Sharma & Ors v. The Attorney General of Trinidad and Tobago  (Trinidad and Tobago ) [2007] UKPC 41 (20 June 2007)

Privy Council Appeal No 73 of 2006

Chandresh Sharma and others						Appellants
v.

The Attorney General of Trinidad and Tobago 	Respondent

FROM

THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 20th June 2007

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Present at the hearing:-

	Lord Bingham of Cornhill
	Lord Hope of Craighead
	Lord Phillips of Worth Matravers
	Lord Rodger of Earlsferry
	Lord Carswell
	
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		[Delivered by Lord Bingham of Cornhill]

1.	The issue in this appeal is whether the appellants are entitled to remuneration as members of the House of Representatives (“the House”) for a period beginning on 11 December 2001 and ending on 6 October 2002.  In a judgment given on 24 March 2005 Bereaux J held that they were not so entitled.  On 17 March 2006 the Court of Appeal (Sharma CJ, Warner and Mendouca JJA) affirmed that decision.  The appellants maintain their claim, made by way of constitutional motion.

2.	In a general election held on 10 December 2001 the eighteen appellants, all members of the United National Congress (“the UNC”), were elected to the House of Representatives (“the House”).  In the ordinary course, the House would at its first meeting after the election and before proceeding to the despatch of any other business, have elected a Speaker and Deputy Speaker pursuant to section 50 of the 1976 Constitution.  The appellants would then, in accordance with section 57 of the Constitution, have taken the oath of allegiance prescribed in the First Schedule to the Constitution.  They would thereupon have become entitled to participate fully in the business of the House and to payment of a parliamentary salary at the approved rate with effect from 11 December 2001, the day after the poll.

3.	But events did not follow an ordinary course.  This was because, as more fully described in Bobb and another v Manning [2006] UKPC 22, paras 2-6 and 9, the general election yielded an exact equality of seats in the House to the People’s National Movement (“the PNM”) and the UNC, each party winning eighteen seats.  Neither party therefore had a majority in the House.  The President, acting under section 76(1)(b) of the constitution, appointed Mr Manning, the leader of the PNM, as Prime Minister on 24 December 2001.  Mr Manning acted promptly to appoint ministers.  On 26 December 2001, with effect from the same date, he appointed the seventeen PNM members of the House, all the members other than himself.  On 28 December 2001, with effect from the same date, he appointed ten members of the Senate also to be ministers.  Upon appointment all ministers became entitled to ministerial salaries at the prescribed rate.  No complaint is made by the appellants about these ministerial appointments or the payments to which those appointed became entitled.

4.	Pursuant to a presidential proclamation made pursuant to section 67(1) of the Constitution, the new Parliament met for the first time after the general election on 5 April 2002.  On that day and the following day the House attempted but failed to elect a Speaker.  Because of the equality of votes on each side of the House there was no majority in favour of any member put forward by either party, and no majority in favour of any outside candidate.  There was thus an impasse.  On 6 April 2002 Parliament was prorogued.  On 28 August 2002 Parliament met again and the House again tried to elect a Speaker, but it remained deadlocked and was unable to make an election.  On 30 August 2002 the President dissolved Parliament, and a general election was held on 7 October 2002.  In this, the PNM won a clear majority of seats, and the previous deadlock was not repeated.  But the appellants were aggrieved: because no Speaker had been elected in the previous Parliament they had been unable to take the oath of allegiance, although it has never been suggested that they were not entirely ready to do so; and because they had not taken the oath of allegiance the House authorities held that they were not entitled to draw salary (although entitled to some minor parliamentary allowances).  The appellants were the more aggrieved because their PNM opponents, all in receipt of ministerial salaries, suffered no comparable detriment.

5.	The Constitution is, by section 2, the supreme law of Trinidad and Tobago and any other law inconsistent with it is, to the extent of any inconsistency, void.  Section 4 gives constitutional protection to certain listed rights.  Section 14 provides for redress where a constitutional right has been, is being or is likely to be contravened.  Section 57, referred to in paragraph 2 above, provides:

“57.	No member of either House shall take part in the proceedings of that House (other than proceedings necessary for the purposes of this section) until he has made and subscribed before that House the oath of allegiance, so however that the election of a Speaker and Deputy Speaker of the House of Representatives and the election of a President of the Senate and Vice-President of the Senate may take place before the members of the House of Representatives, or the members of the Senate, as the case may be, have made and subscribed such oath.”

