Clearing the air on constitutional motions

THE EDITOR: Re: Publication by your newspaper of October 22, 2003 of an article under the heading “Attorney Slams Equal Opportunity Act” by Theron Boodan: Your news story of what transpired at the hearing on Tuesday October 21, 2003 of the constitutional motion to compel the Government to carry out the Equal Opportunity Act is inaccurate and untrue. One major inaccuracy is that Senior Counsel for the Applicants beseeched the Judge, Justice Gregory Smith, not to consider whether the Equal Opportunity Act is constitutional. Senior Counsel for the Applicants did not beseech the Judge. He submitted to the Judge that the Judge had no jurisdiction in law to review the constitutionality of the Act, since the constitutional motion before him was brought by the Applicants relying on the Equal Opportunity Act to show that the Act gave them rights to remedy discriminatory wrongs but they cannot get the protection of the Act since Government has not implemented the Act. Senior Counsel submitted that his clients are not asking for the Act to be declared unconstitutional and therefore the State in the constitutional motion before the Judge cannot disavow its own laws. If the State believes the law is unconstitutional, it must go to Parliament to remedy the law.

The State in a constitutional motion which alleges that individuals are denied the protection of an Act of Parliament cannot counterclaim or set up as a defence that an Act passed by the State is unconstitutional. It is only where an individual has locus standi in a Court that his fundamental rights are contravened by a law that the Court has jurisdiction to pronounce upon the constitutionality of the law or order to give effect to the enjoyment and enforcement of the human and fundamental freedoms of the individual. The law does not permit the State to file a constitutional motion. On the contrary, all constitutional motions must be filed against the State or a public authority endowed with coercive powers. Section 14 of the Constitution expressly gives jurisdiction to the High Court, Court of Appeal or Privy Council to declare an Act of Parliament constitutional but only where the Act interferes and/or contravenes the fundamental rights of the individual before the Court. Senior Counsel referred to several legal authorities, including decisions of the Privy Council which clearly laid down this rule. Before the Constitution came into force the law did not permit the Court to declare any Act of Parliament illegal. For centuries the law decided:-

(1) The Government or the executive arm of the State cannot suspend or dispense with a law or the operation of a law. The Bill of Rights of 1688 makes such action illegal and this is the existing law of Trinidad and Tobago.

(2) The Courts, (subject to the powers recently given by the Constitution in 1962 for the Supreme Court in a case where an individual has locus standi before a Court that an Act of Parliament interferes with his constitutional right to declare the Act unconstitutional) do not have any power to declare an Act of Parliament illegal and instead has a duty to enforce the law.
It is illegal and/or unconstitutional for a Court to disregard the existing law which prohibits the Court from declaring an Act of Parliament illegal. Senior Counsel told the Judge that having regard to clear law, he does not want to be party to responding to the written submissions of the State that the law is unconstitutional in his opening presentation, and instead would reserve his position in his Reply to decide whether to answer any submissions on the State’s claim that the law is unconstitutional.

GARNET MUNGALSINGH
San Fernando