the republic of trinidad and tobago in the court of...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

CIVIL APPEAL NO. S-246 of 2020

CLAIM NO CV 2020-013708

BETWEEN

DOMINIC SURAJ

MARLON HINDS

CHRISTOPHER WILSON

BRUCE BOWEN

COLLIN RAMJOHN APPELLANT

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO RESPONDENT

-AND-

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CIVIL APPEAL NO. S-248 of 2020

CLAIM NO CV 2020-02223

BETWEEN

SATYANAND MAHARAJ APPELLANT

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

RESPONDENT

/CROSS-APPELLANT

Panel:

I. Archie CJ

M. Dean-Armorer JA

J.C. Aboud JA

Date of Delivery: April 20, 2021

Appearances:

Mr. Anand Ramlogan S.C. leads Ms. Renuka Rambhajan & Mr. Jared Jagroo instructed by Mr.

Ganesh Saroop & Mr. V. Siewsaran on behalf of Appellants

Mr. Reginald T.A. Armour S.C. leads Mr. Rishi P.A. Dass & Mr. Raphael Ajodhia instructed by

Ms. Savi Ramhit. Ms. Svetlana Dass & Ms. Diane Katwaroo on behalf of Respondents

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I have read the judgment of Dean-Armorer JA and I agree with it.

__________________

Ivor Archie

Chief Justice

I have read the judgment of Dean-Armorer JA and I too agree with it.

_________________

James C. Aboud

Justice of Appeal

JUDGMENT

Delivered by Justice of Appeal M. Dean-Armorer

Brief overview and Disposition

1. These two appeals arise out of restrictions imposed by the Public Health [2019 Novel

Coronavirus Regulations [2019-nCoV] 2020]1 which were made by the Minister of Health

pursuant to powers conferred by s.105 of the Public Health Ordinance2.

1 Referred throughout this Judgment as The Regulations 2 Public Health Ordinance Ch 12 No. 4 - 1940

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2. It is now a matter of history that in early 2020, all of mankind was plagued with an unknown

and highly infectious disease, Coronavirus, which came to be known by the acronym, Covid-

19. On January 30, 2020, the World Health Organisation (‘WHO’) declared the virus to be

a pandemic. On the following day, January 31, 2020 Her Excellency, the President of

Trinidad and Tobago, declared Covid-19 to be a dangerous infectious disease, under the

Public Health Ordinance.3

3. Pursuant to her Excellency’s declaration, the Government of the day published Regulations

with a view to suppressing the spread of the virus. The Regulations were replaced in quick

succession by others, which, in turn contained an adjusted response, appropriate to the

prevalence of the virus at the particular time.

4. Associated with the Regulations were Guidelines for Places of Worship (“the

Guidelines”). These did not form part of the Regulations, but were separately issued by the

Ministry of Health, notably on their website. They provided guidance for the conduct of

religious services, including directions on the need for social distancing, the use of religious

paraphernalia and proper sanitisation of worshippers, upon their entry into the venue of

religious services.

5. It was against Regulations (No. 9) and (No. 23), that the Appellants in both appeals have

mounted their constitutional challenge. The Appellants in the first appeal, Dominic Suraj

3 Public Health Ordinance Ch 12. No. 4

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and his co-appellants, contend that the Regulations (No. 9) were unconstitutional and ought

to be struck out as such.

6. The second Appellant, Pundit Satyanand Maharaj launched a narrower attack on the

Regulations (No. 23). He contended that the imposition of a criminal sanction, for the

contravention of the Guidelines was unconstitutional.

7. Pundit Maharaj was partially successful before the Trial Judge (the Judge). Consequently,

the Attorney-General filed a Counter Notice of Appeal.4 Suraj and his co-appellants were

however, altogether unsuccessful in their claim. What follows therefore, is our decision in

respect of two appeals and a counter- appeal.

8. In arriving at our decision, we considered the ambit of the saving law clause and whether

the Regulations (No. 9), which were otherwise intra vires the enabling statute, could be

struck down as unconstitutional. We also considered whether the Regulations (No.23) had

breached the second Appellant’s fundamental rights.

9. For reasons that will be fully explained below, we have held that the Public Health

Ordinance5 was protected by section 6 of the Constitution, as a saved law. Further, the

Regulations (No. 9) and (No. 23), being intra vires the Public Health Ordinance were also

protected from challenge.

4 The Counter Notice of Appeal was filed on September 30, 2020 5 Public Health Ordinance Chap 12 No. 4 - 1940

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10. Finally, we held that a literal interpretation of regulations 2(2) and 2(3) of the Regulations

(No. 23), did not have the effect of criminalising breaches of the Guidelines and the Judge

was plainly wrong so to find.

11. We therefore dismissed both appeals and allowed the counter-appeal.

Background

12. Dominic Suraj, a financial forensic investigator, was involved in charitable work. He

ministered in particular to Venezuelan refugees and did so through his church Avivamiento

Church of Trinidad.

13. On April 9, 2020, while Covid-19 was raging worldwide, and Trinidad and Tobago was

subject to restrictions imposed by the Regulations, Suraj, in furtherance of his mission to

the refugees, visited the Alicia’s Guest House, St. Anns, for the purpose of preparing a meal

for the refugees who were housed there.

14. At various times during the course of that evening, Suraj was joined by each of his four

friends, the other appellants in the first Appeal. At 11pm, police officers entered, arrested

them and took them into custody. They were charged for having breached Regulation 3(1)

(b) of the Regulations (No. 9).

15. Suraj and the other appellants insisted that they were not partying. They alleged that there

was no loud music and that they were appropriately socially distanced. They contended, as

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well, that the Alicia’s Guest House is private property and not a public place for the purpose

of the Regulations (No.9).

16. These are issues which the Judge did not consider. In our view, he was correct in his

approach, since the question whether Suraj and his friends were in breach of the Regulations

ought properly to have been considered and determined before the Magistrate, who was

seized of the case.

17. In fact, the charges were heard by her Worship Sarah de Silva and were dismissed in

November, 2020. The State filed an appeal on November 3, 2020. That appeal is now

pending before the Court of Appeal.

18. Dominic Suraj filed his Originating Motion on August 15, 2020, together with Marlon

Hinds, Christopher Wilson, Bruce Bowen and, Collin Ramjohn. They applied for these items

of relief:

“1. A declaration that the Public Health [2019] Novel Coronvirus (2019

Regulations, 2020 (“the Regulations”) made pursuant to the Public Health

Ordinance are unconstitutional null and void and of no effect.

2. A declaration that the arresting charging and prosecution of the Claimants for a

breach of Regulation 3(1) (b) of the Regulations on April 14, 2020 was unlawful

and in breach of the Claimant’s constitutional rights.

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The Claimants also applied for damages and costs.

Satyanand Maharaj

19. Satyanand Maharaj, the Appellant in the second appeal, is a practicing pundit. He is the

spiritual leader of the Satyanand Ashram of No. 9 Chootoo Trace, Aranguez. Prior to the

onset of the Covid-19 Pandemic, Pundit Maharaj conducted religious services every

Thursday at his Ashram. He also offered classes in classical dance, music and Hindi.

20. Pundit Maharaj initially instituted his claim by seeking leave to apply for judicial review

pursuant to Part 56.3 CPR. That application which was filed on August 5, 2020, was

subsequently withdrawn on August 14, 2020. Upon granting permission to Pundit Maharaj

to withdraw his application for leave to apply for Judicial Review, the Judge also ordered

that Mr. Maharaj be at liberty to pursue his constitutional claim. The order of the Judge noted

that the Defendant reserved all rights and made no admissions in respect of the merits of the

constitutional claim.

21. By his claim, Pundit Maharaj took issue with the Guidelines for Places of Worship. He

recounted that, following the onset of the pandemic, regulations were promulgated under the

hand of the Minister of Health. At first, these had no effect whatsoever on religious services

or religious gatherings until March 22, 2020 when religious gatherings were restricted to 10

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persons. To exceed that number would be to commit an offence which would attract criminal

sanction.

