Prohibition against discrimination

THE RIGHT to equality before the law and to equal protection of the law without any discrimination does not make all differences of treatment discriminatory.

A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of Article 26.

And, at paragraph 16, the Committee noted that although there was no intention to discriminate, the effect of the impugned legislation was to create a discrimination based on gender (sex).

In Karnel Singh Bhinder v Canada (No 208/1889, ICCPR), the impugned legislation was not found to be in breach of Article 26 because it was determined that its purpose (of having certain workers wear hard hats for their protection — challenged by a Sikh) was reasonable, directed to objective purposes and justified.

In Althammer v Austria (No 998/2001, ICCPR), the complaint was that though certain amendments to regulations were objective on the face of it, they were discriminatory in effect: “The authors claim that they are victims of discrimination because the abolition of the household benefits affects them, as retired persons, to a greater extent than it affects active employees. The Committee recalls that a violation of Article 26 can also result from the discriminatory effect of a rule or measure that is neutral at face value or without intent to discriminate. However, such indirect discrimination can only be said to be based on the grounds enumerated in Article 26 of the Covenant if the detrimental effects of a rule or decision exclusively or disproportionably affect persons having a particular race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, rules or decisions with such an impact do not amount to discrimination if they are based on objective and reasonable grounds.” (Emphasis mine).

In Althammer the Committee concluded that the impugned measure was based on objective and reasonable grounds and did not amount to discrimination as prohibited by Article 26 of the ICCPR.

This consideration of the above stated opinions of the HRC is based on two factors.

First, the obvious commonalities in intention and purpose between Article 26 of the ICCPR and section 4(b) and (d) of the 1976 Constitution (when read together with the general non-discrimination prohibition).

Second, the desirability of interpreting local legislation, so far as is reasonably possible, in harmony with the international treaty obligations of the State [see, Boyce v R (2004) PCA No 99 of 2002, at paragraphs 26 and 54, per Lord Hoffman].

In light of all of the above, and having considered the inclination of the local courts, the approach of the Indian courts and the opinions of the HRC on Article 26 of the ICCPR, I am of the following opinions with respect to the interpretation and application of the general prohibition against discrimination and section 4(b) of the Constitution, in so far as laws are concerned.

First, in deciding whether there has been a violation of the general prohibition and/or section 4(b) both intention/purpose and effect must be considered. In this regard, three possibilities exist which can result in a breach of the guaranteed rights: (i) the intention/purpose of the law may be discriminatory, that is, it is discriminatory “on its face;” (ii) the effect of the law may be discriminatory though its intention/purpose is laudable; (iii) both the intention/purpose and the effect may be discriminatory.

It would appear that in both (i) and (iii) a fortiori, the law would be deemed in violation of the equality/ non-discrimination provisions.

However, regarding category (ii), though a law may in its effect be discriminatory, it may not be considered a breach of the constitutional equality provisions so as to warrant relief under section 14 [see: Harrikissoon v Attorney General (1980) AC 265 per Lord Diplock].

Two obvious examples come to mind: (a) trivial and frivolous claims; and (b) justifiable, objectively purposeful and reasonable provisions (as in the Karnel Singh Bhinder case).

Within the second category of reasonableness, objective purposefulness and justifiability, several considerations would no doubt apply. Indeed, each case would have to be evaluated on its own particular circumstances.

However, some considerations would likely be: is the effect of the differential treatment disproportionate or arbitrarily exclusive; are there objective and reasonable grounds for the differential treatment which are at least compatible with the values (principles and beliefs) enumerated in the Preamble to the Constitution and with a democratic way of life; is there reasonable accommodation for those who experience the effects of the differential treatment; and what is the historical, cultural, sociological, economic and political context (reality) in which the law is to function (for example, is there some general disadvantage, such as historical alienation or religious marginalisation or political powerlessness or social stigma or economic depravation associated with those who will experience the differential treatment or conversely general advantage in the stated categories)? Clearly, wherever reasonableness must be shown, fairness is an essential component.

