'The Order of TT’

OF THE six issues considered by the Committee, the third was: “What should be the National Awards? In particular ought the Trinity Cross to be retained and, if not, what should replace it? Should any other changes be made in the National Awards?”

By its report (dated the 6th August 1997) the Committee, in respect of the third issue, stated as follows:

Regarding the name of the awards, members considered the views that have been expressed by members of the public over a period of time. The Trinity Cross, the country’s highest award, has attracted negative criticism particularly on account of the word “Cross” which is perceived as a Christian symbol. It was put to the meeting that the cross is not exclusively a Christian symbol so that argument for change is based on a false premise. The point was made also that “Trinity” may also be regarded as a Christian reference but that if one followed the argument through to its logical conclusion, “Trinidad,” as part of the country’s name, would also have to be changed.

It was suggested that the “Trinity Cross” as the nation’s highest award should be changed to “The Order of Trinidad and Tobago” thereby embracing the entire country. The majority was in favour of changing the name of the award. However, the Committee was evenly divided on the choice of name for the award ie as between “Order of the Trinity” on the one hand and “Order of Trinidad and Tobago” on the other. Those supporting the former made the point that it would serve to maintain a link with the award under its original designation.

The Chairman informed the Committee that SPINK of London, dealers in Fine Art and Royal Medallists, had proposed to His Excellency the President (in 1995) certain “modifications and enhancements to better serve the diverse requirements of the Trinidad and Tobago Honours System.” SPINK indicated that the Trinidad and Tobago honours system at present did not conform to international standards. They proposed the modification of the present Order of the Trinity into three “Orders” and one “Medal” as well as a “Decoration” for gallantry.

The details are contained in the attached report of a meeting between the Secretary of the National Awards Committee and a representative of SPINK on Friday April 18, 1997.

The Committee agreed to support with some amendments the proposals by SPINK and to recommend three (3) Orders ie the Order either of Trinidad and Tobago or of the Trinity, the Order of the Chaconia and the Order of the Humming Bird, with three (3) classes in each Order, and three (3) Medals ie the Public Service Medal of Merit, the Military Medal of Merit and the Sun of Valour (for gallantry).

It is worth noting that the Committee comprised two former Chief Justices, who were Members of the Order of the Trinity and recipients of the Trinity Cross: The Honourable Mr Justice Michael de la Bastide TC (chairman) and The Honourable Sir Isaac Hyatali TC (the former being the current President of the Caribbean Court of Justice).

This Committee also “strongly” recommended that their Report be made available for public comment and the public be invited to express its views on all of the issues placed before the Committee.

In the report of the meeting between the Secretary of the National Awards Committee and a representative of SPINK (Mr Eagleton), what was proposed by SPINK was “The Order of Trinidad and Tobago” to “replace The Trinity Cross,” having taken “account of the objections raised by some concerning the ‘Order of the Trinity’ ” (referred to in a letter dated 6th December 1996 from SPINK to His Excellency the President of the Republic of Trinidad and Tobago).

In that letter Mr Eagleton on behalf of SPINK stated inter alia (the court’s emphasis).

The Order of Trinidad and Tobago might be a suitable award to replace the controversial Trinity Cross. It also comprises the protocolaire complement of insignia accorded to heads of state and international dignitaries.

Throughout, we have avoided religious symbolises, focusing on the flora and fauna of Trinidad and Tobago. The Cocorico has been overthrown by the Mott Mott bird owing to its recent unpopularity in Tobago. The two birds — the Scarlet Ibis and the Mott Mott are placed to complement one another on the badge of the Order of Trinidad and Tobago. This gives an idea of what can be done.

In fact, since 2003 there have been about sixty-seven articles written in the local daily newspapers about the Trinity Cross. A rough evaluation (based on research done by the court) suggests that of those sixty-seven articles, fifteen were in favour of retaining the Trinity Cross, twenty two were in favour of changing it and about thirty may be considered “neutral.” This information is not cited for any “evidential” purpose, but merely as anecdotal and illustrative of the local conditions, which are publicly notorious and indisputable.

The simple fact is that in Trinidad and Tobago for a very long time (relative to the creation of the award) the Trinity Cross has been a controversial award because of its indisputable Christian associations.

This court also takes judicial notice of the recent annual occurrence of a “National Awards Ceremony” put on by the Global Organisation of People of Indian Origin (GOPIO), which is an obvious counter cultural response to the failure by the State to revise the existing National Awards. Again, though not evidence before this court, this court notes that at the 2005 GOPIO National Awards Ceremony Mr Reginal Dumas (member of the above 1997 de la Bastide National Awards Committee) gave a much publicised feature address and roundly criticised the Trinity Cross because of its exclusive Christian symbolism.