22. It was, however, in the amendment of June 10, 2020, that the Regulations first made

reference to the Guidelines. Pundit Maharaj was aggrieved by the substance of the

Guidelines. He stated that his Ashram lacked the capacity to afford each worshipper a space

of 36 square feet. He stated as well that the Guidelines did not cater for the intricacies of

Hinduism, which required him to perform pujas at specific times and places and that he could

not shorten his worship time, as required by the guidelines, to 45 minutes.

23. Pundit Maharaj took greater issue with the procedural aspects of the Guidelines. They were

not part of the Regulations and had not been published in the Gazette. They appeared on

the website of the Ministry of Health and were removed whenever an updated version was

published. They were prepared by unknown public servants and not by Parliament. It was

the essence of Pundit Maharaj’s case that sub-regulations 2(2) and (3) of the Regulations

(No. 23), were in breach of his fundamental rights, in so far as they criminalised non-

compliance with the Guidelines.

24. In answer, the Minister of Health, by his affidavit filed on August 18, 2020 reiterated the

seriousness of the pandemic, its danger to lives and its capacity to overwhelm the health

system with the potential to render it inaccessible to persons with other life-threatening

conditions.

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25. The testimony of the Minister of Health was supported by that of the Chief Medical Officer

(‘the CMO’), Dr. Rosham Parasram. Dr. Parasram identified the channels by which Covid-

19 could be spread, including the coughs of infected persons and contact with objects and

surfaces where infected droplets have landed. Dr. Parasram underscored the danger to older

persons and to persons with pre-existing medical conditions.6

26. He outlined the recognised measures for curbing the spread of the virus which required

minimising the movement and the gathering of people.7

27. Dr. Parasram stated that in August, 2020 he advised the Pan American Health Organisation

(PAHO) that Trinidad and Tobago was experiencing community spread. Gatherings at bars,

religious organisations and places of worship presented the highest risk of the spread of

Covid-19.

28. Dr. Parasram stated that he had consistently recommended the restriction of gatherings and

had advised on the Guidelines for places of worship, which were promulgated on June 22,

2020. He referred to his consultation with different religious bodies and stated that he,

personally, consulted the Dharmacharya of the Sanatan Dharma Maha Sabha for consultation

with the Hindu community.

6 See paragraph 7 of the Affidavit of Dr. Parasram 7 See paragraph 12 of the Affidavit of Dr. Parasram

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The Judgment of the Trial Judge

29. The Judge disposed of both claims in one judgment. He certified issues in respect of each

claim. In respect of Dominic Suraj, the Judge identified these issues:

“–whether the Regulations under which the Claimants were charged breach the

fundamental rights provisions of the Constitution;

-whether the matters addressed in the Regulations were required to be approved

by Parliament and in what manner

-Following from (i) and (ii) and considering any relevant issues of (sic) if they are

reasonably justifiable or proportionate, whether the regulations are

unconstitutional, void and of no effect.”8

30. In respect of Suraj, the Judge was careful to observe that it did not fall to him to examine or

to comment upon the defences raised by Suraj and his co-claimants.

31. He made extensive reference to the provisions of the Constitution, the Public Health

Ordinance, the Regulations and set out the explanatory case law.

32. The Judge acknowledged that there was academic and judicial criticism of the saving clause,

but held that the PHO was saved and therefore constitutional. Regulations made thereunder

were also immune from constitutional challenge.

8 See paragraph 9 of the Judgment

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33. At paragraph 92 of his Judgment, the Judge concluded thus:

“…even though the Regulations impact on rights and freedoms they are

constitutional once they fall within the remit of the enabling power”.9

34. In respect of Satyanand Maharaj, the Judge identified these issues:

“- Whether Regulations 2(2) and 2(3) of the Public Health [2019 Novel

Coronavirus 2019-nCov] (No.23) Regulations of 2020 are unconstitutional, illegal,

null and void and of no legal effect.

- Whether Regulations 2(2) and 2(3) of the Public Health [2019 Novel Coronavirus

2019-nCov] (No.23) Regulations of 2020 have breached the claimant’s

constitutional rights under section 4 (a), (b) and (h) of the Constitution.

- Any consequential matters arising therefrom, except damages.”

35. He referred extensively to the Guidelines and, recognising that we are a religious society,

the Judge observed that the Guidelines promoted social distancing while allowing for

gathering to take place in a limited way.10

9 See paragraph 92 of the judgment. 10 See paragraph 112 of the Judgment

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36. The Judge identified the critical issue to be whether a penalty can be imposed in respect of

a breach of the Guidelines.11 He held that, in so far as the guidelines had not been

incorporated into the Regulations they could not impose criminal penalties.12

37. At paragraph 118, the Judge held that making the breach of the Guidelines a criminal offence

was outside of the ambit of the power given to the Minister under the Ordinance and in

particular section 105.

38. Ultimately, the Judge declared that the Regulations (No. 23) were unlawful to the extent

only that they make a breach of the Guidelines a criminal offence.13 However, the Judge

withheld declarations as to unconstitutionality.

Law

The Public Health Ordinance (“the Ordinance”)

39. The salient provisions are:

Section 105:

“105. (1) The Board shall have the direction of all measures dealing with

dangerous infectious diseases, and may make regulations with regard to the control

of any dangerous infectious disease for all or any of the following purposes:

11 See paragraph 113 of the Judgment 12 Ibid 13 See paragraph 131 of the judgment

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(a) the restraint, segregation, and isolation of persons suffering from any

dangerous infectious disease, or likely from exposure to infection to suffer from any

such disease;

(b) the removal to hospital and the curative treatment of persons suffering from any

dangerous infectious disease;

(c) the removal, disinfection, and destruction of personal effects, goods, houses,

and other property exposed to infection from any dangerous infectious disease;

(d) the speedy burial or cremation of the dead, and in such last mentioned case the

provision of crematoria;

(e) house to house visitation and inspection;

(f) the provision of medical aid and accommodation;

(g) the promotion of cleanliness, ventilation, and disinfection;

(h) the prevention of the spread of dangerous infectious diseases as well on the seas

and rivers and waters of the Colony, and on the high seas within three miles of the

coast thereof, as on land;

(i) the doing of any such matter or thing as may appear advisable for preventing or

checking such diseases:

Provided that with respect to any hospital or asylum, or to any institution for the relief

of the sick and destitute poor under the control of the Government, or to any patient

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therein, the powers given by this section shall not be exercisable by the Board, but

such powers shall be exercised by the Governor in Council:

Provided further, that in the event of immediate action becoming, in the opinion of the

Governor, necessary to deal with, any dangerous infectious disease under the

provisions of this section or of any regulations made thereunder, and of its not being

practicable, in the opinion of the Governor to have a meeting of the Board forthwith,

the Governor may, pending the holding of such a meeting, take all such measures, do

all such things, exercise all such powers, and enjoy all such privileges and immunities

as might be taken, done, exercised or enjoyed by the Board, and all such measures and

things and the exercise of such powers shall be as effectual, valid, and protected in all

respects as if they had been taken, done, or exercised by or under the authority of the

Board.

(2) The provisions of sections 132 and 133 shall apply to all regulations made under

this section.

(3) There may be attached to any breach of any regulation made under this section, a

fine not exceeding four hundred and eighty dollars, or a term of imprisonment, with or

without hard labour, not exceeding six months”14

14 The maximum fine was increased in 2020 from $400.00 to $50,000.000 to $200,000.00

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Section 132:

“132. All regulations made under this Part of this Ordinance shall be published in the

Royal Gazette, and when so published shall thenceforth have the same effect and

operation as if they were enacted by and formed part of this Ordinance.”

Section 133

“133. For the purposes of this Part of this Ordinance, any person authorised to act

under the provisions hereof or of any regulations made in pursuance of any authority

contained in this Part of this Ordinance may at any time, with or without assistance—

(a) enter on lands and buildings and inspect and examine the same and all things

thereon or therein;

(b) do on any land or in any building any sanitary or other work authorised or

directed;

(c) generally do, with respect to persons, places, land, buildings, animals, or things,

whatever is necessary or expedient in order to carry out the foregoing provisions of

this Part of this Ordinance or any direction or requirement given or arising

thereunder.”

