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THE THREE-FIFTHS MAJORITY DEBATE

Published: 
Sunday, March 5, 2017

The debate continues about when should the Government decide to include in any piece of legislation the preamble and the certificate that will confirm that Parliament is making a confession about its intention to legislate in a manner inconsistent with the fundamental human rights and freedoms provisions of the Constitution.

Section 5(1) of the Constitution states categorically:

“Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognised and declared.”

While the language seems explicit enough there is another view that suggests that the Attorney General is pretty much able to bring simple-majority legislation to Parliament that may seek to divert from these requirements.

The Canadian Bill of Rights 1960 model that T&T copied for its constitutional chapter on human rights makes provision for the grant of fundamental human rights and freedoms with one hand and simultaneously makes provision for the same rights to be taken away with the other hand. This is where the legislature is able to carry out its agenda in a manner that permits it the flexibility to “abrogate, abridge or infringe” human rights, but with the necessary safeguards.

There are three exceptions to the human rights provisions in our constitution, namely (i) exceptions for existing laws that were in force on August 1, 1976, when we became a republic; (ii) exceptions for periods of states of emergency; and, (iii) exceptions for certain legislation.

All of this is contained in Chapter One that begins with a sub-heading that refers to “Rights enshrined”. The wording of section 4 of the Constitution begins by making reference to the prior existence and the continued existence of a list of fundamental human rights and freedoms which are detailed in section 4 from subsections (a) to (k).

Any government can bring legislation to Parliament to infringe any of these enshrined rights and freedoms. In doing so they may remove the requirement for a three-fifths majority in both Houses of Parliament which usually provides a passport to legislate notwithstanding the existence of these rights and freedoms. The backstop in this arrangement is the judge who can ultimately decide that such a requirement for a three-fifths majority ought to have been included by Parliament when the legislation was being enacted or who can determine that even if it was properly enacted the legislation is “not reasonably justifiable”.

One such example was the Maxi Taxi Act 1979 that was enacted minus the three-fifths majority and did not include the preamble confessing inconsistency with sections 4 and 5 of the Constitution and there was no certificate authenticated by the Clerks in either House confirming the required three-fifths majority.

On May 19, 1992, Mr Justice Aeneas Wills sitting in the High Court in the matter of Curt Mendez and the Transport Commissioner and the Attorney General (HCA No. 342 of 1992) held, inter alia, as follows:

“By virtue of the provisions of Section 13 of the Constitution supra there is nothing to show that it was an Act which had been declared to have effect even though it was inconsistent with Section 4 of the Constitution. I therefore find that the enacting power of the Legislature was not exercised in accordance with the terms of the Constitution from which it derives its power. In the result, I find that sections 6, 7 & 12(f) are null and void and of no effect. That is to say they are unconstitutional.” (p. 16).

The error of the Parliament in not legislating in accordance with section 13 of the Constitution in 1979 where deprivation of property was concerned led to unconstitutionality being inflicted upon the Maxi-Taxi Act in 1992 when Curt Mendez challenged its validity.

Mr Justice Wills went further to say in his judgement as follows:

“Should these sections and regulations be excised from the Act, would the Legislature have enacted what survives without Sections 6 and 7 or Section 12? I think not. Moreover I think the Act would be unworkable. In the result:

(1) I declare that the Maxi-Taxi Act Chapter 48 : 53 is unconstitutional, null and void and of no effect…” (pp. 16-17).

This outcome led to Parliament having to enact a new Maxi-Taxi Act within a couple of weeks of the previous one being declared unconstitutional for failure to include the preamble of intended infringement and the certificate for a three-fifths majority.

I have detailed in columns on October 9, 2016, and February 19, 2017, the consensus that was reached between the Government and the Opposition in May 1992 to enact a new Maxi-Taxi Act in accordance with section 13 of the Constitution.

It is always better for Government and Opposition to make compromises where the protection of fundamental human rights and freedoms are concerned because the result is usually a safer piece of legislation.

The lesson to be learnt from this is that a final 39-0 vote is better than the unconstitutionality of the Maxi-Taxi Act in 1992.

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