This provision is reinforced by Rule 2 of the Standing Orders of the House 1961.  Sections 140-141 of the Constitution are central to this appeal.  They provide:

“140.	(1) There shall be a Salaries Review Commission which shall consist of a Chairman and four other members all of whom shall be appointed by the President after consultation with the Prime Minister and the Leader of the Opposition.
	(2) The members of the Salaries Review Commission shall hold office in accordance with section 126.
141.	(1) The Salaries Review Commission shall from time to time with the approval of the President review the salaries and other conditions of service of the President, the holders of offices referred to in section 136(12) to (15), members of Parliament, including Ministers of Government and Parliamentary Secretaries, and the holders of such other offices as may be prescribed.
	(2) The report of the Salaries Review Commission concerning any review of salaries or other conditions of service, or both, shall be submitted to the President who shall forward a copy thereof to the Prime Minister for presentation to the Cabinet and for laying, as soon as possible thereafter, on the table of each House.”

Section 136(12) to (15), referred to in section 141(2), relates to the office of Auditor-General and other prescribed offices, the office of Judge, the offices of the Director of Public Prosecutions, Chief Parliamentary Counsel and Solicitor General and certain other offices.

6.	As long ago as 1961 the House made Standing Orders for its own governance.  Among these is Rule 91, which provides:

“91.	(1) In any matter not herein provided for, resort shall be had to the usage and practice of the Commons House of Parliament of Great Britain and Northern Ireland, which shall be followed as far as the same may be applicable to this House, and not inconsistent with these Standing Orders nor with the practice of this House.
	(2) In cases of doubt the Standing Orders of this House shall be interpreted in the light of the relevant usage and practice of the House of Commons, but no restrictions which the House of Commons has introduced by Standing Order shall be deemed to extend to this House or its Members until the House has provided by Standing Order for such restriction.”

This is a provision of obvious relevance since the most recent (23rd, 2004) edition of Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament describes the UK practice very clearly on pages 27-28:

“The salary of a Member becomes payable when he takes the oath or makes the affirmation required by law, and begins from the day following that on which the poll is held … A Member who has not taken the oath within six months of the return of his writ to the Clerk of the Crown is not entitled to claim any salary prior to the date he takes the oath … A person who is a Member at the time of a dissolution of Parliament continues to receive his salary until the end of the day of the poll in the consequent general election.”

7.	It was argued for the Attorney General in the courts below that the Constitution conferred no right on a member of the House to receive salary, and no right to receive payment on election; that any void in the Trinidad practice was to be filled by reference to British practice, which made payment of salary conditional upon taking the oath; and that the appellants had no tenable complaint of denial of the right not to be deprived of property without due process of law, denial of the right to equality before the law and the protection of the law or denial of the right to equality of treatment from a public authority in the exercise of functions under articles 4(a), (b) and (d) of the Constitution.  The judge and the Court of Appeal accepted these arguments.  Before the Board Mr Peter Knox QC repeated them.  But he also pointed out that by section 49(2)(b) and Rule 84 of the 1961 Standing Orders a member of the House may be required to vacate his seat if absent from the House without leave for more than a specified period, underlining the fact that parliamentary salaries are paid for the performance of parliamentary duties, which in the absence of a Speaker the appellants were unable to perform.  Mr Knox also drew attention to the legislation governing the appropriation and disbursement of public funds in Trinidad, and to the role of the Clerk of the House in Parliament as the Accounting Officer of Parliament.

8.	The Board accepts that neither the Constitution nor any other legislation confers on members of the House an express right to be paid as members.  But members of the House of Commons at Westminster have received salaries since 1911, and members of the House in Trinidad have received salaries since, it is understood, colonial days.  It is difficult to imagine a modern, democratic state in which members of the lower house, at least, are not paid.  While sections 140-141 confer no express right of payment, they plainly assume that the Salaries Review Commission will have salaries to review, and it cannot be supposed that ministers, parliamentary secretaries or holders of offices such as those listed and referred to in section 136(12) to (15) would perform their important functions without payment.  Thus the clear premise of sections 140-141 is that salaries, varied from time to time, will be paid.