Section 88 A (Sixth Schedule) of the WASA Act 1965 amended the PHO, so that references

to the Board are replaced by the Minister of Health. The Public Health Ordinance was

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amended on two occasions in 2020, that is by Acts 4 and 23 of 2020. Both amendments

increased the maximum fine which could be imposed under the Regulations.15

The Public Health [2019 Novel Coronavirus Regulations [2019-nCoV] 2020]

The Public Health [2019 Novel Coronavirus (2019-nCoV)] (No. 09) Regulations, 2020 (For the

Suraj matter)

3. (1) During the period specified in regulation 9, a person shall not without

reasonable justification–

(b) be found at any public place where–

(i) the number of persons gathered at any time exceed five; and

(ii) the gathering is not associated with a service specified in subregulation (2);

The Public Health [2019 Novel Coronavirus (2019-nCoV)] (No. 23) Regulations, 2020

2 (1) During the period specified in regulation 16, a person shall not without


(a) be found at any public place where the number of persons gathered at any

time exceeds ten;

15 See the Public Health (Amendment) Act No. 4 and 23 of 2020

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(2) The limit of persons at–

(a) religious or ecclesiastical services or any other religious gatherings

including funerals, weddings and christenings, may exceed the number set out

in subsection (1), provided that they comply with the Guidelines for Places of

Worship issued by the Ministry of Health; and

(b) other public places may exceed the number set out in subsection (1), in

accordance with guidelines made by the Chief Medical Officer for a specific

purpose in respect of the 2019 Novel Coronavirus (2019-nCoV).

(3) A person who contravenes this regulation commits an offence and is liable on

summary conviction to a fine of fifty thousand dollars and imprisonment for a term of

six months.”

The Guidelines

40. The Guidelines had been published on the website of the Ministry of Health. The Guidelines

which were in force, when the claim of Pundit Maharaj had been filed are no longer

available.

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Issues

41. The overarching issue in both appeals is whether the Regulations, in their many

incarnations, are unconstitutional.

42. The resolution of this main issue depends on more narrowly framed issues, beginning with

the application of the saving law clause and whether, on a proper interpretation, the saving

law clause is only a transitional provision.

43. Additionally, the issue arose as to whether the Regulations, though intra vires the Public

Health Ordinance as the enabling statute, were unconstitutional in that they contravened

fundamental rights guaranteed under section 4 of the Constitution and whether they ought

to have been approved by Parliament, in the way in which the State of Emergency

Regulations are approved.

44. A subsidiary issue arose as to whether the test of proportionality was a hurdle to be

surmounted in determining whether a law was in breach of the fundamental rights provisions

of the Constitution. This involved consideration of the decision of the Court of Appeal in

Barry Francis v. the State.16

16 (2014) Francis 86 WIR 418

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45. Yet another subsidiary issue was whether the Regulations, even if protected by the saving

law provision, were unconstitutional in that they offended the principles implicit in the deep

structure of the Constitution.

The Appeal of Pundit Maharaj

46. In respect of the appeal by Pundit Maharaj, the issue of constitutionality of the Regulations

arose once more.

47. The question arose as to whether the Judge was correct to find that the Regulations (No 23)

were unlawful, for having imposed a criminal sanction for non-compliance with the

Guidelines and whether he should have proceeded to make declarations of

unconstitutionality.

Submissions

48. Both Senior Counsel, Mr. Ramlogan for the Appellants and Mr. Armour for the

Respondent, presented written and oral submissions.

49. Their erudite and extensive submissions will be referred to in the course of the discussion

of each issue. In summary, Mr. Ramlogan painted a picture, based on Sacred Scriptures, of

many roads leading to one mountainous summit. In many ways, Senior Counsel’s

submissions mirrored this metaphor, in that each of his submissions led to one destination,

which was an attack on the constitutionality of the Regulations.

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50. Mr. Armour, in his turn, carefully addressed each issue, pointing out where arguments had

not been pleaded and arguing that the Judge had not fallen out of the ambit of reasonable

conclusions.

Discussion

The Principle of Appellate Deference

51. An Appellate Court will not lightly overturn the decision of a first instance Judge. This will

be done only where the Judge wrongly directed himself on fact or law or where the decision

exceeds the generous ambit within which reasonable disagreement is possible and is plainly

wrong.17

The Saving Law Clause

52. Section 6 of the Republican Constitution protects existing law in these terms:

“EXCEPTIONS FOR EXISTING LAW

6. (1) Nothing in sections 4 and 5 shall invalidate—

(a) an existing law;

(b) an enactment that repeals and re-enacts an existing law without alteration;

or

17 See Civ App 143 of 2006 Police Service Commission v. Graham per Mendonça, JA

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(c) an enactment that alters an existing law but does not derogate from any

fundamental right guaranteed by this Chapter in a manner in which

or to an extent to which the existing law did not previously derogate from that

right.

(2) Where an enactment repeals and re-enacts with modifications an existing law

and is held to derogate from any fundamental right guaranteed by this Chapter in a

manner in which or to an extent to which the existing law did not previously

derogate from that right then, subject to sections 13 and 54, the provisions of the

existing law shall be substituted for such of the provisions of the enactment as are

held to derogate from the fundamental right in a manner in which or to an extent to

which the existing law did not previously derogate from that right.

(3) In this section—

“alters” in relation to an existing law, includes repealing that law

and re-enacting it with modifications or making different

provisions in place of it or modifying it;

“existing law” means a law that had effect as part of the law of

Trinidad and Tobago immediately before the

commencement of this Constitution, and includes any

enactment referred to in subsection (1);

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“right” includes freedom.”

53. The saving law clause at section 6, whose predecessor had been section 3 of the Independence

Constitution, has been the subject of the scrutiny of the Privy Council on many occasions.

Significantly their Lordships evaluated the status of the saving law clause in two death penalty

cases: Roodal v. The State of Trinidad and Tobago18 and shortly thereafter in Matthew v.

The State of Trinidad and Tobago19.

54. In Roodal, the Judicial Committee heard a challenge to the mandatory death sentence

prescribed at section 4 of the Offences Against the Persons Act20. A majority of their

Lordships held that section 421 violated the prohibition against cruel and unusual punishment

as enshrined at section 5 (2) (b) of the Constitution. They held further that the prescribed

mandatory death sentence could be modified so as to provide for a maximum penalty, instead

of a fixed penalty of death.

55. Roodal was swiftly followed by Matthew v the State of Trinidad and Tobago22, which also

concerned the question of whether section 4 of the Offences Against the Person Act was

protected by section 6 (1) of the Constitution.

18 [2005] 1 AC 328 19 Mathew v. The State of Trinidad and Tobago [2005] 1 AC 433 20 4. Every person convicted of murder shall suffer death. 21 Ibid 22 [2004] UKPC 33

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56. Matthew was heard by a panel of (9) Law Lords. The enlarged Board was constituted for the

purpose of deciding whether Roodal should be followed not only in Trinidad and Tobago23

but also in other Caribbean states which have similar constitutions and a right of appeal to the

Privy Council.

57. A majority of their Lordships in Matthew reversed the ruling in Roodal. At paragraph 3 of the

majority decision, Lord Hoffman expressed the view that section 6 (1) was not a mere

transitional provision, but that: “It stands there protecting the validity of existing laws, until

such time as Parliament decides to change them.”24 Then, at paragraph 20 of his judgment,

Lord Hoffman re-affirmed the validity of the savings law clause in these terms:

“If the Constitution itself shows a plain intention to preserve existing laws, their

Lordships find it impossible to accept that Parliament by enacting section 5(1) of

the 1976 Act can have created a mechanism outside of the Constitution for

undermining the effect of its provision.”

