(2003) 64 WIR 270

Balkissoon Roodal v The State

[2003] UKPC 78
JUDICIAL COMMITTEE OF THE PRIVY COUNCIL
LORD BINGHAM OF CORNHILL, LORD STEYN, LORD MILLETT, LORD RODGER OF EARLSFERRY
AND LORD WALKER OF GESTINGTHORPE
23 JUNE, 20 NOVEMBER 2003

Constitutional law Validity of legislation Trinidad and Tobago Mandatory death

sentence Offences Against the Person Act, Chap 11:08 [T], s 4 Interpretation Act,
Chap 3:01 [T], s 68 Constitution of the Republic of Trinidad and Tobago Act 1976, No
4 [T], s 5(1) Republican Constitution of Trinidad and Tobago, ss 5(2)(b), 6(1)
Statute Construction Offences Against the Person Act, Chap 11:08 [T], s 4 Penalty
Death sentence discretionary Interpretation Act, Chap 3:05 [T], s 68 Constitution
of the Republic of Trinidad and Tobago Act 1976, No 4 [T], s 5(1) Republican
Constitution of Trinidad and Tobago, ss 5(2)(b), 6(1)
Constitutional law Constitution Pre-existing law Existing law to be construed with
modifications, etc to bring it into conformity with Constitution Construction a two-stage
process Whether provision capable of such modification Offences Against the
Person Act, Chap 11:08 [T], s 4 Interpretation Act, Chap 3:01 [T], s 68 Human
Rights Act 1998, c 42 [United Kingdom], ss 3, 4 Constitution of the Republic of
Trinidad and Tobago Act 1976, No 4 [T], s 5(1) Republican Constitution of Trinidad
and Tobago, ss 5(2)(b), 6(1)
Fundamental rights and freedoms Cruel and unusual treatment or punishment
Death sentence Punishment incompatible with international obligations Offences
Against the Person Act, Chap 11:08 [T], s 4 American Convention on Human Rights
1969, art 4 American Declaration of the Rights and Duties of Man (1948), art XXVI
Republican Constitution of Trinidad and Tobago, ss 5(2)(b), 6(1)
270
Constitutional law Constitution Judiciary Role Interpreting Constitution and
statutes and upholding fundamental rights Need to accept duty to interpret
Constitution and statutes and not to leave changes in law to Parliament Modifying law
to make death sentence discretionary Offences Against the Person Act, Chap 11:08
[T], s 4

Section 5(1) of the Constitution of the Republic of Trinidad and Tobago Act 1976,
provides:
Subject to the provisions of this section, the operation of the existing law on and
after the appointed day [1 August 1976] shall not be affected by the revocation of
the Order in Council of 1962 but the existing laws shall be construed with such
modifications, adaptations, qualifications and exceptions as may be necessary to
bring them into conformity with this Act.
Section 6 of the 1976 Constitution provides:
(1) Nothing in sections 4 and 5 [of the Constitution] shall invalidate (a) An
existing law; ...
(3) In this section
Existing law means a law that had effect as part of the law of Trinidad and
Tobago immediately before the commencement of this Constitution, and includes
any enactment referred to in subsection (1);
The appellant was convicted of murder and sentenced to death under s 4 of the
Offences Against the Person Act (Every person convicted of murder shall suffer death
as a felon) on the assumption that s 4 imposed a mandatory sentence of death for
murder. The appellants appeal against conviction was dismissed by the Court of
Appeal. The Privy Council, having refused special leave to appeal against conviction,
granted leave to appeal against the sentence of death; the case was remitted to the
Court of Appeal to reconsider the matter of sentence. The Court of Appeal finding that
the mandatory death sentence amounted to cruel and unusual punishment held
that, although s 5(1) of the Constitution of the Republic of Trinidad and Tobago Act 1976
was wide enough to accommodate a modification of s 4 of the Offences Against the
Person Act (an existing law) which would allow a discretionary death sentence, the
mandatory death penalty was saved by s 6(1) of the Constitution. The court added that,
if the death penalty was no longer to be mandatory in Trinidad and Tobago, any change
must be effected by Parliament and not by the courts. The court dismissed the appeal
and affirmed the mandatory sentence of death. On further appeal to the Privy Council
(where it was conceded
271
that a mandatory sentence of death constituted a cruel and unusual punishment,
contrary to s 5(2)(b) of the Constitution),
Held (Lord Millett and Lord Rodger of Earlsferry dissenting), advising that the appeal
against sentence be allowed and the mandatory sentence of death be quashed, that:

(1) on its true construction (in the context of the 1976 Constitution, s 68 of the
Interpretation Act and the international obligations of Trinidad and Tobago) s 4 of the
Offences Against the Person Act provided a discretionary rather than a mandatory death
sentence for the offence of murder, because
(a) the first stage in determining the constitutional validity of an existing law such as s 4
of the Offences Against the Person Act was to determine whether the section could be
modified under s 5(1) of the Constitution of the Republic of Trinidad and Tobago Act
1976 so as to make the words of s 4 conform with the 1976 Constitution (only if an
existing law proved irremediable by resort to modification need regard be had to s 6 of
the 1976 Constitution); this approach was justified by the orthodox canons of
construction,
de Freitas v Benny (1975) 27 WIR 318 considered.
(b) further, the two-stage interpretative process which was broadly consonant with that
adopted in other countries and with ss 3 and 4 of the (United Kingdom) Human Rights
Act 1998, allowed the constitutional power to modify in cases of non-conformity to play
a dynamic but not extravagant role,
Schachter v Canada [1992] 2 SCR 679, Moonen v Film and Literature Board of Review
[2000] 2 NZLR 9, State (The) v Manamela 2000 3 SA 1, considered.
and (c) as a mandatory death sentence was incompatible with the international
obligations (at the time of the offence) of Trinidad and Tobago under art 4 of the
American Convention on Human Rights 1969 and art XXVI of the American Declaration
of the Rights and Duties of Man (1948), an interpretation of s 4 of the Offences Against
the Person Act which was consistent with international obligations of the State was to be
preferred;
Hilaire, Constantine and Benjamin v Trinidad and Tobago (2002) 21 June (InterAmerican Court of Human Rights), Edwards v The Bahamas (Case 12.067) (2001) 4
April (Inter-American Commission on Human Rights), Hall v The Bahamas (Case
12.068) (2001) 4 April (Inter-American Commission on Human Rights), and Schroeter v
The Bahamas (Case
272
12.086) (2001) 4 April (Inter-American Commission on Human Rights) considered.

(2) as the 1976 Constitution had placed upon the judiciary the duty to construe and
apply the Constitution and statutes and to protect guaranteed fundamental rights, the
judiciary could not (in an appropriate situation) shirk the responsibility of effecting the
change from a mandatory death sentence to a discretionary sentence, nor attempt to
shift the responsibility to Parliament; and
(3) accordingly, the matter should be remitted to the High Court to decide, as a matter of
discretion, what sentence to impose on the appellant (the obvious alternative to the
death sentence being a term of imprisonment).
Cases referred to in the advice of the Board
Advisory Opinion OC 3/83 dated 8 September 1983, Inter-American Court of
Human Rights.
Advisory Opinion OC - 10/89 dated 14 July 1989, Inter-American Court of Human
Rights.
Attorney-General of St Christopher, Nevis and Anguilla v Reynolds (1979) 43 WIR
108, [1980] AC 637, [1979] 3 All ER 129, [1980] 2 WLR 171, PC.
Bennett v Chappell [1966] Ch 391, [1965] 3 All ER 130, [1965] 3 WLR 829, England
CA.
Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975]
AC 591, [1975] 1 All ER 810, [1975] 2 WLR 513, HL.
Browne v R (1999) 54 WIR 213, [2000] 1 AC 45, [1999] 3 WLR 1158, [1999] 3 LRC
440, PC.
Case 12.067, Edwards v The Bahamas (2001) 4 April, Inter-American Commission
on Human Rights Report 48/01.
Case 12.068, Hall v The Bahamas (2001) 4 April, Inter-American Commission on
Human Rights Report 48/01.
Case 12.086, Schroeter and Bowley v The Bahamas (2001) 4 April, Inter-American
Commission on Human Rights Report 48/01.
Deaton v Attorney-General [1963] IR 170, Ireland Supreme Court.
de Freitas v Benny (1975) 27 WIR 318, [1976] AC 239, [1975] 3 WLR 388, PC.
Director of Public Prosecutions v Mollison [2003] UKPC 6, 64 WIR 140, [2003] 2 AC
411, [2003] 2 WLR 1160, PC.
Director of Public Prosecutions v Nasralla (1967) 10 WIR 299, [1967] 2 AC 238,
[1967] 2 All ER 161, [1967] 3 WLR 13, PC.
Edwards v The Bahamas; see Case 12.067 above.
Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27, [1999] 4 All ER 705,
[1999] 3 WLR 1113, HL.
273
Fox v R (No 2) [2002] UKPC 13, 61 WIR 169, [2002] AC 284, [2002] 2 WLR 1077,
PC.
Hall v The Bahamas; see Case 12.068 above.
Hilaire, Constantine and Benjamin v Trinidad and Tobago (2002) 21 June, InterAmerican Court of Human Rights.
Hinds, Hutchinson, Martin, Thomas v R (1975) 24 WIR 326, [1977] AC 195, [1976] 1

All ER 353, [1976] 2 WLR 366, 12 Jamaica LR 262, PC.

