Trinidad and Tobago, Judicial Committee of the Privy Council, Sharma & Ors v. Attorney General of Trinidad and Tobago [2009] UKPC 37
| Jurisdiction | Trinidad & Tobago |
| Subject Matter | Existing law,Letters Patent,Enactment,Right to equality of treatment |
1. Identification of the Sentence
Trinidad and Tobago, Judicial Committee of the Privy Council, Sharma & Ors v. Attorney General of Trinidad and
Tobago [2009] UKPC 37.
2. Abstract
The appellants, representatives of Hindu and Muslim groups, claimed that Letters of Patent which created the award
of the Trinity Cross of the Order of Trinity as the highest award within Trinidad and Tobago contained Christian
elements that violated their right to equality under section 4(b), their right to equality of treatment under section 4(d),
and their right to freedom of conscience and belief under section 4(h) of the 1976 Constitution of the Republic of
Trinidad and Tobago. The Judicial Committee of the Privy Council held that the Letters Patent had not been
enactments saved from constitutional scrutiny and thus the appellants rights had been violated.
3. Facts
In February of 1997, the National Awards Committee was asked to review the national awards of Trinidad and
Tobago and to make recommendations. The highest award in the country was the Trinity Cross of the Order of Trinity
and its purpose was to recognize citizens and other persons who had given distinguished or praiseworthy service.
The Committee acknowledged that the award had attracted negative criticism, especially as the word “Cross” was
seen to be a Christian symbol and the word “Trinity” could be seen as a Christian reference. The majority of the
Committee favoured a change to the name of the award to the Order of Trinidad and Tobago but no immediate action
was taken after the report was published.
Trinidad and Tobago is a multi-cultural, multi-ethnic, and multi-religious society with a large number of Christians,
Hindus, and Muslims. In November of 2004, the appellants claimed in a constitutional motion before the High Court
that the Trinity Cross of the Order of Trinity discriminated and continued to discriminate against them and others
who were not Christians, in violation of their right to equality under section 4(b), their right to equality of treatment
under section 4(d), and their right to freedom of conscience and belief under section 4(h) of the 1976 Constitution of
the Republic of Trinidad and Tobago.
In 2006, the trial judge held that, but for the savings clause for an existing law in section 6(1) of the 1976 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. Section 18 of the 1976 Constitution,
however, stated that enactments were to be saved and could not be held to be incompatible with the Constitution’s
rights provisions. This was a holdover from the former 1962 Constitution.
The judge held that the Letters Patent dated 26 August 1969 which established the Order of Trinity and the Trinity
Cross were to be considered existing enactments under the Constitution. As a result, the judge held the award could
not be invalidated because of its incompatibility with section 4 of the Constitution. The Court of Appeal upheld the
decision of the trial judge. The appellants then appealed to the Judicial Committee of the Privy Council (JCPC).
The JCPC held that the Letters Patent were not saved and exempt from the 1976 Constitution because it was not an
enactment under section 18. As a result, it was an infringement of the rights and freedoms of the Hindu and Muslim
communities and was unconstitutional.
4. Decision
The issues before the Judicial Committee of the Privy Council (JCPC) were i) whether the Letters Patent which
established the Order of Trinity and the Trinity Cross of the Order of Trinity were part of the existing law of the
Republic of Trinidad and Tobago within the meaning of section 6(1)(a) of the Constitution of 1976; and ii) whether
the rights of the appellants under sections 4(b), (d), and (h) of the 1976 Constitution had been violated.
On the first issue, the JCPC considered section 6(1)(a) that said that nothing within sections 4 and 5 of the
Constitution, the sections which laid out the fundamental rights and freedoms of citizens and allowed for their
protection, could invalidate an “existing law”. Under section 6(3), an existing law was one that was in effect in
Trinidad and Tobago before the 1976 Constitution. Section 18 of the 1976 Constitution, however, stated that
enactments were also to be saved and could not be held to be incompatible with the Constitution’s rights provisions.
This was a holdover from the former 1962 Constitution.
The JCPC held that the Letters Patent were to be considered a type of law-making by the Queen as the former Head
of State of Trinidad and Tobago but was not an enactment of the type saved by section 18 of the Constitution. It
was therefore not exempt from constitutional scrutiny.
On the second issue of whether the rights of the appellants to equality under section 4(b), their right to equality of
treatment under section 4(d), and their right to freedom of conscience and belief under section 4(h) of the
Constitution were violated, the JCPC held that, the Order of Trinity and the Trinity Cross of the Order of Trinity
violated all three rights and was unconstitutional. Since the Letters Patent were subject to the 1976 Constitution, the
creation of the award breached those constitutional provisions.
Based on the above, the JCPC held that the Letters Patent which created the Trinity Cross were not an enactment and
thus not saved under the 1976 Constitution of Trinidad and Tobago. As a result, it had to be in conformity with the
Constitution. It was not, and thus violated sections 4(b), (d), and (h). The JCPC therefore held that the appellants
were entitled to a declaration of incompatibility but that the declaration was to be limited to the date of the decision
as a retrospective declaration would be undesirable.
5. Concurring Judgment by Lord Mance
Lord Mance agreed with the decision but held that there was a shorter route that the Judicial Committee of the Privy
Council (JCPC) could have used. He held that the Letters Patent involved an executive act and thus, was capable of
being unconstitutional under section 4 of the 1976 Constitution.
6. Jurisprudence
Trinidad and Tobago, Judicial Committee of the Privy Council, Matthew v. State of Trinidad and Tobago
Jamaica, Judicial Committee of the Privy Council, Watson v. The Queen (Attorney General for Jamaica
intervening) [2005] 1 A.C. 472
Trinidad and Tobago, Judicial Committee of the Privy Council, Maharaj v. Attorney-General of Trinidad
and Tobago (No 2) [1979] A.C. 385
Trinidad and Tobago, Judicial Committee of the Privy Council, Thornhill v. Attorney General of Trinidad
and Tobago [1981] A.C. 61
Grenada, Court of King’s Bench, Campbell v. Hall (1774) 1 Cowp 204
Cape of Good Hope and Natal, Judicial Committee of the Privy Council, Re the Lord Bishop of Natal
(1865) 3 Moo PC 115
Malta, Judicial Committee of the Privy Council, Sammut v. Strickland [1938] A.C. 678
United Kingdom, High Court, Proclamation’s Case (1611) 12 Co Rep 74
United Kingdom, House of Lords, Council of Civil Service Unions v. Minister for the Civil Service
[1985] A.C. 374
United Kingdom, House of Lords, R (Bancoult) v. Secretary of State for Foreign and Commonwealth
Affairs (No 2) [2008] 3 WLR 955
United Kingdom, High Court of Chivalry, Manchester Corporation v. Manchester Palace of Varieties Ltd
7. Key words
Existing law
Letters Patent
Enactment
Right to equality of treatment