58. This Court is bound, by the doctrine of stare decisis, to abide by the ruling in Matthew.

59. We recognize that there has been extensive judicial and academic criticism of the savings law

clause. The most authoritative of these, may be found in the minority dissenting judgment in

Matthew, where Lord Bingham of Cornhill set out authorities dating back to Edward v AG of

23 See the decision of Lord Hoffman paragraph 29, Matthew v. AG 24 See Matthew v Attorney General (Ibid) at page 433 , paragraph 3 per Lord Hoffman

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Canada 25 in 1930, in support of the “large and liberal interpretation” of the Constitution,

and the need to apply a generous interpretation to right-conferring provisions, while applying

a restrictive interpretation to a provision such as the saving law clause, which detracted from

fundamental rights.

60. Following Matthew, learned Judges of the Caribbean Court of Justice considered the reach

and content of the Barbadian savings provision in Jabari Sensimania Nervais v R. 26 Like

Matthew and Roodal, Nervais focused in particular on the constitutionality of the mandatory

death penalty for a conviction of murder.

61. Sir Dennis Byron, PCCJ, writing on behalf of the majority of the panel explored the history

of commentaries on the saving law clause. Sir Dennis referred to judicial pronouncements as

to the rationale for the saving law clause. On the one hand, Lord Devlin in DPP v. Nasralla27

held the view that existing laws already embodied the most perfect statement of fundamental

rights.28 More recently, Lord Hope, in Watson v. The Queen (the Attorney General of

Jamaica intervening)29 saw the saving law clause as a device in the interest of legal certainty

to ensure an orderly transfer of legislative authority.30

25 [1930] AC 124 26 CCJ APPEAL NOS. BBCR 2017/002 27 [1957] 2 AC 238 28 See Nervais at paragraph 52 of the judgment of Sir Dennis 29 [2004] UKPC 34 30 See Nervais paragraph 52 of the judgment of Sir Dennis

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62. Sir Dennis cited academic criticisms of the saving law clause emanating from Dr. Francis

Alexis in 197631 to Professor Mc Intosh in 2002 32 and condemned the effect of the saving law

clause in these terms:

“The general savings clause is an unacceptable diminution of the freedom of newly

independent peoples who fought for that freedom with unshakable faith in fundamental human

rights...”33

63. Sir Dennis alluded to the solution of modification by way of section 4(1) of the Independence

Order of Barbados.34 In this way, an existing law is brought in into conformity with the

Constitution by modification and adoption (see Sir Dennis paragraph 63). At paragraph 68,

Sir Dennis identified what he considered to be the correct approach to the saving law clause,

in these words:

“We are satisfied that the correct approach to interpreting the general savings

clause is to give it a restrictive interpretation which would give the individual full

measure of the fundamental rights and freedoms enshrined in the Constitution.”

64. This Court is not however bound by Nervais and the evolving debate must eventually be

resolved elsewhere. We remain bound by the decision in Matthew. The Public Health

31 Dr. Alexis “when is an existing law saved” cited by Sir Dennis at paragraph 53 32 Professor Mc Intosh, Caribbean Constitutional Reform: Rethinking the West Indian Policy Paragraph 58. 33 Nervais per Byron PCCJ at para [58] 34 Equivalent to section 5(1) of the Constitution Act of Trinidad and Tobago

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Ordinance is an existing law. Notwithstanding the wide powers conferred by section 105, to

restrict and to encroach on fundamental rights, the PHO is guarded from declarations of

unconstitutionality by the saving law provision. It continues to be valid until removed by the

will of the people in Parliament.

The Deep Structure

65. We proceed to consider the alternative argument, that is to say that the saving law clause

provided protection only to laws which were inconsistent with sections 4 and 5 of the

Constitution and that consequentially, laws which were inconsistent with other parts of the

Constitution, did not enjoy the protection of the saving law provision.

66. The Privy Council addressed this question in Johnson and Balwant v. AG35. Johnson and

Balwant were women police officers. They challenged the Police Service Regulations which

permitted the termination of the employment of married police women on the ground that their

family obligations were affecting the efficient performance of their duties.

67. Lord Rodger on behalf of the Board indicated that their Lordships had no doubt that the

relevant regulations were discriminatory.36 Nonetheless, applying the decision in Matthew

35 Josine Johnson and Yuclan Balwant v. Attorney General [2009] UKPC 53 36 Ibid. at Paragraph 8 of the Judgment of Lord Roger

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and section 18 of the Constitution Act 197637, their Lordships held that the Regulations were

protected as existing law and were thus constitutional.

68. In the course of his judgment, Lord Rodger said:

“Section 6(1) of the Constitution applies only to sections 4 and 5 of the

Constitution. An existing law is not to be invalidated by anything in those sections.

But, if an existing law were inconsistent with some other provision of the

Constitution, then by virtue of section 2 of the Constitution it would be void to the

extent of inconsistency”38

69. According to the Appellant’s contention, laws which were otherwise saved from invalidation

by reason of their inconsistency with sections 4 and 5 of the Constitution, might nonetheless

offend core constitutional values. Such core values were proclaimed at section 2 of the

Constitution and formed what Jamadar JCCJ, in Belize International Services Ltd v.

Attorney General39, alluded to as the deep structure of democratic participatory

constitutionalism in Caribbean states.40

37 18. (1) Every person who under this Constitution or any Act of Parliament is a citizen of Trinidad and Tobago or, under any law for the time being in force in any country to which this section applies, is a citizen of that country shall, by virtue of that citizenship, have the status of a Commonwealth citizen. 38 See Johnson and Balwant v. Attorney General [2209] UKPC 53 39 Belize International Services Ltd v Attorney General of Belize CCJ Civil Appeal No. B CV 2019/003 40 See paragraph [299]

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70. According to Jamadar JCCJ, the Constitution of Belize was built on principles and values that

have evolved out of the history, culture, traditions and experiences of Belizeans.41 The

principles and values are unwritten, and, until legitimately changed, they are non-negotiable.

Jamadar JCCJ found three of these unwritten features to be uncontroversial: the separation of

powers, the rule of law and the independence of the judiciary.42

71. The concept of unwritten constitutional values, not expressed, but discernible in the structure

of the Constitution was central to the decision of Lord Diplock in Hinds v. R43, where Lord

Diplock found the doctrine of separation of powers to be implicit in the Constitution of

Jamaica. More recently the importance of the structure of the Constitution was underscored

in Ahnee v. DPP and Khoyratty v. The State of Mauritius 44. There is a however, significant

distinction between Ahnee and Khoyratty and the present case, in that those authorities were

not considering saved provisions.

72. While we accept that the doctrine of separation of powers is a core principle and forms part

of the deep structure of the Constitution, the attack on the Regulations, in these appeals, has

been trained on their inconsistency with section 4 and 5. This was so even where the arguments

of Mr. Ramlogan were presented under the heading of “the deep structure”. The language

41 Ibid paragraph [301] 42 Ibid at paragraph [304] 43 [1977] AC 195 at 225 G 44 Ahnee v DPP [1999] 2 LRC 676 and State of Mauritius v Khoyratty[2006] UKPC 13

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and essence of Senior Counsel’s submission continued to be based on the fundamental rights

provisions.

73. It should also be noted that the observations of Lord Rodger in Johnson v. Balwant45, quoted

at paragraph 68 above are not to be taken as applicable to any circumstance, in which the

validity of a provision is preserved by the saving clause. The ‘deep structure’ argument was

deployed and rejected in Matthew [the essential contention of the appellant being that the

imposition of the mandatory death penalty breached the separation of powers]. If the

Constitution itself makes express provision for the validation of any provision, there is no

“overriding supra-constitutional principle” that can be brought to bear to invalidate it. The

express provisions of a constitution must be assumed to be the way in which Parliament gives

practical expression to its underlying structure and principles. To suggest otherwise would be

to imply that a provision expressly deemed valid by the Constitution could be unconstitutional,

a patent absurdity.

