was that the Amendment Act makes an additional modification to the entrenched sub-section (1) and accordingly, in order to be valid, the Bill for the Act must at the final vote thereon have been supported in the House of Representatives by the votes of not less than three-quarters of the members of the House, and this requirement had not been satisfied.

14

This makes it necessary for their Lordships to set out the full text of section 49(1) and (2) of the Constitution as these two sub-sections stood before the Amendment Act.

  • “49(1) Every member of the House of Representatives shall vacate his seat in the House at the next dissolution of Parliament after his election.

  • (2) A member of...

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