Second, with respect to the general non-discrimination prohibition (by reason of race, origin, colour, religion or sex), in my opinion these stated factors create a special category of discrimination which, if present, affect the approach of the courts in determining whether there has been a breach of the section 4 rights and freedoms.

As already pointed out, in Trinidad and Tobago, section 4(b) and (d) coexist together with the general non-discrimination prohibition in section 4.

The general prohibition applies to all of the eleven enumerated rights and freedoms.

An analysis of the five stated aspects of the general prohibition reveal that they consist of personal characteristics of the individual and, but for religion, are matters which are immutable, in the sense that they cannot be changed solely by the choice of the individual. Clearly they go to the core identity of a person.

Seen in this light it is not surprising that religion is included, because anthropologists agree and it is the common experience that one’s religion is an aspect of identity generally conferred at birth and that its values, assumptions and beliefs become deeply embedded in an individual’s consciousness.

Thus, one may say that these five stated personal characteristics distinguish people on the basis of inherent attributes rather than on behavioural traits.

They describe more who and what a person is, rather than how a person acts or what a person does.

However, because of the nature of religion, these observations apply equally to a community of believers and impact also on behaviour.

This general prohibition against non-discrimination thus prohibits laws that differentiate between people on the basis of their inherent personal characteristics and attributes. A court is entitled to consider granting constitutional relief, where the claim is that a person has been discriminated against by reason of a condition which is inherent and integral to his/her identity and personhood. Such discrimination undermines the dignity of persons, severely fractures peace and erodes freedom.

Courts will not readily allow laws to stand, which have the effect of discriminating on the basis of the stated personal characteristics. Justification, reasonableness and objective purposefulness would have to be clearly established and one would have to carefully consider issues of proportionality and whether adequate accommodating measures were present or available.

Third, legislative discrimination could be intentional or unintentional. In terms of effect it could be direct or indirect. For example, if a benefit available to others similarly circumstanced is denied or unavailable to a complainant by reference to a distinction stated or implied, or by reference (explicit or implicit) to any of the stated personal characteristics in the general prohibition, then barring satisfactory justificatory factors, a breach of section 4 could be established.

In my opinion, subject to justification and assuming similar circumstances, it would generally be enough to show that the impugned law results in disadvantageous treatment, whether direct or indirect, especially where one of the personal characteristics in the general prohibition is at stake.

Fourth, there is inherent in the equality provisions an inescapable comparative element. There is no such thing as absolute equality, in the sense that the law must treat every person equally: penal provisions, income tax and succession legislation demonstrate legitimate differential treatment.

However, what the concept of equality encompasses is the idea that persons who are alike (similarly situated/circumstanced) should be treated alike; and that persons who are not alike could be treated differently, though in some proportion to the differences.

Thus a person is treated unequally if that person is treated differently (and worse) than others who (the comparison group) are similarly situated (circumstanced) to the complainant. In Bhagwandeen v Attorney General, PC App No 45 of 2003, Lord Carswell stated, at paragraph 18: “A claimant who alleges inequality of treatment or its synonym discrimination must ordinarily establish that he has been or would be treated differently from some other similarly circumstanced person or persons, described by Lord Hutton in Shamoon v Chief Constable of the Royal Ulster Constabulary (2003) 2 AU ER 26 at paragraph 71, as actual or hypothetical comparators.

The phrase which is common to the anti discrimination provisions in the legislation of the United Kingdom is that the comparison must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.” Critical in this analysis therefore is the determination of who is similarly situated/circumstanced to whom and what kinds of different treatment are appropriate for those who are similarly situated/circumstanced.