74. This being so, these appeals continue to be governed by the principle expounded by Lord

Hoffman in Matthew, that the saving law provision “stands these protecting the validity of

existing law, until such time as Parliament decides to change the.”.46 John and Balwant, far

from derogating from Matthew, upheld and applied it.

45 Johnson and Balwant v. A.G. supra at paragraph 68 46 Matthew v. A.G. [2005] 1 A.C. page 433 the judgment of Lord Hoffman at para 3

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Separation of Powers

75. We considered, nonetheless whether the Regulations contravene the principle of separation

of powers. For that purpose, it becomes necessary to consider the meaning of separation of

powers in ‘Westminster Model’ constitutions such as ours.

76. The doctrine of separation of powers does not require watertight boundaries. Durga Das Basu,

in the 6th edition of Administrative Law,47 explained the modern significance of the doctrine

by asserting:

“In modern practice, the theory of separation of powers has come to mean an

organic separation or a separation of functions viz, that one organ of government

should not usurp or combine functions belonging to another organ.”

Basu noted however that any rigid separation in impracticable under modern conditions where

the problems of government are interdependent.

“Hence, a distinction is made between ‘essential’ and ‘incidental’ powers of an

organ of government. One organ cannot claim to exercise the powers essentially

belonging to another organ but may, without the violation of the principle of

separation of powers, exercise some of the incidental powers of another organ”48

47 Administrative law by Durga Das Basu and A.K. Nandi (6th 2004 ed) page 24 48 Ibid

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Basu opined that enforcement of a rigid conception of separation of powers would make

modern government impossible.49

77. In like vein, Robinson, Bulkan and Saunders, authors of Fundamentals of Caribbean

Constitutional law50 had this to say of the separation of powers:

“There is no strong separation between legislature and executive power in the

Anglophone Caribbean. 51

78. In respect of delegated legislation, they wrote:

“While the power to make laws is constitutionally vested in Parliament there can

be a voluntary distribution of powers. Flossiac CJ in Astaphan v Comptroller of

Customs recognised that the delegation or transfer of legislative power by the

legislature to the executive is not per se inconsistent with the principle of separation

of powers provided that the legislature retains effective control of its powers.”52

79. The Regulations, in these appeals, were made by the Minister of Health, as authorised under

section 105 of the PHO. As delegated legislation they were an instance of the voluntary

sharing of legislative power, which, has become a systemic feature of Caribbean

Constitutions53. Similar examples of legislative power sharing abound. They include

49 Durga Das Basu , Administrative Law (cited by Mr. Ramlogan for the Appellants) 50 Tracey Robinson, Arif Bulkan and Adrian Saunders, Fundamentals of Caribbean Constitutional Law 51 Ibid at paragraph 7 - 014 52 Ibid at paragraph 7 - 014 53 See Robinson, Bulkan and Saunders, Fundamentals of Caribbean Constitutional law

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regulations made under the Motor Vehicles and Road Traffic Act54; the Animal Disease and

Importation Act55; the Plant Protection Act56, and the Fisheries Act57.

80. The Regulations, here, have been under the control of the legislative arm of Government for

many decades. The PHO has been brought to Parliament on many occasions since 1976.58 It

is clear that there was nothing to prevent Parliament from pruning powers conferred on the

Minister of Health, at section 105. It was well within Parliament’s power to do so, more

particularly when they revisited and amended the Public Health Ordinance on two occasions

in 2020, by Acts 4 and 23 of 2020.

81. It is therefore our view that the Regulations do not infringe the separation of powers doctrine,

which affords Parliament the facility to share its legislative power, by providing for the

creation of subsidiary legislation. As attractive as this argument promised to have been, we

feel compelled to disagree with the Appellants on this ground and to affirm the decision of the

Trial Judge.

The Validity of the Regulations

82. The Appellants contend that, notwithstanding of the status of the PHO as an existing law, the

Regulations were nonetheless unconstitutional. The Respondents countered that subsidiary

54 Ch. 48:50 55 Ch. 67:02 56 Ch. 63:56 57 Ch. 67:51 58 See Appendix 3 of the Written Submissions for the Respondent

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legislation is valid as long as it falls within the ambit of the enabling or parent statute. The

Judge accepted the argument of the Respondent, that the Regulations were constitutional as

long as they fell within the remit of the enabling legislation.59

83. In the recent local authority of Permanent Secretary of Ministry of Social Development v.

Ruth Peters60, the Court of Appeal (TT) confirmed that the test of invalidity was compatibility

with the enabling statute61. In Peters, Mendonça JA, cited R (on the application of the Public

Law Project) v. Lord62 Chancellor where Lord Neuberger said:

“23. Subordinate legislation will be held by a court to be invalid if it has an effect

or is made for a purpose which is ultra vires, that is outside the scope of the

statutory power pursuant to which it was made”63

Lord Neuberger continued:

“Accordingly, when, as in his case, it is contended that subordinate legislation is

ultra vires, it is necessary for a court to determine the scope of the statutorily

conferred power to make that legislation”.

59 See the Judgment of the trial Judge at paragraph 92 60 Civil Appeal No.366/2019 61 Ibid 62 R (on the application of the Public Law Project) v. Lord Chancellor [2016] UKSC 39 63 Ibid. at para 23

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84. Alternatively, in the words of Sachs J in Commissioners of Customs and Excise v. Cure

and Deeley64:

“ A court is bound to consider, before reaching a decision on the question whether a

regulation is intra vires to examine the nature, objects and scheme of a piece of

legislation as a whole , (our emphasis)…” 65

85. Subsidiary legislation is also presumed to be valid and the burden to prove otherwise is carried

by those who impugn their validity. See R (Petsafe Ltd.) v. Welsh Ministers.66

86. Contemporary authorities suggest, however that the validity of subsidiary legislation was not

protected merely by being intra vires the enabling Act. The most authoritative of these was R

(on the Application of UNISON) v. Lord Chancellor.67 This was a decision of the UK

Supreme Court in respect of the Employment Appeal Tribunal Fees Order 2013, as made by

the Lord Chancellor, in the exercise of statutory powers. There was no issue of vires with the

enabling Act. The Order was nonetheless held to curtail the right to access to justice. At

paragraph 65, Lord Reid said:

“In determining the extent of the power conferred on the Lord Chancellor by …the

2007 Act the Court must consider not only the text of the provision, but also the

64 Commissioners of Customs and Excise v. Cure and Deeley [1962] 1 Q.B. 340 65 Ibid at 367 66 R (Petsafe Ltd) v. Welsh Ministers [2010] EWHC 2908, an authority relied upon by Mr. Armour for the A.G. 67 [2017] UKSC 51

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constitutional principles which underlie the text and the principles of statutory

interpretation which give effect to those principles.”

87. Ultimately, the Supreme Court found at paragraph 104 that the Fees Order had the effect of

rendering the right of access nugatory.

88. More recently, in R (Al Enein) v. Secretary of State for the Home Department68, the UK

Court of Appeal considered the validity of the policy, adopted by the Secretary of State for

Immigration pursuant to Schedule I of the British Nationality Act 1981. Singh L.J. expressed

the view that subsidiary legislation, otherwise intra vires, could be struck down if it conflicted

with statutory rights.

89. In the course of his judgment Singh L J referred to R v. Secretary of State ex p Joint Council

for the Welfare of Immigrants69 a decision also relied on by the Supreme Court in UNISON.

