Court strikes down Equal Opportunity Act

In delivering the judgment, Justice of Appeal Ivor Archie said, "I would like to emphasise that it can hardly be conducive to good governance and proper public administration for the Executive to do nothing about a statute which it views as unconstitutional. Efforts should be made to have it amended or repealed."

The court, comprising Chief Justice Sat Sharma and Justices Archie and Alan Mendonca, made the observation while dismissing a constitutional motion brought by Kenneth Suratt and others, calling on the Government to appoint the equal opportunity commission and tribunal as is required in the EOA. However, the court made no order for costs.

The court also found that the EOA violates the doctrine of separation of powers and contains provisions that are inconsistent with the enjoyment of certain fundamental rights and freedoms guaranteed by the Constitution. "Since the EOA was not passed with a special majority, all of those provisions must be struck down. In the particular circumstances of this case, the Executive ought either to have sought the court’s guidance at a much earlier stage or sought to have Parliament repeat the EOA — that would have been the proper course."

Arguing the motion for the appellants were Ramesh Lawrence Maharaj SC, Rikki Harnanan and Darrell Allahar, while Russell Martineau SC and Deborah Peake represented the Attorney General.

The court said that none of the other arms of the State may infringe upon the law-making (and repealing) powers of the Parliament. The Constitution has reserved to the courts, the powers to pronounce upon constitutionality of those laws. In doing so the courts are not exercising a legislative function at all. They are merely declaring that state of affairs which already exists. In other words, a law does not become unconstitutional when and because the courts say so. It is unconstitutional because and to the extent that it is inconsistent with the Constitution." That is the essential and all-important difference between the notions of ‘parliamentary supremacy’ and ‘constitutional supremacy’."

In delivering the 26-page judgment, Archie noted that the court ought not to be deprived of one of its critical functions, which is to be the guardian of the Constitution in preference to being the guardian of subordinate law, however flawed it may be.

He argued that the easy response is that since the Constitution is the supreme law, then the duty to uphold the Constitution trumps the duty to obey any other law, which is necessarily subordinate.