Sanatan Dharma Maha Sabha of Trinidad and Tobago Inc., Maharaj, Islamic Relief Centre Ltd and Ishmael v Attorney General
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead,Lord Mance |
| Judgment Date | 28 April 2009 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No. 53 of 2008 |
| Date | 28 April 2009 |
Privy Council
Lord Hope of Craighead; Lord Carswell; Lord Brown of Eaton-under-Heywood Lord Mance; Lord Baroness Hale of Richmond
Privy Council Appeal No. 53 of 2008
Constitutional law - 1969 Letters Patent by Her Majesty the Queen establishing Order of Trinity for meritorious service — Muslim and Hindu organisations objecting to Trinity Cross as nations highest award due to Trinity being overt Christian symbol — Whether discrimination — Constitution, s.4 — Right to religious conscience and equality of treatment — Special committee appointed by Court of Appeal replacing word “Trinity” with “Society” — Whether Letters Patent still forming part of existing law — Finding that Crown in 1969 could not have retained any relevant prerogative legislative power to issue letters patent — Appeal allowed.
By Letters Patent dated 26 August 1969 a society of honour was established by Her Majesty the Queen in Trinidad and Tobago by and with the advice of the Cabinet. Its purpose was to accord recognition to citizens of Trinidad and Tobago and other persons who had rendered distinguished or meritorious service or for gallantry. It was to be known as the Order of Trinity. The highest award was to be the Trinity Cross of the Order of Trinity. Except for the Victoria Cross and the George Cross, it was to take precedence over all other decorations. The other awards, in descending order of importance, were to be the Chaconia Medal, the Humming Bird Medal and the Medal of Merit. The Letters Patent were gazetted on 6 September 1969. Thereafter a National Awards Committee for the Order was set up as provided for by the Constitution for the Order set out in the Schedule to the Letters Patent, nominations were received and awards began to be made.
The Cabinet's decision to advise Her Majesty that the Order should be established was taken on the advice of a Committee that was set up in 1963 to make recommendations on national awards. It collected data on national awards from the United Kingdom, from emergent countries of the Commonwealth and from the United States of America. The nation of Trinidad and Tobago is a multi-cultural and multi-racial society. So the Committee also sought the views of, and held discussions with, various religious and other organisations. It was on its recommendation, after having taken all these steps, that the name of the Order and of its highest award was chosen. But questions soon began to be raised about the propriety of the Trinity Cross as the nation's highest award. It was perceived by Hindus and Muslims living in Trinidad and Tobago as an overtly Christian symbol both in name and in substance.
In February 1997 the National Awards Committee was asked to examine the national awards system after public consultation. Its Chairman was Michael de la Bastide, then Chief Justice of Trinidad and Tobago. It acknowledged that the highest award had attracted negative criticism, especially as the word “Cross” was perceived by many to be a Christian symbol. It noted that the word “Trinity” too might be regarded as a Christian reference, although that objection if taken to its logical conclusion would mean that the country's name would also have to be changed. A majority of the Committee favoured a change of name to the Order of Trinidad and Tobago. No immediate action was taken on the publication of its report.
On 16 November 2004 the appellants applied by way of a constitutional motion in the High Court for various declarations to the effect that the Trinity Cross of the Order of Trinity discriminated and continued to discriminate against them and others who are not Christians, contrary to sections 4(b), (d) and (h) of the Constitution of the Republic of Trinidad and Tobago. On 26 May 2006 the trial judge, Jamadar, J. held that, but for the savings clause for an existing law in section 6(1) of the Constitution, the appellants were entitled to a finding that their constitutionally guaranteed rights to non-discrimination on the basis of religion and to equality and equal treatment by law and administrative action had been and continued to be breached by the creation and continuation of the award of the Trinity Cross. As he explained at p 76 of his judgment, he located the infringement of heads (b), (d) and (h) of section 4 through the conjoint effect of those provisions. But he declined to make the declarations that the appellants had asked for. This was because in his opinion the Letters Patent establishing the Constitution of the Order of Trinity and the Trinity Cross must be deemed to be existing law, so they could not be invalidated on the ground of their inconsistency with the rights and freedoms declared in section 4. He dismissed the action and held that each party must bear its own costs. On 20 December 2007 the Court of Appeal (Hamel-Smith, C.J. (ag.), Warner and Archie J.J.A.) dismissed, with costs, the appellants' appeal against the decision of the trial judge. It is against that decision that the appellants now appeal, with leave of the Court of Appeal, to their Lordships' Board.