Singh L J summarized the view of Simon Brown LJ in the Welfare of Immigrants case in this

way:

“In R v. Secretary of State ex p Joint Council for the Welfare of Immigrants, it was

held that Regulations which had been made could be held to be unlawful if they

contravened the express or implied requirements of a statute.”70

68 [2020] 1 WLR 1349 69 [1997] 1 WLR 275 70 Regina (Al Enien ) v. Secretary of State for the Home Dept [2020] 1WLR 1349 at para 28

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90. Singh L J then quoted Waite L J in the Welfare of Immigrants Case:

“Subsidiary legislation must not only be within the vires of the enabling statute but

also be so drawn as not to conflict with statutory rights already enacted by other

primary legislation”.71

91. Singh LJ continued:

“ A fundamental point of principle is that subsidiary legislation will be ultra vires

if it seeks to cut down or negate rights already enacted by other primary

legislation…”72

92. In Trinidad and Tobago, two first instance decisions struck down regulations on account of

their conflict with fundamental rights. Garvin Sookram v. Conrad Barrow, Commissioner of

Prisons.73 was a decision of Gobin J and concerned the validity of Rule 296 (4) of the Prison

Rules, which stipulated that meetings between death row prisoners and their legal advisors

be conducted in the sight and hearing of prison officers. Justice Gobin applied State of

Mauritius v. Khoyratty74 and held that rule 296 (4) was inconsistent with the right to access

to justice, which was a right necessary for the vindication of all other rights and to that extent

the right of access was basic. Gobin J found Rule 296 (4) to be an existing law for the purpose

71 Ibid. and Welfare of Immigrants [1997] 1 WLR 275 at 293 72 Regina (Al Enien) v. Secretary of State for the Home Dept [2020] 1WLR 1349 at para 28 73 CV2014-2199 74 [2007] 1 AC 80

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of section 6 (1) of the Constitution, but declared it to be inconsistent with section 1 and

proceeded to modify the provision. There was no appeal against this decision.

93. In Sharon Roop v. A.G., Mohammed J (Mme) considered the constitutionality of the Police

Service Regulations 2007, in so far as it impliedly prohibited women police officers from

wearing the hijab.

94. Mohammed J (Mme) interpreted section 6 of the Constitution as applicable not only to Acts

of Parliament, but also to subsidiary legislation. By considering the date of publication of the

Police Service Regulations 2007, however, Mohammed J (Mme) held that they were not saved

as existing law. She found them to be unconstitutional, null, void and of no effect.

95. In Sharon Roop, as in Garvin Sookram, there was no consideration of the issue as to whether

delegated legislation is susceptible to being struck down independently of the enabling Act.

Accordingly, the issue with which we now grapple did not arise. Sharon Roop, as well as

Garvin Sookram, both admirably well written, are of limited assistance in this appeal.

96. Most recently and on point with the pandemic, was the judgment of the Privy Council in AG

of Turks and Caicos Islands v. Misick and Others.75 This was a unanimous judgment of the

Board, and concerned the lawfulness of subsidiary legislation relating to remote court sittings.

97. In the course of the joint judgment delivered by Lord Hamblen and Lord Stephens, their

Lordships underscored the need for the subsidiary legislation to be read in their context in the

75 [2020] UKPC 30

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widest sense.76 The Constitution was part of the legal context of the regulations and at

paragraph 39, their Lordships expressed this view:

“The legal context includes the Constitution and a Court would not lightly infer

that Regulation 4(6) is intended to override or displace basic tenets of the

Constitution”

98. At paragraph 40, their Lordships defined the principle of effectiveness in these words:

“Also of potential relevance is the principle of effectiveness i.e. where possible as

an enactment will be construed so that its provisions are given force and effect

rather than rendered nugatory-see Bennion at para 9.8”

Ultimately, at paragraph 61, their Lordships held that the Regulations were not ultra vires.

99. In these proceedings, the Judge did not consider the cases referred to above and was content

to hold, at paragraph 92, that as long as the Regulations fell within the ambit of the enabling

power they were constitutional.

100. It is clear however that there is no longer any incontrovertible rule that subsidiary legislation

is protected from challenge as long as they are within the vires of the enabling statute. Finding

therefore that the Judge fell into error in failing to consider the recent English and local

authorities, we proceeded to reflect upon the available authorities.

76 Ibid at paragraph 30

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101. There could be no doubt, as stated by the Trial Judge that the Regulations have had the effect

of curtailing aspects of fundamental rights and freedoms (see paragraph 80 of the Judgment).

There is also no doubt that the Regulations, in their restriction of fundamental rights and

freedoms fell well within the ambit of the enabling Ordinance. See paragraphs 81 to 92 of the

Judgment.

102. On the one hand, Mr. Armour maintained that the intra vires status of the Regulations led

inexorably to a presumption of their validity. On the other hand, Mr. Ramlogan invited the

Court to adopt the opposite automatic conclusion, that is to say that the Regulations find no

protection in their parent statute and should be struck down, if offensive to the fundamental

rights and freedoms.

103. We reject both automatic conclusions. In Attorney General of Turks and Caicos v. Misick

their Lordships underscored the importance of the legal context of the regulations under their

scrutiny.

104. This Court considered the context of the Regulations, embedded as they are and springing

from their enabling statute, the PHO.

105. The PHO, as noted by the Judge, invests power in the Minister of Health, to make quick and

far-reaching regulations. They are designed to provide speedy and effective protection to the

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population, to compel compliance where the stakes are high and when the survival of the

organism of society is threatened by the public health dangers.77

106. The regulation-making power at section 105 of the PHO has survived the scrutiny of

Parliament on the many occasions when this Ordinance was considered and amended by

Parliament. Accordingly, the PHO is not a statute which has reclined dormant for decades and

which simply hides behind the saving law provision. This a statute to which Parliament has

been alive and which nonetheless has withstood the test of time. In the context of an enabling

statute, which itself confers extensive powers for the preservation of the public survival, it

seems that the Court should be slow to strike down subordinate legislation, as long as it has

not strayed from the shelter of the parent statute.

107. Moreover, the authorities culminating with UNISON, must themselves be examined in

context. In each of those cases, the subsidiary legislation offended the basic constitutional

principles as in Khoyratty. In UNISON the impugned Order of the Lord Chancellor

compromised the right of workers to access to justice, a basic right, on which all other rights

depended for their vindication.78

108. In these proceedings, the Regulations do not affect the basic constitutional tenets of access to

justice or separation of powers. In this way, we find these proceedings distinguishable from

77 See Rehman [2003] 1 A.C. 153 post script by Lord Hoffman at paragraph 62 78 See Gobin J in Garvin Sookram v. A.G.

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the UNISON type cases. We hold that the Regulations, being intra vires their enabling statute,

and not affecting basic constitutional rights or principles, are not susceptible to being struck

down.

Section 13

109. Mr. Ramlogan asserted that it would be odd that an Act of Parliament should be subjected to

the rigours of section 1379, while delegated legislation was not subjected to similar stringent

requirements.80

110. Section 13 of the Constitution provides:

“13. (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.

79 Section 13 of the Constitution 80 Transcript for December 15, 2020 page 37

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(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).”

111. This section is an entrenching provision. It provides for the validity of Acts of Parliament,

which are inconsistent with the fundamental rights provisions at section 4 and 5.

112. Together with its Commonwealth counterparts, section 13 has received judicial scrutiny over

the years and by courts at all levels. For many years, section 13 and similar sections have been

interpreted literally. An Act of Parliament was seen as inconsistent with the Constitution if

the plain meaning of the words suggested inconsistency. See Lassalle v Attorney General

(1971) 18 W.I.R. 379, TICFA v Attorney General (1975) 27 W.I.R. 329, Thompson v.

Forrest and Another (1967) 11 W.I.R. 296:

113. In Hinds v. Attorney General of Jamaica,81 Lord Diplock explained the philosophy which

underlay the entrenched provisions in these words :

“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

81 Hinds v.DPP (1975) 24 WIR 326 ; [1977] A.C.195

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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,…...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.”82

82 Hinds v. DPP (1975) 24 WIR 326 at 333 ; [1977] A.C.195 at 214

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114. This perspective was altered with the decision of the Privy Council in Suratt and Others v.

Attorney General83 which introduced the test of proportionality, as part of the assessment of

inconsistency.

115. Most recently, in Trinidad and Tobago, the developments in Suratt were considered by a full

panel of the Court of Appeal , in Barry Francis v. Attorney General,84

116. In Barry Francis, the appellants had been convicted under the Dangerous Drugs Act Chapter

11:25 (the Act) and sentenced to 25 years imprisonment. On appeal, the question arose as to

the constitutional validity of the Act in so far as it prescribed the imposition of mandatory

sentence.

