TT offers freedom of religion

FINALLY, as stated above, there is clearly some overlap and interconnection between the general prohibition against non-discrimination based on religion in section 4 and the 4(h) guarantee and also the 4(b) and (d) equality provisions. In Trinidad and Tobago not only is there guaranteed freedom of religious belief and observance, but there is a prohibition of discrimination based on religion and also the entitlement to equality (in both its positive and negative senses) and equal treatment from the law and from administrative actions. A single case may involve an inequality case, as well as a breach of the freedom of religion case, as well as a discrimination on the basis of religion case.

SYNTHESIS/APPLICATION

On the evidence, it is clear that the State has had knowledge (direct and indirect), as well as advice, that the Trinity Cross is a controversial national award and that that controversy arises from its Christian associations.

As I have already stated, in my opinion, considering the design, motifs, symbols and words which together constitute the Trinity Cross when reasonably and objectively interpreted according to content, context and history, as is relevant to Trinidad and Tobago, it is quite clear that the words “Trinity” and “Cross” can at present be associated with the Blessed Trinity and the cross of the Christian religion and that the linking of those words reinforces that association.

Further, I accept without reservation that given the historical, sociological and religious experience of Hindus and Muslims in Trinidad and Tobago (beginning with the colonial indentured experience) and given the religious beliefs and observances of Hindus and Muslims, it is reasonable, rational and legitimate for both to perceive the Trinity Cross as having unequivocal Christian associations and for both to have an aversion to the Trinity Cross. And as such, it is objectively reasonable, rational and legitimate for Hindus and Muslims in Trinidad and Tobago not to participate in the process of nominating persons or being nominated for or consenting to accept or receive or wear the Trinity Cross.

All of these Applicants have demonstrated a legitimate interest in this constitutional issue. They have all met the section 14(1) threshold requirement of having been, or are being or are likely to be affected by the alleged contraventions of section 4 in relation to them. All of the Applicants satisfy the preliminary comparative condition of being similarly circumstanced in relation to their challenge and the subject award (with respect to their equality and non-discriminative claims). They are all members of the class of citizens of Trinidad and Tobago who can nominate citizens for, be nominated for, consent to and accept and wear the Trinity Cross and join the Order of the Trinity.

All of the Applicants have established, at least prima facie, that, though the purpose of the Trinity Cross is religiously neutral in that it is an honour and award for distinguished and outstanding service to Trinidad and Tobago, its effects are indirectly discriminatory, in that it represents and constitutes preferential treatment, approval and acceptance of overt, exclusive and historically marginalising Christian symbolism and associations, in a multi-religious, multi-cultural State with significant proportions of Hindus and Muslims, which has been the case since at least Independence.

To this extent the effects of the Trinity Cross, as the highest single award in Trinidad and Tobago for distinguished and outstanding service, are to impose a disadvantage upon a significant proportion of the population and upon sincere Hindus and Muslims, which are not equally imposed upon an equally significant proportion of the population (Christians), who have historically also enjoyed in relation to Hindus and Muslims general preferential treatment in Trinidad and Tobago. The existence of the Trinity Cross award also has the continuing effects of denying, limiting, restricting or inhibiting participation by sincere Hindus and Muslims in the processes linked to the award of the Trinity Cross and access to the advantages, benefits and opportunities available to other equally comparable members of the society who can participate in the processes linked to and the advantages, benefits and opportunities derived from the nomination for and receipt of the award of the Trinity Cross and membership to the Order of the Trinity.

In my opinion, this is a case of indirect adverse effects of discrimination. The differentiating and distinctive condition in the Trinity Cross is its overt Christian associations which identities it with a religious subset of the society (Christians) and so differentiates and distinguishes it comparatively with Hindu and Muslim religious symbols, associations and beliefs. The Trinity Cross thus imposes, because of the special characteristics of Hindus and Muslims, restrictive and inhibiting conditions which are not equally imposed on, at least, the Christian members of the society. (This indirect adverse effects discrimination can also quite obviously impact negatively on all non Christians and on atheists).

The Applicants have also shown an honest conviction in their religious beliefs, observances and experiences, which are fundamental, essential and integral to their religions.