THE ISSUE BEFORE THE BOARD
Before the Court of Appeal the State did not challenge the trial judge's findings that the award of the Trinity Cross infringed sections 4(b), (d) and (h) of the Constitution. On the contrary, as Hamel-Smith, C.J. (Ag.) noted at the outset of his judgment, it has taken steps to have the award replaced. A Committee was appointed to review all aspects of the award of the Trinity Cross. On 17 April 2008, having considered a follow-up report of the Committee, the Cabinet agreed that the name of the highest national award should be The Order of the Republic of Trinidad and Tobago, that the name of the Society to replace the Order of the Trinity should be The Distinguished Society of Trinidad and Tobago, that the highest national award should be re-designed so as to replace the Cross with a Medal and that the Letters Patent should be amended to give effect to those decisions. The question whether the award of the Trinity Cross was discriminatory in the respects found by the trial judge is therefore no longer in issue.
The issue which their Lordships have been asked to consider is whether the Letters Patent which established the Order of Trinity were part of the existing law of the Republic of Trinity and Tobago within the meaning of section 6(1)(a) of the Constitution of 1976. The appellants maintain that they have an interest to argue this point notwithstanding the decisions that have now been taken to replace the Trinity Cross. The respondent has not sought to argue the contrary, and their Lordships consider that he was right not to do so. It is clear that, but for his finding that the Letters Patent were part of the existing law, the trial judge would not have dismissed the action but would have granted at least some of the declarations the appellants sought. Moreover, while the decisions that have now been taken have resolved the issue for the future, they do not alter the fact that, for as long as it continued to be the nation's highest award, the Trinity Cross had been since its creation, for the reasons explained by the trial judge, discriminatory. The appellants are entitled to a declaration to that effect, if this is not precluded by the existing law clause.
THE EXISTING LAW PROVISIONS
Section 6(1)(a) of the Constitution of 1976 provides that nothing in sections 4 and 5, which enshrine fundamental human rights and freedoms and provide for their protection, shall invalidate “an existing law”. “Existing law” is defined by section 6(3) of the 1976 Constitution as meaning a law that had effect as part of the law of Trinidad and Tobago immediately before the commencement of the Constitution. “Law” is defined in section 3(1), which states that it “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.”
The Constitution of the Republic of Trinidad and Tobago Act, 1976 (“the 1976 Act”) contains a number of transitional and savings provisions. Section 18 deals with enactments. The expression “enactments” has a narrower meaning here than the word “law” as defined by section 3(1) of the Constitution, as section 18 makes clear. It does not cover the same ground, as the meaning that is given to this expression for the purposes of section 18 is a qualified one. It states:
“All enactments passed or made by any Parliament or person or authority under or by virtue of the former Constitution and not before the appointed day declared by a competent Court to be void by reason of any inconsistency with any provision of the former Constitution, including in particular sections 1 and 2 thereof, and that are not repealed, lapsed., spent or that had not otherwise had their effect, shall be deemed to have been validly passed or made and to have had full force and effect as part of the law of Trinidad and Tobago immediately before the appointed day, even if any such enactments were inconsistent with any provision of the former Constitution including in particular sections 1 and 2 thereof.”
The expression “the former Constitution” refers to the Trinidad and Tobago Constitution set out in the Second Schedule to the Trinidad and Tobago (Constitution) Order in Council 1962 which was replaced by the 1976 Constitution when Trinidad and Tobago became a Republic on 1 August 1976. Sections 1 and 2 of the 1962 Constitution were the predecessors of what are now sections 4 and 5 of the Constitution of 1976. Section 22 provided for the establishment of Parliament, and section 36 conferred on it the power to make laws. Existing laws were preserved...
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