117. The Act had been passed with a three-fifth majority in both Houses of Parliament and

expressly declared that it would have effect although inconsistent with the fundamental rights

provisions, in accordance with s. 13 of the Constitution. The central question addressed by

the Court of Appeal was whether the Act was reasonably ‘justifiable in a society that had

proper respect for the rights and freedoms of the individual.’85 Inherent in that question was

whether the sections were in fact inconsistent with section 4 and 5 of the Constitution.

118. The Court of Appeal was divided as to the correct test to be applied. The majority judgment

written by Bereaux JA agreed with the reasoning in Suratt and identified proportionality as

83 Suratt and Others v. Attorney General (2007) 71 W.I.R.391. 84 Barry Francis v. Attorney General (2014) 86 WIR 418 85 See Francis v the State at paragraph 157

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one test which may be applied in determining whether an Act of Parliament is inconsistent

with the Constitution.

119. At paragraph 207, Justice of Appeal Bereaux set out the two-step approach in deciding

whether an Act of Parliament was inconsistent with the Constitution. Bereaux J A outlined

the two-step approach in these words :

“(1) Does the policy of the legislation pursue a legitimate object

(2) Does the limitation or restriction of the constitutional right bear a reasonable

or rational relation to the object of the legislation.”86

120. The joint minority judgment , delivered by Chief Justice Archie and Jamadar JA (as he then

was ), set out the history of thinking section 13 of the Constitution in vintage cases such as

DPP v. Nasralla87 and Hinds v. DPP88and demonstrated that early thinking on section 13

required a simple analysis of inconsistency.

121. The minority then cited Suratt89 and Public Service Appeal Board v. Omar Maraj90, where

for the first time, statutory inconsistency with the constitution was assessed by considering its

proportionality and the presence of legitimate aims. Chief Justice Archie and Jamadar JA

preferred the pre-Suratt thinking. It was their view that a proportionality test was neither

86 Ibid at para [207] 87 Privy Council Appeal No. 36 of 1965 88 Moses Hinds v. R [1977] AC 195 89 Suratt v. Attorney General (2007) 71 WIR 391 90 [2010] UKPC 29

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appropriate nor constitutionally legitimate. They held that the proportionality test required a

reading into the Constitution of a ‘reasonably required’ general limitation on fundamental

rights, where such limitation was deliberately left out. They observed that the “presumption

of constitutionality” adopted by the Privy Council was more consistent with the notion of

Parliamentary supremacy which Trinidad and Tobago had long abandoned in favor of

“constitutional supremacy” in both its written constitutions.

122. They were of the view that the trigger for the implementation of s.13 was any non-trivial

inconsistency with the Constitution. Proportionality was a useful tool in assessing whether an

Act, otherwise inconsistent with the Constitution, was reasonably justifiable in a society that

had proper respect for the rights and freedoms of the individual.

123. We are inclined to adopt the minority view. Reading into the Constitution, material that had

not been placed there by the legislature is both wrong in principle and dangerous. It will result

in empowering the legislature to whittle away fundamental rights, by asserting that there were

legitimate aims that evade precise definition. We are nonetheless bound by the decision in

Suratt.

124. Moreover, the correctness of the test does not arise in this appeal. In this matter, the Judge

declined the opportunity to decide whether the proportionality test was correct. We are of the

view that he was on good ground so to hold. The issue is not even remotely relevant to this

appeal. Section 13, by its clear terms provides an avenue by which Acts of Parliament may

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restrict fundamental rights. The Regulations are not Acts of Parliament and are not governed

by section 13. We find it doubtful that, in general, Regulations are governed by s.13 and are

required to be passed with a 3/5th majority, if inconsistent with fundamental rights. We

therefore agree with the finding of the Judge in this regard.

Emergency Powers

125. Mr. Ramlogan deprecated the Regulations and argued that the mere idea that one member of

the Executive could make regulations inconsistent with fundamental rights is inconsistent with

the Supremacy of the Constitution.

126. Senior Counsel contrasted the Regulations with the emergency powers at section 8 to 10 of

the Constitution.

127. The Constitution provides three instances, where laws may survive inconsistency with the

Constitution. These were identified in the minority judgment in Francis v the State as being

existing laws under s. 6 , those passed with a special majority under s.13 and legislation made

pursuant to s. 7(3) during a State of Emergency. 91

128. The Emergency Provisions allow the President, the Head of the Executive to declare that a

state of public emergency has arisen, where any one of the listed circumstances exist. These

include the imminence of a state of war between Trinidad and Tobago and a foreign state92,

91 See Barry Francis v. the State. ibid. at para [54] 92 See Section 8(1) of the Constitution

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the occurrence of any earthquake, flood or outbreak of pestilence or infectious disease.93

Sections 9 and 10 the Constitution provide for Parliamentary supervision of the Proclamation

and of any extension.

129. Mr. Ramlogan argued that, with the advent of the 1976 Constitution, the Parliament of

Trinidad and Tobago must have been aware of the provisions of the PHO. Mr. Ramlogan

stopped short of suggesting that there was an implied repeal. In our judgment, he was correct

to do so, since the PHO and the emergency provisions of the Constitution, though similar in

content, address different situations.

130. Section 103 of the PHO empowers the President to declare any disease to be an infectious

disease.94 The proclamation of the President under section 103, triggers the provisions of Part

XIV, which provide for infectious diseases.

131. The emergency powers provisions of the Constitution also authorize the President to make a

proclamation. In the context of Section 8 of the Constitution, the President proclaims that

there is a public emergency. It is clear, in the absence of any compelling reason to depart from

the literal rule of statutory interpretation, that the circumstances contemplated of section 103

of the PHO are different from those of section 8 of the Constitution.

93 Section (1) (b) of the Constitution 94 103. The Governor may, by proclamation, declare any disease (in addition to the diseases specifically mentioned in section 2 of this Ordinance) to be an infectious disease or a dangerous infectious disease within the meaning of this Ordinance, and so long as the proclamation remains unrevoked the disease specified therein shall be deemed to be an infectious disease or a dangerous infectious disease, as the case may be.

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132. It is equally clear that section 8 of the Constitution contemplates circumstances that do not

only affect the entire public, but which have the magnitude and gravity of an emergency.

133. The President, in both situations, is the office holder, invested with the power to make the

Proclamation. Not only are the words of Lord Hoffman in Rehman apposite,95 but the

discretion, in respect of the power, which ought to be exercised, is one which falls to the Head

of State and not to this Court.

134. While it may have been permissible for the President to have adopted an alternate route for

achieving the same objective, it is very much an executive decision whether the circumstances

were sufficiently grave to justify the declaration of a State of Emergency. If we were to attempt

to second guess that decision, we would be trespassing beyond the boundaries of separation

between the judicial and executive branches.

135. Accordingly, we endorse the decision of the Judge, who expressed the view, at paragraph 99

and 100 of his judgement that the law allowed “two bites of the cherry….”. We agree that the

95 Secretary of State for the Home Department Ex parte Rehman [2003] 1 AC 153: per Lord Hoffman

“62. I wrote this speech some three months before the recent events in New York and Washington. They are a

reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need

for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether

support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the

executive has access to special information and expertise in these matters. It is also that such decisions, with

serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to

persons responsible to the community through the democratic process. If the people are to accept the

consequences of such decisions, they must be made by persons whom the people have elected and whom they can

remove.”

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two powers are distinct, the emergency powers under the Constitution having been designed

to meet graver and wider national misadventures, than those contemplated by the PHO.

136. We therefore find no fault with the decision of the Judge on the issue of the Emergency Powers

provisions and this aspect of the appeal is also dismissed.

Satyanand Maharaj

137. We turn now to examine the appeal by Pundit Maharaj and the cross-appeal by the Attorney-

General. The Judge, held that criminalising of conduct by reference to the Guidelines was

unsustainable.96 Having so held, the Judge declared Regulations (No. 23) to be unlawful to

the extent only that they make a breach of the Guidelines a criminal offence.