The evidential onus therefore shifts upon the Respondent to show whether some reasonable steps have been taken to accommodate Hindus or Muslims or to show some legitimate, objectively purposeful and reasonable justification that could offset the discriminatory effects of the award.

Is there any legitimate aim and sufficiently objective and reasonable basis for the naming and design of the Trinity Cross as the Nation’s highest award?

This question is to be distinguished from the inquiry whether there is a legitimate aim and objective and reasonable basis for creating the award per se: that is, for honouring distinguished and outstanding service to Trinidad and Tobago. Such an aim, purpose and intention is unquestionably legitimate and reasonable.

Ostensibly the justification for the name and design of the Trinity Cross as such is that it is: “Based on the Trinity Hills.” This is the only official explanation given for the choices of design, motifs and words used in the award. As we have seen the “Trinity

Hills” have a special signification and symbolism in the history of Trinidad and Tobago.

The “Trinity Hills” do not simply describe a geological formation, but predominantly

identify and are associated with Columbus’ first sighting of Trinidad in 1498; when upon seeing “a range of three mountains...recited the Salve Regina and gave thanks to the Lord” and remembering his vow to name the first land he saw after the Roman Catholic faith cried out “La Trinidad.”

Though the decision to name and design the Trinity Cross based on the Trinity Hills may be considered by some an objective and reasonable basis for doing so, in my opinion, in the context of:

(i) The overall religious, cultural and sociological history of Trinidad and Tobago;

(ii) The experiences of the Indian indentured Hindus and Muslims and their successors;

(iii) The proportions of Hindus and Muslims to the total population;

(iv) the above stated legitimate attitude of Hindus and Muslims to the Christian symbolism and associations inherent in the Trinity Cross; and

(v) the fact that the award was only introduced after Independence, the above stated basis is an inadequate justification. That this basis is an insufficient justification in the circumstances of this case is reinforced by the general and overriding constitutional prohibition against discrimination on the basis of religion.

It is relevant to note that the more substantial the interference with a protected fundamental right the greater must be the justification for any limitation or inhibition.

Furthermore, there must also be proportionality between the means employed (the Trinity Cross) and the aim sought to be realised (to give effect to the intention to honour citizens for distinguished and outstanding service).

In my opinion, given the indirect adverse effects discrimination caused by the design, motifs and words of the Trinity Cross and the likely extent of those effects, combined with the high degree of protection afforded to non discrimination on the basis of religion, there is a disproportionate adverse effect caused by the Trinity Cross that negates any justification which is based on the Trinity Hills. In my opinion, in an assessment such as is demanded in a case like this, a court is required to take a practical, realistic and pragmatic approach.

Further, no evidence of accommodation has been brought to the attention of this court.

The Respondent’s position is primarily that as a question of fact the Trinity Cross is not and cannot be viewed as overtly Christian in content, context or history and has no exclusive unequivocal Christian motifs or associations. This justification is maintained in the face of the history of the controversy outlined above and in light of the Cabinet appointed de la Bastide Committee (and Spinks) Report and Recommendations on the National Awards and the Trinity Cross.

The second aspect of “justification,” which is really more a matter of law than of fact, is that the Trinity Cross does not constitute an award that is indirectly discriminatory or in breach of any 4(b), (d) or (h) rights and freedoms. This has been dealt with above.

The final “justification” is that the Trinity Cross is by reason of section 6(1) of the 1976
Constitution, the savings clause, an existing law which is protected from being invalidated on the basis of any violations of sections 4 and 5 of the 1976 Constitution.

In my opinion, leaving aside the savings clause argument for the moment, the Respondent has shown no accommodation whatsoever to ameliorate the indirect adverse discriminating effects of the award of the Trinity Cross on the Applicants as Hindus and Muslims and as corporate citizens representing Hindus and Muslims in Trinidad and Tobago. And, the Respondent has also not shown any legitimate, objectively purposeful or reasonable (or proportionate) justification for the indirect adverse discriminatory effects of the award of the Trinity Cross on the Applicants.

In my opinion, the Applicants would be entitled to a finding by this court that their constitutionally guaranteed rights to nondiscrimination on the basis of religion and to equality and equal treatment by law and by administrative action have been breached and continue to be breached by the creation and continuation of the award of the Trinity Cross.

