Suratt & Ors v. The Attorney General of Trinidad and Tobago (Trinidad and Tobago )  UKPC 55 (15 October 2007)
Privy Council Appeal No 84 of 2006
(1) Kenneth Suratt (on behalf of himself and 14 others)
(2) Devon Garray
(3) Davis Thomas
(4) Dianne Arneaud
(5) Abygail Arneaud
(6) Rakesh Persad
(7) Ashton Ramsundar Appellants
The Attorney General of Trinidad and Tobago Respondent
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 15th October 2007
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Present at the hearing:-
Lord Bingham of Cornhill
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
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DISSENTING JUDGMENT OF LORD BINGHAM OF CORNHILL
Hinds v The Queen
"They embody what is in substance an agreement reached between representatives of the various shades of political opinion in the state as to the structure of the organs of government through which the plenitude of the sovereign power of the state is to be exercised in future."
Because constitutions such as that of Jamaica (or Trinidad and Tobago) are (p 212C) evolutionary, not revolutionary, and provide for continuity of government, the practice in drafting constitutions is to leave much to implication.
"The Chapter dealing with the judicature invariably contains provisions dealing with the method of appointment and security of tenure of the members of the judiciary which are designed to assure to them a degree of independence from the other two branches of government. It may, as in the case of the Constitution of Ceylon, contain nothing more. To the extent to which the Constitution itself is silent as to the distribution of the plenitude of judicial power between various courts it is implicit that it shall continue to be distributed between and exercised by the courts that were already in existence when the new Constitution came into force; but the legislature, in the exercise of its power to make laws for the 'peace, order and good government' of the state, may provide for the establishment of new courts and for the transfer to them of the whole or part of the jurisdiction previously exercisable by an existing court. What, however, is implicit in the very structure of a Constitution on the Westminster model is that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the Chapter dealing with the judicature, even though this is not expressly stated in the Constitution: Liyanage v The Queen  1 AC 259, 287-288."
"Any express provision in the constitution for the appointment or security of tenure of judges of that court will apply to all individual judges subsequently appointed to exercise an analogous jurisdiction, whatever other name may be given to the 'court' in which they sit: Attorney-General for Ontario v Attorney-General for Canada  AC 750."
"Where, under a constitution on the Westminster model, a law is made by the Parliament which purports to confer jurisdiction upon a court described by a new name, the question whether the law conflicts with the provisions of the constitution dealing with the exercise of the judicial power does not depend upon the label (in the instant case 'The Gun Court') which the Parliament attaches to the judges when exercising the jurisdiction conferred upon them by the law whose constitutionality is impugned. It is the substance of the law that must be regarded, not the form. What is the nature of the jurisdiction to be exercised by the judges who are to compose the court to which the new label is attached? Does the method of their appointment and the security of their tenure conform to the requirements of the constitution applicable to judges who, at the time the constitution came into force, exercised jurisdiction of that nature?: Attorney-General for Australia v The Queen  AC 288, 309-310."
Lord Diplock then (p 214D) considered constitutional entrenchment, and said:
"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."
"But more important, for this is the substance of the matter, the individual citizen could be deprived of the safeguard, which the makers of the Constitution regarded as necessary, of having important questions affecting his civil or criminal responsibilities determined by a court, however named, composed of judges whose independence from all local pressure by Parliament or by the executive was guaranteed by a security of tenure more absolute than that provided by the Constitution for judges of inferior courts."
Lord Diplock acknowledged (p 222B) that the answer to a constitutional challenge of this kind might not be clear-cut:
"As with so many questions arising under constitutions on the Westminster model, the question whether the jurisdiction vested in the new court is wide enough to constitute so significant a part of the jurisdiction that is characteristic of a Supreme Court as to fall within the constitutional prohibition is one of degree."
Thus difficult cases will call for an exercise of informed judgment.
"any act which —
(a) is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of persons;
(b) is done because of the gender, race, ethnicity, origin or religion of the other person or of some or all of the persons in the group; and
(c) which is done with the intention of inciting gender, racial or religious hatred."