Fifth, the burden of proof is on the complainant to show both likeness and differential treatment (inequality). Once that is done, the burden shifts to the State to show Burden of proof is on the complainant reasonableness, objective purposefulness, justification, accommodation etc. In my opinion, this is so even though there is a presumption of constitutionality in favour of the impugned legislation. Further, where the alleged discrimination is on the basis of one of the stated personal characteristics in the general prohibition, then discrimination is established upon proof of likeness and differential treatment on one of the stated personal characteristics. Here, the level of scrutiny by the courts, of the State’s justification, is high. Discrimination based on personal characteristics is a special category in section 4.

Sixth, “equality before the law” and “the protection of the law” [4(b)] encompass both the negative concept that “no person is above the law” and the positive concept that all persons have an inalienable right to enjoy their constitutional rights and freedoms, unrestrained except by equal and impartial laws and provided the same are reasonably justifiable in a democratic society [section 13(1) of the Constitution].

VG Ramachandran in his text Fundamental Rights and Constitutional Remedies (discussing the scope of Article 14 of the Indian Constitution — at page 212) states the position as follows: “No individual or groups of individuals should have differential or preferential treatment over other individuals or groups of individuals similarly circumstanced and with equal qualifications.” Thus, a complainant must show that he/she has suffered some form of differential treatment or disadvantage, by reason say of one of the personal characteristics in the general non-discrimination prohibition.

This differential treatment or disadvantage may be direct or indirect. For example, a law which results in preferential treatment of a group by reason of religion, in comparison to others similarly circumstanced, with the effect that those others experience some disadvantages, could amount to discrimination by reason of religion and a breach of the protection of the law aspect of the 4(b) equality provision (which is accentuated given the constitutional right to enjoy freedom of religious belief and observance — section 4(h)).

In determining the protection of the law aspect of section 4(b) regard must also be had to, inter alia, the constitutionally guaranteed rights and freedoms.

Seventh, in determining effect — differential treatment and disadvantage, a difficult question arises as to whether the test is objective or subjective. In my opinion, especially when dealing with the personal characteristics in the general prohibition, it is unrealistic to have an entirely objective test. I would therefore frame the test as “subjective objectivity,” in order to capture the idea that it is not either one or the other, but a synthesis of both, to be applied appropriately in the circumstances of each case, having regard in particular to the ground of the alleged discrimination or inequality.

An example will illustrate the dilemma and the recommendation: “conscience and religious belief.” Conscience and religious belief are clearly highly subjective matters — both of which are considered critical to the democratic way of life which the 1976 Constitution affirms, sustains and protects. Yet an objective element is necessary, for a court must be under a duty to inquire whether the alleged beliefs are reasonable and rational (from the individual’s point of view) and sincerely subscribed to (that is honestly believed in and not fictitious or capricious).

Eight, the time at which the court must make its interpretation and assessment is the present time.

That is, the court must look at the circumstances as they exist at the present time and determine whether there is a breach of the Constitution or not (see, Boyce v R PCA No 99 of 2002 at paragraphs 54 to 59: Constitution as a living instrument).

Ninth, as indicated first and fifth above, regard must be had specifically to the intention/ purpose of the law and an evaluation made as to the justifications for and the reasonableness and legitimate aims of the provisions.

B. ADMINISTRATIVE ACTION In Trinidad and Tobago, the law as to what is required to prove inequality of treatment or discrimination in the application of laws by administrative action is in a state of uncertainty. In the Court of Appeal there is no clear agreement as to what is required. In Bhagwandeen v The Attorney General [2003] the Privy Council having noted the decisions of the Court of Appeal in Smith v LJ Williams and in AG v KC Confectionary Ltd (1985) 34 WIR 387 and the stated necessity for a claimant to establish mala fides or a clear and intentional discrimination on the part of a public official or authority, observed that: (i) “Deyalsingh J reasoned cogently” in the judgment at first instance that was overturned in the Court of Appeal in KC Confectionary.

(ii) The Privy Council was “inclined to the view that there may have been a degree of confusion between two distinct concepts, the presumption of regularity and the necessity for proof of deliberate intention to discriminate in a claim for inequality of treatment.” (iii) In discrimination cases in the UK the “preferred” test was “the causative to the subjective construction . . . that discrimination could be established even though the respondent had not intended to discriminate” (at paragraphs 20 - 23 of Lord Carswell’s judgment).