138. The Judge’s decision was challenged by the Appellant, who argued that the Regulations (No.

23) were unconstitutional for reasons advanced in the Suraj appeal. Additionally, this

appellant contended that the Judge, having found the Regulations partly unlawful, ought to

have made a declaration of unconstitutionality. The Respondent, on the other hand, contended

by way of counter-notice of appeal that the declaration of unlawfulness was wrong.

139. It is convenient to begin by addressing the counter-appeal. The Respondent argued at the

outset that the decision of the Judge was extraneous to the pleaded case and to the issues which

were defined by the Court. It is clear from an examination of the submissions before the Judge,

96 See paragraph 120 of the Judgment

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that the legality of the Guidelines and their impact on the fundamental rights of the Appellant

were live issues. We accordingly reject this ground of the counter-appeal.

140. We turn therefore to consider whether the Regulations (No.23) in effect criminalise breaches

of the Guidelines. The specific regulation, which has been challenged is set out in full :

“2. (1) During the period specified in regulation 16, a person shall not without


(a) be found at any public place where the number of persons gathered at any

time exceeds ten;

(2) The limit of persons at–

(a) religious or ecclesiastical services or any other religious gatherings

including funerals, weddings and christenings, may exceed the number set out

in subsection (1), provided that they comply with the Guidelines for Places of

Worship issued by the Ministry of Health; and

(3) A person who contravenes this regulation commits an offence and is liable

on summary conviction to a fine of fifty thousand dollars and imprisonment for

a term of six months.”

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141. The offence-creating regulation appears therefore at sub-regulation 2(3). This imposes

penalties of a fine and imprisonment for the contravention of sub-regulation 2(1), which

prohibits gatherings in excess of 10 persons.

142. However, sub-regulation 2(1) does not contain an absolute prohibition. The legislator

provided an exception to the general prohibition at that sub-regulation, by including a

permissive provision which enables ecclesiastic congregations to exceed the stipulated

number of 10, provided that they comply with the Guidelines. Neither sub-regulations 2(2)

nor 2(3) speak to a breach or a contravention of the Guidelines. Rather, reference to the

Guidelines, which are in the nature of a proviso, take the conduct prescribed therein out of the

ambit of the more restrictive general prohibition. They reduce, not expand, the reach of the

prohibition by permitting behaviour that would otherwise be criminalised.

143. Our view is fortified by comparing The Regulations (No. 23) to its predecessor Regulation

(No. 22), which specifically mandated compliance with the Guidelines, in these terms :

“2. (1) During the period specified in regulation 16, a person shall not, without

reasonable justification –

(a) be found at any public place where the number of persons gathered at any time

exceeds five:

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(2) Religious or ecclesiastical services or any religious gatherings, including

funerals,

weddings and christenings shall comply with the Guidelines for Places of Worship

issued by the Ministry of Health.

(3) A person who contravenes this regulation commits an offence and is liable on

summary conviction to a fine of fifty thousand dollars and imprisonment for a term

of six months.”

144. Interestingly, the Regulations (No. 22) were the initial target of the Constitutional claim of

Pundit Maharaj. In the ex parte Application for Leave to apply for Judicial Review97,

attorneys-at-law for Pundit Maharaj alluded to the fact that their pre-action protocol letter was

issued when the Regulations (No. 22) had been in force. They were satisfied that the

Regulations (No.23) replicated the effect of regulation 2 of the Regulation (No.22)98. With

due deference to learned attorneys-at-law, we are not so satisfied. The Regulations (No. 22)

clearly criminalise breaches of the Guidelines, while the Regulations (No. 23) clearly do not.

97 Ex Parte Application to apply for judicial review filed on August, 5, 2021, as the originating process for both judicial review and constitutional

relief. 98 See page 89 ROA

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145. We are therefore of the view that the Judge fell into error and was plainly wrong in his view

that by sub-regulations (2) and (3) of the Regulation (No. 23), a breach of the Guidelines was

made a criminal offence. At paragraph 118 of his Judgment , the Judge ruled :

“Making the breach of the Ministry of Health Guidelines a criminal offence in my

view is outside of the ambit of the powers given to the Minister under the Ordinance

and in particular section 105”99

This finding was based on the incorrect premise, that a breach of the Guidelines was rendered

a criminal offence. The inexorable consequence of our view is that the Guidelines are not

penal legislation and do not fall under the regime of the requirements of offence-creating

statutes as out-lined in Quincy McEwan v The Attorney General of Guyana [2018] CCJ

30.100

99 See para 118 of the Judgment 100 McEwan v The Attorney General of Guyana [2018] CCJ 30. 5 where Saunders PCCJ set out the requirements of a penal statute in his way:

“A penal statute must meet certain minimum objectives if it is to pass muster as a valid law. It must

provide fair notice to citizens of the prohibited conduct. It must not be vaguely worded. It must define

the criminal offence with sufficient clarity that ordinary people can understand what conduct is

prohibited....”

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146. We recognize that the Guidelines should be clear in so far as religious leaders would have

been required to rely on their compliance with the Guidelines as a defence to charges that they

had breached.

147. The authorities on the issue of clarity speak with one voice. Laws must be sufficiently clear

to enable potential offenders to foresee, if need be with appropriate legal advice, the

consequences which a given action will entail. See R (on the application of Purdy) v. DPP

[2009] UKHL 45 See too Sabapathee v. The State [1994] 4 LRC 403.

148. In the recent case of Gallagher v the Secretary of State for the Home Dept,101 the Supreme

Court held that in order for a measure to have the quality of law, it must be possible to discover,

if necessary with the aid of professional advice, what its provisions are.

149. Accordingly, it is clear that even with penal statutes, the law requires sufficient and not

absolute clarity. The meaning and import of the law must be discernible with professional

advice.

150. The law has never required penal statutes to be entirely devoid of uncertainty. For example,

many statutes prohibit the performance of specified actions “without reasonable cause”. It is

left to the courts (or juries), applying their understanding of societal norms and mores, to

determine what is “reasonable”. That category is never exhaustively defined and is filled in or

101 Gallagher v. Secretary of State for the Home dept [2019] UKSC 3

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pruned as the case law develops. In this case, the Guidelines serve a comparable function by

pointing to what might be included in the meaning of “reasonable justification” in sub-

regulation 2(1).

We studied the Guidelines and have found them to be sufficiently clear. For example, there

were meticulous directions as to spacing, in these terms:

“ 1. Attendance shall be calculated for each building based on a measurement of

36 square feet per person. For instance,

• 1,000sqft = 27/25 persons;

• 2,500sqft = 69/60 persons;

• 4,000sqft = 111/100 persons;

• 7,500sqft = 208/200 persons; and

• 10,000sqft = 278/250 persons.

151. Similarly, the time required between services were specifically stated to be 45 minutes

between services. 102

102 See section 3 of the Guidelines of June 2020

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152. Where the Guidelines were not specific, religious leaders may draw on professional

advice, in most instances available from among the faithful in their congregations or in their

communities.

153. We therefore hold that the Judge was plainly wrong to hold that the Guidelines lacked

sufficient clarity. In our judgment, this finding was not consistent with a plain reading of

the Guidelines.

154. Our finding supra makes it unnecessary to consider whether the Judge should have made a

declaration of unconstitutionality. We must leave the enticing arguments on the protection

of the law for another time.

155. Accordingly, it is our view and we hold that the Judge was wrong in his finding of illegality

of sub-regulations 2 (2) and (3) the Regulations (No. 23). The appeal is dismissed and the

counter-appeal allowed.

ORDERS

1. The Appeals are dismissed.

2. The cross-appeal, in respect of the appeal by Satyanand Maharaj is allowed.

Mira Dean-Armorer

Justice of Appeal103

103 Assisted by Judicial Research Counsel, Mrs. Aleema Ameerali-Roop, Ms. Jeane Warner and Ms. Maltie Jagmohan

the republic of trinidad and tobago in the court of...

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