The Attorney General submitted below that this subsection restricted freedom of thought and expression protected by section 4(i) of the Constitution and so required an enhanced parliamentary majority. The appellants drew attention to the Sedition Act, which had been in force when the Constitution was adopted and so enjoyed protection under section 6 of the Constitution as an existing law. By sections 3 and 4 of the Sedition Act it was an offence (among other things) to engender or promote feelings of ill-will or hostility between one or more sections of the community on the one hand and any other section or sections of the community on the other. Thus section 7, the appellants contended, did little or nothing to extend the law. The judge did not decide this point but because of what he regarded as the vagueness of section 7 saw much force in the Attorney General's argument that it infringed freedom of expression (paras 52-54). The Court of Appeal held that section 7 altered the law, and that it derogated from the right to freedom of thought and expression to an extent to which the Sedition Act did not derogate, but only in relation to gender (paras 34-39). It therefore held that section 7 was not invalidated, but should be construed as if the reference to gender were absent. It is again unnecessary for me, and perhaps undesirable, to express a concluded opinion. But for reasons similar to those given in paragraph 33 above I would be slow to hold that section 7 is invalid even to the limited extent held by the Court of Appeal.
JUDGMENT OF THE BOARD PREPARED BY BARONESS HALE OF RICHMOND
"In the context of the present state of the administration of justice in Trinidad and Tobago, it is always desirable to devise mechanisms to keep matters from cluttering the formal court system. Equally desirable is the need to give the Commission 'teeth'."
The Board is familiar with some of the problems which may have led the Commission to say what it did: see, for example, Boodhoo v Attorney General for Trinidad and Tobago  UKPC 17. The Commission recommended that a Tribunal be set up within the Equal Opportunities Commission and that at least one member of the Commission should possess the legal qualifications of a Judge of the High Court (page 40, recommendation 14). The problem with this, as Geoffrey Robertson QC explained in an advice on the 1998 Equal Opportunities Bill, was that the Commission was to be a party to all proceedings and could not be judge in its own cause. The new Tribunal therefore had to be entirely independent of the Commission. The decision could have been taken to increase the jurisdiction of the High Court to deal with these new claims, but for very understandable and sensible reasons it was thought that a new and specialist body would be preferable.
"Courts are of two principal classes – of record and not of record. A court of record is one whereof the acts and judicial proceedings are enrolled for a perpetual memory and testimony, and which has the power to fine and imprison for contempt of its authority. . . Courts are also divided into superior and inferior, superior courts being those which are not subject to the control of any other courts, except by way of appeal."
Thus the decisions of the Tribunal, as a superior court, would not be subject to judicial review, unlike the decisions of inferior courts of record such as the English county courts (although these days appeal is regarded as the more appropriate method of challenge). And the Tribunal would be able to punish for contempt of its authority, as can the English county courts. But the EOA clearly does not contemplate that the Tribunal should have an unlimited or inherent jurisdiction. Its jurisdiction is limited by section 41(4), which provides:
"The Tribunal shall have jurisdiction –
(a) to hear and determine complaints referred to it by the Commission;
(b) to require persons to attend before it for the purpose of giving evidence and producing documents; and
(c) to make such declarations, orders and awards of compensation as it thinks fit."
The powers in section 41(4)(b) and (c) are clearly intended to be used, and used only, in connection with the jurisdiction conferred by section 41(4)(a). If there were any doubt about that, these paragraphs should be interpreted so as to be in conformity with the Constitution. Their scope is in any event limited by the nature of the subject matter: they are concerned only with remedying discrimination as defined by the EOA in the circumstances prescribed by the EOA.
"If the Supreme Court thinks it expedient in any proceedings, it may hear and dispose of the proceedings wholly or partly with the assistance of one or more specially qualified advisers appointed by it."
These are, of course, ad hoc appointments enjoying much less protection than do the lay-assessors on the Tribunal. But their role is the same: to assist the court in hearing and disposing of the proceedings. The decision remains that of the court. Section 44(7) of the EOA makes it clear that "The decision of the Tribunal in any proceedings shall be made by the Chairman and shall be delivered by him".