Further, in my opinion, the Board invited the local courts to reconsider these issues.

That opportunity for reconsideration arose in CBS v The Attorney General (2004), in which Hamel-Smith JA, Warner JA and Mendonca JA all gave written decisions.

Except for outcome there was no obvious agreement on which of the causative or subjective approaches should be adopted.

Mendonca JA clearly was of the opinion that the test should remain the subjective one, with a claimant having to prove mala fides, or “at least an element of deliberateness,” or proof of an intentional and purposeful or irresponsible act (paragraphs 28, 31 and 34).

In particular, Mendonca JA also stated: “It is not the law that once inequality of treatment is found that the onus shifts on the State to provide some explanation for it” (at paragraph 34), and that “the onus could not be shifted where the presumption is subsumed on mere evidence of inequality.

What has to be established is an intentional and purposeful act of unequal treatment which in turn connotes mala fides” (at paragraph 36). And further, despite the invitation of the Privy Council in Bhagwandeen, the judge stated: “I do not think it appropriate to express any view on whether the law as it now stands needs to be altered and in what way” (at paragraph 38).

Warner JA was, in my opinion, prepared to go further than Mendonca JA and to: (i) acknowledge the invitation of the Privy Council (paragraph 23); (ii) accept that “the dicta in KC Confectionary may be revisited legitimately” (paragraph 28); and (iii) find a breach of the equality provisions (paragraph 35) even though mala fides had not been established (paragraphs 19 and 35) and where there could be no case that the claimants had been “deliberately selected for unfair treatment.” Warner JA then proceeded, under the heading “The case for inequality,” to state her opinion as follows: “The entire foundation of the appellants’ case has not however, in my view, been destroyed. The relevant authority had established a procedure in accordance with powers vested in it under the Ordinance.

While I would not presume to hold that the minister is not empowered to request that an application is expedited, the relevant authority had dealt with the comparator (Citadel) an entity similar circumstanced, with expedition, but had not applied the same standard to the appellants’ application.

It is no excuse that the application “may have been lost,” or that there was a shift in the ministry’s location.” This type of situation, it appears to me, has always come within the sweep of Section 4(d), as Persaud JA has demonstrated.

Accordingly, there will be no departure from the rule of stare decisis when I find a breach of the equality provision on this limb.

It would therefore appear that in circumstances of proof only of differential treatment, with no mala fides or any element of deliberateness and with an unsatisfactory justification by the State, Warner JA found a breach of the 4(d) equality provision. If this is a correct analysis of the judge’s reasoning, then Warner JA, without being explicit, applied a causative test to a claim of inequality of treatment based on administrative action.

However, Hamel-Smith JA was explicit in his openness to (if not acceptance of) the causative test. He accepted that proof of mala fides was not always necessary and acknowledged that discrimination could be established without an intention to discriminate (paragraph 19). In the words of the judge (at paragraph 21): “It is only reasonable to conclude that his action was the deliberate and intentional exercise of a power (or discretion for that matter), the exercise of which was arbitrary and unreasonable in the circumstances of this appeal. Hence, it was contrary to law and resulted in unequal treatment. Whether such action connotes mala fides is another issue.” And, in specific reference to the reasoning of Mendonca JA, Hamel-Smith JA had this to say (at paragraphs 23-29): “Mendonca JA was of the view that the facts in the instant appeal did not fall within the category where mala fides need not be alleged. He found however, given the scarce resource available to applicants, that the deliberate selection of Citadel by the minster for a grant of a licence above all other applicants, including the appellants who were all similarly circumstanced, while there was in place (i) a suspension of recommending licences and (ii) a clear stated policy of considering applications in order of submission, was an arbitrary and/or unreasonable exercise of his power resulting in unequal treatment. That action was sufficient to displace the presumption and it required an explanation from the minister. I agree with Mendonca JA but while his decision maintains the need to displace the presumption with proof of mala fides I am inclined to accept that there was no such onus on the appellants.

