Sharma & Ors v. Attorney General of Trinidad and Tobago (Trinidad & Tobago)  UKPC 37 (03 August 2009)
Privy Council Appeal No 53 of 2008
1) Sanatan Dharma Maha Sabha of Trinidad and Tobago Inc
(2) Satnarayan Maharaj
(3) Islamic Relief Centre Limited
(4) Inshan Ishmael Appellant
The Attorney General of Trinidad and Tobago Respondent
THE COURT OF APPEAL OF TRINIDAD AND TOBAGO
JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL
Delivered the 28th April 2009
Present at the hearing:-
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
[Delivered by Lord Hope of Craighead]
The issue before the Board
The existing law provisions
"All enactments passed or made by any Parliament or person or authority under or by virtue of the former Constitution and not before the appointed day declared by a competent Court to be void by reason of any inconsistency with any provision of the former Constitution, including in particular sections 1 and 2 thereof, and that are not repealed, lapsed., spent or that had not otherwise had their effect, shall be deemed to have been validly passed or made and to have had full force and effect as part of the law of Trinidad and Tobago immediately before the appointed day, even if any such enactments were inconsistent with any provision of the former Constitution including in particular sections 1 and 2 thereof."
The approach of the courts below
The compatibility issue
"Subject to the provisions of sections 3, 4 and 5 of this Constitution, no law shall abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognised and declared..."
Section 18 of the 1976 Act
"First, several of the Governors of the States and the Governor-General of Australia are appointed under the Royal Prerogative. Their offices are, in most cases, created by a prerogative legislation called the Letters Patent."
The use of Letters Patent as a form of legislation within the accepted procedures of rule-making in a democratic society is also discussed in a Research Note prepared by the Department of the Parliamentary Library of the Commonwealth of Australia. After referring to Acts of Parliament and delegated legislation, the author, Roy Jordan, states:
"Outside of these well known methods of law making stands legislation made under Letters Patent, also known as prerogative instruments, and includes legislation setting out procedures for granting honours and awards which are made without parliamentary scrutiny and have practically no review procedures."
"There shall be a Cabinet for Trinidad and Tobago which shall have the general direction and control of the government of Trinidad and Tobago and shall be collectively responsible therefor to Parliament."
It was by and with the advice of the Cabinet that the Order of Trinity was established by Her Majesty. Constitutional validity was given in this way to its creation by the executive. But the authority to create the Order lay not with the Cabinet but with Her Majesty in the exercise of the prerogative. The Sovereign is the fountain of all honours in all territories of which she is Queen: Chitty, Treatise on the Law of the Prerogatives of the Crown (1820), pp 107-108. It was under and by virtue of the prerogative that this was done, by and with the advice of the executive. This is something that, as Roy Jordan says in his Research Note, is done without parliamentary scrutiny. In other words, the additional step of parliamentary scrutiny was not required for its validity.
The 1962 Constitution
Concurring Judgment by Lord Mance