This court as a determiner of fact is of the clear view that the Trinity Cross, JUDGMENT from Page 5C Trinity Cross Judgment Keep awards based on flora, fauna both in name and design, in the particular historical, sociological and religious context of Trinidad and Tobago, is reasonably, rationally and legitimately perceived by Hindus and Muslims as having unequivocal Christian religious associations. And, given the experiences and the reasonable, rational and legitimate perceptions and beliefs of Hindus and Muslims, it is reasonable, rational and legitimate for Hindus and/or Muslims in Trinidad and Tobago to not participate in the process of nominating persons or being nominated for or consenting to accept or receive or wear the Trinity Cross.

The questions in law that follow upon these findings of fact are whether in light of them there has been or is likely to be any contravention of sections 4(b), (d) and/or (h) of the 1976 Constitution in relation to any or all of the Applicants.

ENTITLEMENT TO RELIEF, 1976 CONSTITUTION The Respondent argued that the Applicants were not entitled to any relief under the 1976 Constitution, and advanced two arguments in relation to this: (i) The First and Third Named Applicants as corporate entities cannot enjoy the protection of and sue for an alleged breach of section 4(h) rights.

(ii) None of the Applicants could reasonably be considered as persons with respect to whom the provisions of section 4(b), (d) and (h) have been or are likely to be contravened (see section 14(1) of the 1976 Constitution).

In support of the first argument, the statements of Warner J A in CBS Ltd vs The Attorney General Civil Appeal No 16 of 2004 are relied on, where (at page 12, paragraph 20) the judge stated in reference to section 4(h).

It was, therefore, not open to the appellants to allege discrimination on account of the personal characteristics of the group of persons which he represented. Further it seems to me that a right such as the right to freedom of religion, must attach to a natural person.

It was therefore argued that the First and Third Applicants cannot claim any 4(h) breach as they are corporate entities and not natural persons.

In support of the second argument, it was submitted that given the purpose of the award and the history of awardees, it was clear that the Trinity Cross was/is awarded to “unique” and “distinguished” people — in the language of the award itself: “distinguished and outstanding.” In the Respondent’s contention, it cannot be reasonably suggested that any of these Applicants can realistically be considered able to qualify for the Trinity Cross. As Mr Martineau SC put it, one needs to look at the “remoteness of the opportunity... the unlikelihood that these Applicants will get it.” I agree that to satisfy section 14(1) of the 1976 Constitution, these Applicants must show that one or more of the provisions of section 4(b), (d) or (h) has been or is likely to be contravened in relation to him/it.

However, I disagree that it is clear that this cannot be demonstrated with respect to these Applicants. The advertisement soliciting nominations for all awarded states: “Over 1.3 million People And Every One Has The Chance To Be Honoured.” That advertisement also states that “Individual or organisations” may submit nominations “of a citizen” of Trinidad and Tobago for the award of the Trinity Cross. In 1987 “Pan Trinbago” (a Steelband Association) and in 1991 “The Regiment of Trinidad and Tobago Defence Force” and “The Trinidad and Tobago Police Service” were awarded the Trinity Cross. The Trinity Cross has also been awarded to scientists, lawyers, cricketers, sailors, sports persons, doctors, beauty pageant winners, writers, carnival band leaders, artists and community workers. Indeed, organisations were consulted in pursuance of the creation of the Order of the Trinity and the establishment of National Awards.

Given the purpose of the Trinity Cross, its availability to all citizens, the role that all citizens are invited to play in the process and the cross section of awardees, this court cannot say with any reasonable degree of certainty that these Applicants do not or will not qualify to be nominated for or awarded the Trinity Cross and hence to be disentitled to pursue this action by reason of the section 14(1) limitation.

In the present case, what is at stake is not only selection for the honour, but also the entitlement to participate in the process, which includes nominating citizens (natural and “corporate” persons) and being nominated. The evidence is that all of these Applicants have been approached to be nominated and have declined to be so nominated or to participate in the process of nomination because of the discrimination alleged in this case.

In this court’s opinion, each one of these Applicants is eligible for consideration and entitled to engage the process, to be nominated and/or to nominate; and in any of these situations I have no doubt on a balance of probabilities, given their history and involvement in the society, that the Applicants would be received and treated with regard and respect by the National Awards Committee and the Prime Minister.