Their Lordships in Bhagwandeen suggested that there may have been some confusion between the two concepts viz, the presumption of regularity and the necessity for proof of deliberate intention to discriminate.

The observation is well placed because inherent in the presumption is the absence of evidence, one way or the other.

Once cogent evidence of discrimination is placed before the court, whether or not the presumption operates in the official’s favour, the onus shifts to the official to show that his action was justified or reasonable.

The presumption in those circumstances would have been of little or no use to the official.

The requirement that an applicant prove mala fides as a prerequisite may be to place a fetter on the right itself. Discrimination can be practised, and usually is, by stealth.

That feature makes it difficult to discern particularly when the applicants is on the outside depending, so to speak, on the good faith and integrity of the decider on the inside. I agree with Persaud JA that if there is an allegation of mala fides then the applicant must prove it in order to succeed. But there will be cases where it is not alleged and need not be proved. In either instance the presumption is of little use and to insist that it be displaced with proof of mala fides may be lifting the bar to an extraordinary and unnecessary height.

It may be that a different approach should be adopted. The right to equal treatment in the Mauritius Constitution is different from section 4(d) in that the protection there is entrenched on specific grounds but the test to determine whether there has been an infringement of the right is an attractive and compelling one.

In Jaulin v The Director of Public Prosecutions and the Hon Attorney General [1976] MR 96, the Supreme Court ruled that: “There is inherent in the term discriminate and its derivatives as used in the Constitution a notion of bias and hardship which is not present in every differentiation and classification . . . The difference of treatment will be justified when it pursues a legitimate aim and there exists at the same time a reasonable relationship of proportionality between the means employed and the aim sought to be realised.” This test was adopted by the Privy Council in Bishop of Roman Catholic Diocese of Port Louis and Ors v Suttyhudeo Tengur & Ors. (Privy Council Appeal No 21 of 2003 unreported) and formulated in this way: “Where apparently discriminatory treatment is shown, it is for the alleged discrimination to justify it as having a legitimate aim and as having a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

“The test does not require proof of mala fides and ensures that a prima facie violation of the right is not lightly sanctioned. It places the onus on the official to justify the breach and eliminates any spurious or impractical aims. It may be that he would have to show some pressing need, social or otherwise, to justify the breach but one would think that the more substantial the interference the greater the justification will have to be before the court is satisfied that the decision is reasonable.” I prefer and endorse the approach and reasoning of Hamel-Smith JA. Clearly this approach to administrative action is consistent with the approach I have outlined above with respect to legislation. It is an approach that acknowledges effects, maintains a presumption of regularity and affords an opportunity to justify seemingly discriminatory action. It is difficult to flaw such a fair and even handed approach to the analysis of equality claims. This is especially so given the disproportionality of resources and access to information between the ordinary claimant and the State.

In this court’s opinion, given the requirement that the 1976 Constitution be interpreted as a living instrument and given the review by the Court of Appeal after Bhagwandeen of the requirements for proof of discrimination by administrative action, the “majority” view of Warner JA and Hamel-Smith JA is to be considered most persuasive (and binding) on the lower courts in Trinidad and Tobago. No doubt the Privy Council will soon settle this vexing issue once and for all.

EQUALITY AS FAIRNESS John Rawls (A Theory of Justice; 1999 ed) is famous for his theory of justice as fairness. Atheory which is premised on two principles: “(i) Each persons should have an equal right to the most extensive basic liberties as can be guaranteed and as are compatible with similar liberties for all others.

(ii) Inequalities in society are acceptable provided they are arranged so that the inequalities operate to the advantage of all (especially the less fortunate) and are attached to positions and offices that all have an equal opportunity to attain.” Without getting into the merits of Rawls’ contention, it is my opinion that quintessentially equality is to be understood, interpreted and applied as fairness.