9.	British parliamentary practice would indeed suggest, as the courts below held, that the taking of the oath is a necessary pre-condition of the right to payment of salary as a Member of Parliament.  But British parliamentary practice offers no guidance in the unique parliamentary situation which occurred in Trinidad in 2001-2002.  The Board was referred to no occasion, and is aware of none, on which it has proved impossible to elect a Speaker of the House of Commons, which election is ordinarily (following inter-party discussion) a relatively uncontentious matter.  There is thus no British precedent for a situation in which members, present in person and willing to take the oath, are denied the opportunity to do so by the lack of a Speaker, thereby losing their entitlement to payment as members.  So it is necessary to infer what the framers of the Constitution would have intended, had they foreseen this extraordinary and obviously unintended contingency.

10.	It must, in the Board’s opinion, be inferred that the framers of the Constitution intended the parliamentary system to operate in a way which, subject to the constraints of democratic choice and adversarial politics, is fair and even-handed as between competing partisan interests.  In the present instance, the PNM cannot be accused of abusing power or oppressing the UNC members in any way relevant to this appeal.  But the result must strike any objective onlooker as grossly unbalanced, the members on one side of an equally divided house all receiving ministerial salaries and the members on the other receiving (apart from minor allowances) no remuneration at all.  The conclusion must be that the right to receive salary as an elected member of the House is enforceable as from the day after the general election poll if a member present and willing to take the oath is denied the opportunity to do so.

11.	Counsel for the Attorney General pointed out that when both the PNM and the UNC put forward their own lists of outside candidates for the speakership the UNC members voted not only against the PNM candidates but also their own.  This was not well-advised, and was probably the result of the view, held by the UNC at the time, that the whole situation was unconstitutional.  Be this as it may, the UNC conduct was not influential, since the PNM members voted against the UNC candidates for the speakership and there would have been deadlock even if the UNC members had supported their own outside candidates.

12.	It is true, as was argued for the Attorney General, that parliamentary salaries are paid in large measure for performance of duties in the House.  But elected members of the House have an important responsibility to serve the interests of their constituents in an advisory capacity, and by way of representations to ministers and public authorities, which duties they were able to carry out during the parliamentary interregnum.  They were, moreover, in the extraordinary situation which pertained in 2001-2002, obliged to hold themselves in readiness to perform their full parliamentary duties if and when the speakership problem was resolved.  They were not free to engage in other professional activities of anything other than a casual or ad hoc nature.

13.	In agreement with the courts below, and despite the contrary argument of Sir Fenton Ramsahoye SC, the Board does not find article 4(a), (b) and (d) (the right not to be deprived of property without due process of law, the right to equality before the law and the protection of the law and the right to equality of treatment from a public authority in the exercise of functions) at all obviously apt to found the appellants’ complaint.  But they have no need to rely on these provisions.  The Constitution by implication confers on members of the House a right to be paid.  As a right conferred by the Constitution this is a right entitled to constitutional protection.  There can be no objection in principle to a rule which ordinarily treats the taking of an oath of allegiance at the outset of a new session as a pre-condition of receiving salary.  But the constitutional right to payment is emasculated if a duly elected member, present in the House and willing to take the oath and participate fully in the business of the House is denied payment because a procedural rule, outside the control of the member, prevents the taking of the oath.  In such a situation the procedural rule must yield to the stronger imperative of the constitutional right.  Counsel for the Attorney General did not suggest that, if this was the correct interpretation of the Constitution, effect could not or would not be given to it.

14.	For these reasons the appeal will be allowed.  The case must be remitted to the Supreme Court for the assessment (failing agreement) of the salary and outstanding allowances payable to each appellant.  The Attorney General, representing the State, must pay the costs of the appellants in the courts below and before the Board.  The appellants were, in the Board’s opinion, justified in instructing two leading counsel, and the Board will certify accordingly.