As regards the section 4(h) freedom of religious belief and observance, I am not of the opinion that any isolated breach of that freedom has occurred in this case even though the effect of the Trinity Cross may be seen as an indirect curtailment of the enjoyment of that freedom. In my opinion, the clearer infringement is through the conjoint effect of section 4(h) and 4(b) and (d) — the equality provisions; and it is here that I would prefer to locate any breach of the section 4 rights and freedoms of the Applicants in this case.

As the Nation’s highest national award the Trinity Cross has been in existence since 1969, that is, for some 36 years. That is a relatively short period of time.

Its creation came at a time after Independence when Trinidad and Tobago was already an established multi-religious society with a written Constitution in place (the 1962 Constitution) guaranteeing the same fundamental rights and freedoms that are under consideration in this case. Were it not for the arguments that will be dealt with shortly under the savings of existing law submission of the Respondent, this court would have given serious consideration to the section 14(2) constitutional mandate to grant relief as is appropriate to enforce, secure and protect the rights and freedoms of the Applicants that have been abridged by the creation and continued existence of the award of the Trinity Cross.

EXISTING LAW, SECTION 6(1), 1976 CONSTITUTION The Respondent argued that the Order of the Trinity, which provides for the Trinity Cross is existing law for the purposes of section 6(1)(a) and as defined at subsection 6(3) of the 1976 Constitution.

“Existing law” is defined at section 6(3) as “a law that had effect as part of the law of Trinidad and Tobago immediately before the commencement of this Constitution,” that is, before August 1, 1976.

“Law” is defined in section 3 of the 1976 Constitution as follows: “Law” includes any enactment, and any Act or statutory instrument of the United Kingdom that before the commencement of this Constitution had effect as part of the law of Trinidad and Tobago, having the force of law and any unwritten rule of law.”

Section 6(1) of the 1976 Constitution provides that: “Nothing in sections 4 and 5 shall invalidate (a) an existing law.”

The Respondent’s argument is that the Letters Patent establishing the Order of the Trinity were made by Her Majesty in 1969 under and by virtue of section 56 of the 1962 Constitution (which vested the executive authority of Trinidad and Tobago in Her Majesty, and which included the Royal Prerogative). And, that Letters Patent issued under the Royal Prerogative, in the form of the “Letters Patent establishing the Order of the Trinity,” are law and have the force of law (as opposed to being an executive or administrative instruction as argued by the Applicants.)

Support for this latter contention of the Respondent is found in an article written by Roy Jordan, entitled “A Rare Form of Law Making:

Legislation made outside of Parliament” (written from an Australian colonial/commonwealth perspective). In that article Letters Patent issued under the Royal Prerogative are described as: “an ancient form of law making inherited from England and are instruments made by the monarch without reference to Parliament under the royal prerogative which is that power of the Crown still existing and

not superseded by parliamentary legislation.” Jordan gives as an example the “Order of Australia Constitution and Ordinances,” which he explains as follows:

“Legislation establishing the Order of Australia was made by the Queen under Letters Patent in 1975 and published in the Australian Government Gazette dated February 17 1975 (no S 28). The Constitution of the Order may be found in the schedule to the Letters while section 30 provides for ordinances to be made.”

The parallels in the above Letters Patent creating the Order of Australia to the Letters Patent creating the Order of the Trinity are obvious. The rationale and legitimacy for the exercise of this prerogative power is, as Jordan explains, in the accepted tradition that the Sovereign was considered to be “the fountain of all honour and dignity” and traditionally enjoyed the sole right of conferring all titles of honour, dignities and precedence. As is explained by David Clark in Principles of Australian Public Law (2003), at paragraphs 8:23 and 8:24, the royal prerogative may be defined today as: “the residue of original royal legal power not based on statute.”

Its source is considered technically to be the common law and it is not to be exercised arbitrarily, but “per legum” (by the law) and “sub modo legis” (under the law). As such, Clark speaks of offices “created by a prerogative legislation called the Letters Patent.”

There is no question of the legitimacy of the exercise of the prerogative power by Her Majesty in 1969 in issuing Letters Patent to create the Order of the Trinity. What is contended by the Applicants is that that action was (an executive/administrative instruction and not a legislative act which carries the force of law.