Aristotle is credited with the formulation: “equality consists of treating equals equally and unequals unequally.” It is the principle of fairness that demands that equals should be treated alike. It is consequently unfair to treat equals differently, unless some objectively justifiable reasons exist for so doing, in which event there is no unfairness. Thus, discrimination and inequality only have real meaning in the context of fairness.

In terms of the general prohibition against discrimination in section 4, in my opinion, the 1976 Constitution intended to legislate that it is fundamentally unfair to effect different treatment on the basis of race, origin, colour, religion or sex. This is because these aspects of personhood and citizenship are fundamental to one’s inherent dignity, worth and identity and to the free and peaceful co-existence of mutually respected citizens in a civil society — who expect to be treated fairly.

Discrimination may therefore be described as a distinction, whether intentional or not, but based on grounds relating to personal characteristics, which has the effect of unfairly imposing burdens, obligations, or disadvantages not imposed on others in a comparable position, or which unfairly withholds or limits access to opportunities, benefits or advantages available to others in a comparable position in the society.

Thus, the focus is not only on the alleged ground of discrimination (to ascertain whether or not it is an enumerated ground), but also on the alleged effects of the challenged distinction. Further, since it is accepted that not all distinctions and differentiations are necessarily discriminatory and unfair, a determination must be made as to whether there is inequality or discrimination that is justiciable under the 1976 Constitution.

In regard to alleged discrimination based on personal characteristics, in my opinion, one must look not only at the challenged law and the alleged effect, but very importantly also at the larger historical, cultural, sociological, political and legal context. An examination of this larger context assists a court in determining whether differential treatment results in inequality, discrimination or unfairness. Indeed, a finding of discrimination will be unlikely unless there is also some significant and unjustifiable disadvantage and unfairness.

In my opinion, it is clear and unquestionable that a law may be discriminatory even if it is not directly or expressly so. That is, a law may be discriminatory by reason of its adverse effects: “adverse effects discrimination.” Whereas direct discrimination involves a law which plainly, on its face, discriminates on the basis of one or more of the prohibited grounds in the general non-discrimination prohibition in section 4 of the 1976 Constitution, adverse effects discrimination occurs when a law, though on its face appears neutral, has a disproportionate and unjustified negative impact on a person or group because of the personal characteristics if that person or group (for example, because of their race, origin, colour, religion or sex).

What is therefore required to establish adverse effects discrimination, is that the alleged differentiation or distinction has the effect of unfairly imposing some burden, obligation or disadvantage which is not imposed on others in a comparable position, or of unfairly withholding, limiting, inhibiting or restricting access to opportunities, benefits or advantages which are available to others in a comparable position.

That is, adverse effects discrimination occurs where it has been demonstrated that without any objective and reasonable justification or accommodation, there is a failure to ensure that there is equal benefit for all and/or a failure to take steps to remove unequal disadvantages for some — amongst those who are all equals. This is so because such circumstances are fundamentally unfair.

RELIGIOUS BELIEF AND OBSERVANCE, SECTION 4(h), 1976 CONSTITUTION Section 4(h) of the 1976 Constitution states: “4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely: (h) freedom of conscience and religious belief and observance;” The Applicants have argued for a breach of their section 4(h) rights on two bases. First, that Trinidad and Tobago is a secular state and like the United States of America, any entanglement by the State in matters of religion is unconstitutional.

Second, that the Constitution recognises a need for religious equality and provides for the equal treatment and respect for all religions, which is a reading of the 1976 Constitution that conforms with its Preamble.

On the first submission, this court is of the opinion that the 1976 Constitution is unnaturally different from its USA equivalent. In Trinidad and Tobago, there is no establishment clause (or its equivalent) as appears in the First Amendment to the United States Constitution (or any incorporating provision as contained in the Fourteenth Amendment to the US Constitution).