In so far as the first argument is concerned, in addition to the above factors, the following are noteworthy.

First, the quoted statements of Warner JA are obiter dicta, as in the case under consideration the issue as one of unfair treatment and no relief was granted as a consequence of any breach of religious beliefs or observations. In my opinion, a religious organisation can subscribe to specific religious dogmas, practices and observances and therefore arguably may enjoy the protection of rights with respect to same.

Second, the First and Third Applicants are not corporate citizens of a primarily commercial character; but are corporate citizens with a religious purpose, involved in the society on the basis of certain religious principles. For example, in the case of the First Applicant, it is responsible for numerous Mandirs and schools throughout Trinidad and Tobago where Hindu religious beliefs and observances (lifestyles) are taught, shared and practiced.

Third, in Smith v LJ Williams (1980) 32 WIR 395 the Court of Appeal of Trinidad and Tobago determined that corporate citizens are entitled to claim a breach of the section 4 rights in relation to them (see pages 417 and 422-423) . . .

Smith v LJ Williams is in fact authority for the general principle that non-natural persons (including corporate entities) are entitled to the protection of such of the provisions of sections 4 and 5 of the 1976 Constitution as by their nature they are capable of enjoying — at page 523 g-h.

In this court’s opinion it is quite clear that a “person” who may apply to the High Court for section 14(1) relief includes both a “natural person (and) also non-natural persons,” such as the First and Third Applicants. The real test, it would appear, is whether it can be shown in relation to the First and Third Applicants that by their natures, they are capable of enjoying 4(h) rights and are also entitled to protection for breaches of same.

In my opinion, the answers to both of these questions are in the affirmative.

For example, in relation to the First Applicant the following is noteworthy. By Ordinance No 15 of 1932 there was “established in the Colony (of Trinidad) an Association known as the Hindu Sanatan Dharma Association of Trinidad . . . which is representative of the Hindus in the Colony.” Subsequently, by Ordinance No 19 of 1932 the Incorporation of certain persons as Trustees of The Sanatan Dharma Board of Control was effected. Then, by Ordinance No 41 of 1952 the above stated Association and Board of Control “resolved to amalgamate the two bodies into one Association to he known as and called the Sanatan Dharma Maha Sabha of Trinidad and Tobago” (the First Applicant).

Thus, the First Applicant has since 1952 been the corporate body considered by the State as “representative” of Hindus in Trinidad and Tobago. From the 2002 census data issued by the Central Statistical Office, of a population of one million two hundred and sixty-two thousand people, 22.5 percent (or 283,950 persons) are Hindu. As already stated the First Applicant the Sanatan Dharma Maha Sabha (SDMS) has many schools and colleges and temples spread throughout Trinidad and Tobago. These institutions are owned, managed and run by the SDMS and represent and meet the religious, educational, cultural and lifestyle needs and interests of Sanatanis Hindus in Trinidad and Tobago.

In my opinion, the above is clear evidence of the intent, purpose and reach of the SDMS and therefore indicative of its “nature.” In my opinion, if the State were to, say, attempt to curb or inhibit unconstitutionally the practices and observances legitimately conducted at the SDMS institutions, the SDMS would in my opinion be entitled to seek section 14(1) protection and relief.

The fact of its “non natural” personhood should not be a bar to locus standi or relief.

In my opinion, one of the clear rights that the First Applicant, the SDMS, is capable of enjoying as a religious institution is the right to nominate persons for and be nominated for the award of the Trinity Cross.

The advertisement soliciting nominations is addressed to individuals and organisations. And, already in its history at least on three occasions non-natural persons have been awarded the Trinity Cross.

Asimilar process of analysis and application shows that the Third Applicant, like the First Applicant, is also entitled to seek section 14(1) protection and relief in the circumstances of this case.

THE EQUALITY PROVISIONS, SECTION 4(b) AND (d), 1976 CONSTITUTION.

Section 4(b) and (d) 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: (b) the right of the individual to equality before the law and the protection of the law; (d) the right of the individual to equality of treatment from any public authority in the exercise of any functions.

It is clear and accepted that these fundamental rights and freedoms existed even before the creation of a written constitution or the conferring of constitutional status on them.

It is also clear and accepted that with respect to all of the numerated rights and freedoms, non-discrimination “by reason of race, origin, colour, religion or sex” is prohibited and deemed unconstitutional.

Independently of (and together with) this general prohibition, the 1976 Constitution guarantees the rights and freedoms stated in the 4(b) and (d) equality provisions.