I disagree with the Applicants on this issue. In my opinion, as Lord Diplock pointed out in Thornhill v A G (1976) 31 WIR 498 at 513 (in relation to sections 1, 2 and 3 of the 1962 Constitution, which for the purposes of this issue are of similar effect of sections 4, 5 and 6 of the 1976 Constitution), “law” as defined in section 3 of the 1976 Constitution includes any unwritten law and therefore includes rules “of which the only legal source is the common law itself.”

And, as Lord Hoffman explained in relation to section 6(1) of the 1976 Constitution (in
Matthew v The State Privy Council Appeal No 12 of 2004, at paragraphs 1 and 2), albeit
in relation to the mandatory death penalty: Section (6)1 provides that “nothing in sections 4 and 5 shall invalidate...an existing law.”

The law decreeing the mandatory death penalty was an existing law at the time the Constitution came into force and therefore, whether or not it is an infringement of the right to life or a cruel and unusual punishment, it cannot be invalidated for inconsistency with sections 4 and 5.

It follows that despite section 2, it remains valid.

The language and purpose of section 6(1) are so clear that whatever may be their Lordships’ views about the morality or efficacy of the death penalty, they are bound as a court of law to give effect to it.

In my opinion, there can be little doubt that the Letters Patent establishing the Order of the Trinity are “existing law” defined by section 6(3) of the 1976 Constitution (and are “law” as defined by section 3 thereof).

Not only is this view supported by the official publication of the Letters Patent and the annotations accompanying it in the Constitution of the Republic of Trinidad and Tobago Act, Chapter 1:01 which states that the Letters Patent are deemed to be issued under section 6 of the Act (which provides for the exercise of a prerogative under an “existing law”); but the actual form, language and content of the Letters Patent suggest an intention to legislate and to create rules which have the force of law. As such, the exercise of the Royal Prerogative under section 56 of the 1962 Constitution was a legitimate exercise of executive power, which included the power to create prerogative legislation for the creation of rules with the force of law for conferment of Honours.

In my opinion therefore, by reason of section 6(1) of the 1976 Constitution, the Letters
Patent were an existing law at the time the 1976 Constitution came into force; and therefore, even though the Presidential confirmation of and the continuing existence and awarding of the Trinity Cross has been and is likely to continue to be in breach of the Applicant’s rights and freedom guaranteed by section 4 of the Constitution, neither the Letters Patent nor the Trinity Cross created and administered by and through it can be invalidated for inconsistency with the provisions of section 4.

This result follows if one is committed to construe and apply the 1976 Constitution as the
“supreme law” of Trinidad and Tobago, as a court is constitutionally mandated to do.

This court is therefore duty bound to apply section 6(1)(a) of the Constitution as the majority of the Privy Council in Matthews has decreed, whatever this court’s view may be about the legitimate or ethical underpinnings of the continued existence of the Trinity Cross as this Nation’s highest honorary award.

COSTS In my opinion, this case raised serious issues of great national interest.

The Applicants have successfully argued the discrimination and inequality issues, though they have failed on the secular state, non-entanglement issues and ultimately on the savings of existing law arguments.

In the exercise of my discretion and given the public interest in and the sharing of success
on the issues raised and argued, this court will order that each party is to bear its own costs.

DISPOSITION

I have come to the conclusion that the creation and continued existence of the Trinity
Cross, given the historical, religious and sociological context of Trinidad and Tobago,
combined with the experiences, as well as the religious beliefs of Hindus and Muslims,
amount to indirect adverse effects discrimination against Hindus and Muslims.

However, by reason of the savings of existing law provision in the 1976 Constitution, the
Letters Patent establishing the Constitution of the Order of the Trinity and the Trinity

Cross, are deemed to be existing law and therefore cannot be invalidated for inconsistency with the section 4 rights and freedoms under the 1976 Constitution.

In the circumstances, the Applicants’ action is dismissed.

Each party is to bear its own costs.

I wish to thank all counsel involved their research and presentations and for their assistance to this court.

Dated this 26th day of May 2006.

P JAMADAR
Judge