Thus, neither the Lemon Test (Lemon v Kurtzman 403 US 602 at pages 612-13) nor its modification as the Endorsement Test (see, American Civil Liberties Union of Kentucky v Kentucky, 354 E3d 438 at 446) have any direct relevance to the jurisprudence of Trinidad and Tobago.

In the USA, State practice does not violate the First and Fourteenth Amendments to the US Constitution if: (i) it has a secular purpose; (ii) its primary or principal effect neither advances nor inhibits religion; and (iii) it does not foster excessive entanglement with religion (the Lemon criteria for analysis).

Under the “Endorsement Test,” the “entanglement” prong is dispensed with and the court combining an objective version of the “purpose” prong with the “effect” prong asks whether a reasonable observer would believe that a particular State action constitutes an endorsement (or disapproval) of religion by the government — see, Modrorich v Pennsylvania, 385 E 3d 397 (2004.) In determining whether State action impermissibly endorses religion, the forensic exercise for the court is to determine whether an objective observer, acquainted with the impugned subject, its history and implementation, would view it as State endorsement of religion (American Civil Liberties case supra, at 446 and 458).

Thus, content, context and history are relevant in assessing purpose/intention and effect/endorsement.

The considerable time spent by attorneys on the American position has not all been wasted. From the American jurisprudence, it is clear that their way of dealing with their country’s history and religious diversity, was to legislate constitutionally so as to provide that “government may not promote or affiliate itself with any religious doctrine or organisation, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution and may not involve itself too deeply in such an institution’s affairs” (Glassroth v Moore, Chief Justice of Alabama 335 E3d 1282 at 1293). This position was achieved through specific amendments to the US Constitution. Apart from section 4(h) and the general non-discrimination prohibition (which includes religion), no such provisions exist in the 1976 Constitution. None should be read in or assumed.

Noteworthy however, is the American forensic approach to discovering whether or not there has been association with religion. Here purpose and effect are both considered in the light of content, context and history. In this regard the approach is similar to that taken in the common law jurisdictions to interpreting and applying the equality provisions.

In Trinidad and Tobago, whether or not it is a secular State, there is no constitutional prohibition on State promotion, affiliation or association with religion. Indeed, the very first provision of the Preamble of the Constitution states: “Whereas the People of Trinidad and Tobago have affirmed that the Nation of Trinidad and Tobago is founded upon principles that acknowledge the supremacy of God, faith in fundamental human rights and freedoms - (Emphasis mine).” Though not a theocratic State, Trinidad and Tobago constitutionally affirms the nation’s acknowledgment of the supremacy of God, clearly over and above even the Constitution itself.

However, in my opinion, the way the 1976 Constitution regulates State involvement and association in religion is through the general prohibition of non-discrimination based on religion and by the guarantee of freedom of conscience and religious belief and observance (4(h)). These two provisions introduce the idea of equality and fairness into the State’s involvement and association with religion. When one considers also the general equality sections (4(b) and (d)), then it becomes clear that any State involvement or association with religion must be impartial, fair, non-preferential and based on principles of equality. Such a reading of the 1976 Constitution treats it as a whole living document and honours the ideals in the Preamble for respect for “the dignity of the human person and the equal and inalienable rights which all members of the human family” are entitled to.

Constitutionally, the idea of the supremacy of God, is not the supremacy of any one person’s or group’s God over and above another’s, but the equal supremacy of all persons’ understandings of God.

In Trinidad and Tobago the only local case which was cited that had any real relevance to the substantive meaning and interpretation to be given to section 4(h) was Belafonte v The Attorney General Civil Appeal No 24 of 2004.

In the Court of Appeal the court stated that the trial judge came to certain findings of fact (paragraph six).