Thus, an individual is constitutionally guaranteed equality before the law; the protection of the law; equality of treatment from any public authority in the exercise of any functions; and also the enjoyment of these without discrimination by reason of race, origin, colour, religion or sex.

Thus, because of the structural arrangement in section 4, the 4(b) and (d) guarantees are not limited by the general non-discrimination prohibition, although it also applies to them (see pages 427 and 435 f in Smith v LLWilliams).

However, for any constitutional complaint on the basis of inequality or discrimination to be justifiable it must fall within these equality provisions.

All persons are entitled to the enjoyment of these fundamental rights (see paragraph (a) of the Preamble to the 1976 Constitution; section 11(1) of the Interpretation Act; Powell v Kempton Park Racecourse Co (1899) AC 143, at 157, 185 and 192-193 and Matthew v The State (2004) UKPC33, per Lord Walker).

In Trinidad and Tobago, the interpretation and application of these equality provisions (4(b) and (d)) have been considered in the context of two categories: (i) legislation and (ii) administrative action (acts of public authorities/ officials — in the administration of the law) (see Smith v LJ Williams, at page 410 j — in relation to 4(b)).

The local courts have so far appeared to have interpreted and applied both 4(b) and (d) rights without any insistence on separate intention or purpose.

Indeed, in Smith v LJ Williams, Kelsic JA interpreted “equal treatment” in 4(d) in terms of the definition of “equal protection” in 4(b) — (at page 415g). However, as Bernard J obviously recognised in Smith v LJ Williams, 4(d) was concerned with “equality of treatment” by “public authorities” (at pages 411-414).

It would appear to me that what can be gleaned from the case law is that section 4(d) is restricted to administrative actions by public authorities in the exercise of any functions, whether that power is exercised by an authority or an individual (Smith v LJ Williams, at pages 411-412). However, the case law also suggests that common to both 4(b) and (d) is the understanding that “equality” — whether as “equal protection” or “equal treatment” means “equal treatment in similar circumstances,” so that “there should be no discrimination between one person and another if as regards the subject matter . . . their position is the same” (Smith v LJ Williams, at page 415). Or, as Cross J A Put it (in the context of 4(d)): “It is the lack of even handedness in . . . treatment . . . to which the prohibition in section 1(d) of the Constitution (1962) is directed”).

It would also appear from the case law that the equality provisions in section 4 are “among the most important of the fundamental guarantees” (Smith v LJ Williams, at page 412 g).

In this context it is therefore important to reiterate, that rights such as the rights to individual liberty, freedom of speech, freedom of religion and the equality rights, are original freedoms, which are essential conditions for life in a free, fair and peaceful society.

The historical move to written constitutions and to the statement of fundamental rights and freedoms was not primarily a creative exercise, but one of the codification of pre-existing principles, found necessary for the creation of free and peaceful societies.

Post World War II and consequent upon the creation of the United Nations, in about 1966 the International Convention of Civil and Human Rights (ICCHR) was agreed by member States of the United Nations (as were the International Convention on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Racial Discrimination). These documents were created primarily in the service of peace and freedom in and among the States of the world. Trinidad and Tobago is a signatory of the ICCHR. This is significant, because it signals the commitment of Trinidad and Tobago to the project of peace and freedom both within Trinidad and Tobago and in its international relations.

It is self evident that there can be no real and meaningful peace or freedom without equality, fairness and non-discrimination. Thus, these values are essential if a truly democratic way of life is to be achieved and their protection critical.

For these reasons, one can safely state that at the heart of the equality provisions in section 4, is the intention and purpose of eradicating unfairness and discrimination and the creation of tree freedom and peace in Trinidad and Tobago.

This intent and purpose is no doubt particularly so given the context of the multi-ethnic and multi religious society that exists in Trinidad and Tobago; a society that exists for all practical purposes as such from the time of its emergence as an independent Nation State.

Returning to the two categories in which the equality provisions operate, that is legislation and administrative action, the law in Trinidad and Tobago at present appears settled with respect to the former and quite unsettled with respect to the latter, certainly in so far as the tests for proof of same are concerned.

A. LEGISLATION In Smith v LJ Williams, Bernard J, citing with approval Basu’s Shorter Constitution of India (1976) 7th ed, Vol 1 (where Article 14 of the Indian Constitution is dealt with an in particular equality before the law and the equal protection of the law), accepted that “equal protection” may be denied either by legislation or by administrative acts. And, that “when a law is challenged as discriminatory the relevant consideration is the effect of the law and the intention of the legislature.” (Basu, at page 47). These requirements were in contradiction to the requirement for proof of “mala fides” in the administration of a particular enactment (Smith v Williams, at page 411).