Though this was not itself clear from the judge’s reasons, the Court of Appeal nevertheless determined that: “In view of the undisputed breach of the appellant’s constitutional rights . . . the case should be remitted to the judge below to enter judgment . . . in the following terms: (ii) A declaration that the Appellant’s right to freedom of conscience and religious belief and observance was infringed” (paragraph 26). Unfortunately, neither the trial judge nor the Court of Appeal gave any guidance as to how and when the rights at 4(h) arose and were violated; and in particular as to what constituted constitutionally guaranteed “conscience,” “religious belief” and “religious observance.” In Belafonte it appears that the evidence was simply that Belafonte “had his Rastafarian ‘dreadlocks’ shorn off against his will and was subjected to a meat diet” and was “deprived of his vegetarian diet” (paragraphs five, six (iv), 21).

In my opinion section 4(h) can be interpreted as follows. First, it guarantees “freedom” to be and to act in accordance with conscience and religion. Freedom is based on dignity and equal and inalienable rights (paragraph one of the Preamble).

Freedom is present where there is an absence of compulsion or restraint. And both coercion and constraint can be effected by direct and indirect means.

Freedom in its negative sense is the absence of coercion and constraint and in its positive sense, is the right to hold and manifest beliefs and practices.

Thus, the essence of the concept of freedom of religion is the inalienable right to hold such religious beliefs as an individual chooses, and to embody and declare them openly and freely.

Freedom of religious observance is equally the inalienable right to manifest, express and participate in such rituals, practices and activities which are a part of and consistent with avowed religious beliefs. No constitutional freedom is absolute and even the freedom of religious belief and observance is subject to such limitations as are legitimate and necessary to protect the democratic way of life and having regard to the fundamental rights and freedoms of all citizens and their equal and inalienable right to enjoy same.

Included among legitimate limitations could be such limitations as are necessary to protect CROSS from Page 14C the security of the State, public safety, order and well-being (health).

Such an interpretation is not inconsistent with Trinidad and Tobago’s international obligations (see Article 18 of the ICCPR).

However, I do not agree with the Applicants that the above limitations are exhaustive of those that are constitutionally permissible.

Because the freedom of religions belief and observance is characteristically individualistic, the “subjective objectivity” test mooted above is in this court’s opinion the forensic exercise to be undertaken in order to determine whether the belief or observance is legitimately and constitutionally “religious.” Thus, in ascertaining whether a claimed belief or observance is “religious,” the court is obliged to inquire into the doctrine or practice and to determine whether the individual demonstrates sincerity in the belief or in the practice (ie simply whether the belief or practice is subscribed to honestly or whether it is contrived or fictitious).

Further, both the belief and practice to qualify as “religious” should be consistent with a person’s perceptions of self, humankind, nature and (where relevant) with a higher, greater or different order of being (one’s cosmology).

And, in assessing the above, this exercise is to be done irrespective of whether a particular belief or practice conforms with and/or is prescribed by “official” religious dogma or tradition or the opinions of religious officials.

In my opinion, such an understanding of the section 4(h) guarantee is consistent with a personal and subjective understanding of the stated freedom and its linkage to “conscience.” Clearly, apart from trivial or insubstantial or frivolous claims (which suggests that the impediment to the freedom must be integral or essential or fundamental), the 1976 Constitution protects the actual or reasonably anticipated (section 14) infringement of the religious beliefs and observances of individuals and groups who can qualify for protection, whether such an infringement is direct, indirect, intentional, unintentional, foreseeable or unforeseeable (by the alleged offender).

One can therefore suggest a three-step process with respect to this freedom: (i) has the claimant demonstrated an honest (sincere) conviction in the practice or belief that has a legitimate nexus with religion; (ii) if so, is the alleged abridgement trivial, insubstantial or frivolous; (iii) if not, is there some legitimate, objectively purposeful and reasonable justification for the abridgement of the freedom.

This third step is introduced, because similar to the equality provisions; there can be no absolute freedom of religious belief and observance and an assessment of the intention and purpose of the challenged law or action ought to be considered before declaring it unconstitutional.

Further, once purpose has been evaluated as unconstitutional, a neutral effect cannot save the breach. However, even if purpose is valid, effect may constitute a breach of the freedom.