Bernard J was of the view that with respect to legislation, a presumption of constitutionality existed and the burden was on the aggrieved party to show a breach of the fundamental rights provisions.

In the Court of Appeal Kelsick JA, in adopting the principles stated by Laskin J in the Supreme Court of Canada’s decision in Curr v R (1972) 26 DLR (3rd) 603 at 611 on the Canadian Bill of Rights, opined that with respect to section 4(b), in so far as legislation is concerned, “inequality of the law is not confined to discrimination on the grounds prescribed in the introductory clause: but that legislation may “none-the-less be offensive . . . if it is violative of what is specified in any of the paragraphs” (a) to (k) in section 4 (at pages 427 d and 425 b); and thereby seems to have also accepted the “effect” aspect of the test stated by Laskin J (with respect to section 223 of the Criminal Code Canada) as is implicit from what is quoted below: It is, therefore, not an answer to reliance by the appellant on section 1(a) and section 1(b) of the Canadian Bill of Rights that section 223 does not discriminate against any person by reason of race, national origin, colour, religion or sex. The absence of such discrimination still leaves open the question whether section 223 can be construed and applied without abrogating, abridging or infringing the rights of the individual listed in section I(a) and section I(b).

It is important to note however, that in Smith v LJ Williams the judicial statements with respect to legislation were all obiter dicta as the case involved inequality of treatment by reason of administrative action (the application of a law and not the law itself). The “effect” test has also been endorsed, again as obiter dicta, by Hamel-Smith JA in CBS vs Attorney General Civ App 16 of 2004, at paragraph 31 of the judge’s opinion.

As we have already seen in Smith v LJ Williams (and will continue to see when we deal with equality rights in the context of administrative action), the local courts have drawn heavily on the Indian Jurisprudence on Article 14 of the Indian Constitution. [At 14.

Equality before Law — “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”] And, in particular on the statements of the Indian Court in State of West Bengal vs Anwar Ali Sankar (1952) 39 AIR 75/(1952) SCR 284; and specifically those of Mukherjea J (see for example, Smith v LJ Williams at pages 407, 408 - 409; Attorney General v KC Confectionary Ltd (1985) 34 WIR 387 at pages 400-402, 403 and 415).

In Anwar Ali Sankar it was clearly established that in determining whether an impugned law violated Article 14, no proof of mala fides or of purposeful or intentional discrimination in its enactment was required (contrary to the case of administrative action). In that case Mukherjea J stated (at SCR page 324): If it is established that the person complaining has been discriminated against as a result of legislation and denied equal privileges with others occupying the same position, I do not think that it is incumbent upon him...

to assert and to prove that in making the law, the legislature was actuated by a hostile or inimical intention against a particular person or class.

And Fazal Ali J stated (at SCR page 311): I suggest... that it will be extremely unsafe to lay down that unless there was evidence that discrimination was ‘purposeful or intentional’ (Art 14) would not be infringed... It should be noted that there is no reference to intention in Art 14 and the gravamon of that Article is equality of treatment.

In my opinion, it will be dangerous to introduce a subjective test when the Article itself lays down a clear and objective test.

HM Seervai (Constitutional Law of India, 2nd ed) supporting the view of Basu (cited above) states the ‘correct test’ as being “that the effect of the impugned Act on the personal right conferred by Art 14 must be ascertained, and if the Act involved an infringement of such right, the object of the Act, however laudable, would not obviate the prohibition contained in Article 14” (at page 204).

Several opinions of the Human Rights Committee on Article 26 of the International Covenant on Civil and Political Rights (ICCPR) were cited to this court.

Article 26 of the ICCPR states: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In SWM Brocks v The Netherlands (No 172/1984, ICCPR), the following statements were made in the opinion handed down on the scope and application of Article 26 of the ICCPR: For the purpose of determining the scope of Article 26, the Committee has taken into account the “ordinary meaning” of each element of the article in its context and in the light of its object and purpose (art 31 of the Vienna Convention on the Law of Treaties).

The Committee begins by noting that article 26 does not merely duplicate the guarantees already provided for in article 2. It derives from the principle of equal protection of the law without discrimination, as contained in Article 7 of the Universal Declaration of Human Rights, which prohibits discrimination in law or in practice in any field regulated and protected by public authorities.

Article 26 is thus concerned with the obligations imposed on States in regard to their legislation and the application thereof.