Kanda v Government of the Federation of Malaya [1962] AC 322, [1962] 2 WLR
1153, PC.
Minister of Home Affairs v Fisher (1979) 44 WIR 107, [1980] AC 319, [1979] 3 All ER
21, [1979] 2 WLR 889, PC.
Moonen v Film and Literature Board of Review [2000] 2 NZLR 9, New Zealand CA;
further proceedings, [2002] 2 NZLR 754, New Zealand CA.
Otis v Parker, 187 US 606 (1903), US Supreme Court.
Pinder v R [2002] UKPC 46, 61 WIR 13, [2003] 1 AC 620, [2002] 1 WLR 2189, PC.
R v Drybones [1970] SCR 282, Canada Supreme Court.
R v Hughes [2002] UKPC 12, 60 WIR 156 at 209, [2002] 2 AC 259, [2002] 2 WLR
1058, PC.
R v Ireland [1998] AC 147, [1997] 4 All ER 225, [1997] 3 WLR 534, [1998] 1 Cr App
Rep 177, HL.
R v Powell (Anthony) [1999] 1 AC 1, [1997] 4 All ER 545, [1997] 3 WLR 959, [1998]
1 Cr App Rep 261, HL.
R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2003] 2 AC 687,
[2003] 2 All ER 113, [2003] 2 WLR 692, HL.
Ramesh Lawrence Maharaj v Attorney-General of Trinidad and Tobago (No 2)
(1978) 30 WIR 310, [1979] AC 385, [1978] 2 All ER 670, [1978] 2 WLR 902, PC.
Resolution 3/87 of the Inter-American Commission on Human Rights; see Roach
and Pinkerton v United States, below.
Reyes v R [2002] UKPC 11, 60 WIR 42, [2002] 2 AC 235, [2002] 2 WLR 1034,
[2002] 2 Cr App Rep 240, PC.
Roach and Pinkerton v United States, Resolution 3/87 (1987) 22 September, InterAmerican Commission on Human Rights.
Royal College of Nursing of the United Kingdom v Department of Health and Social
Security [1981] AC 800, [1981] 1 All ER 545, [1981] 2 WLR 279, HL.
Schachter v Canada [1992] 2 SCR 679, Canada Supreme Court.
Schroeter and Bowley v The Bahamas; see Case 12.086 above.
State (The) v Manamela 2000 (3) SA l, 2000(5) BCLR 491, South Africa
Constitutional Court.
Wakefield and District Light Railways Co v Wakefield Corporation [1906] 2 KB 140,
England Divisional Court.
Woodson v North Carolina, 428 US 280 (1976), US Supreme Court.
274
Editorial note. The decision in this case has been overruled by a majority of an
enlarged Board of the Judicial Committee; see further Boyce and Joseph v R [2004]
UKPC 32, p 37, ante, and Matthew v The State [2004] UKPC 33, p 412, post.
Appeal against sentence

Balkissoon Roodal was convicted of murder on 15 July 1999 and sentenced to death in
accordance with s 4 of the Offences Against the Person Act. His appeal against
conviction was dismissed on 7 April 2000 by the Court of Appeal of Trinidad and
Tobago. He was refused special leave to appeal against his conviction, but on 12
November 2001 the Privy Council granted him leave to appeal against sentence; the
matter of sentence being remitted to the Court of Appeal for consideration. On 17 July
2002, the Court of Appeal dismissed his appeal against sentence, in effect ruling that
the death sentence under s 4 was mandatory. The principal issues before the Privy
Council are set out in para [3] of the advice of the majority of the Board.
Edward Fitzgerald QC, Kier Starmer QC, Frank Solomon SC, Desmund Allum SC,
Douglas Mendes, Gregory Delzin and Rajiv Persad (instructed by Simons, Muirhead
& Burton) for the appellant.
Sir Godfray le Quesne QC, Peter Knox and Tom Poole (instructed by Charles
Russell) for the State.
Their lordships took time for consideration.
20 November 2003. The following advice of the Board was delivered.
Lord Steyn delivered the advice of the majority.
[1] In Trinidad and Tobago judges have assumed that there is a fixed penalty for
murder, namely death. Last year this assumption was tested in the Court of Appeal: the
court ruled that under the law of Trinidad and Tobago the penalty for murder is a
mandatory sentence of death. Now the issue before the Privy Council is whether the
penalty for murder is a mandatory or discretionary death sentence. It raises profoundly
important questions about the application of the death penalty in Trinidad and Tobago
and the working of the Constitution.
I. The proceedings below
[2] On 15 July 1999 at the San Fernando assizes a jury convicted the appellant of
murder. Section 4 of the Offences Against the Person Act 1925 provides that Every
person convicted of murder shall suffer death as a felon. The judge imposed what he
regarded as a mandatory sentence of death. On 7 April 2000, the Court of Appeal of the
Republic of Trinidad and Tobago dismissed the appellants appeal against conviction.
275
On 2 November 2000 the Privy Council dismissed a petition by the appellant for
special leave to appeal against his conviction. On 12 November 2001, the Privy Council
granted leave to appeal against the sentence of death and remitted the matter to the
Court of Appeal to reconsider the matter of sentence. On 17 July 2002, de la Bastide CJ
delivered the judgment of the Court of Appeal which dismissed the appellants appeal
against sentence and affirmed the mandatory sentence of death imposed on him.

II. The issues

[3] There were three principal issues before the Court of Appeal namely
(a) whether construed in the light of s 68 of the Interpretation Act 1962 s 4 of the
1925 Act prescribes a maximum and not the only penalty;
(b) alternatively, whether s 4 requires modification so as to provide for a
discretionary death sentence in order to bring it into conformity with the 1976
Constitution of Trinidad and Tobago; and
(c) in the further alternative, whether the imposition of a mandatory death
sentence violates the constitutional principle of separation of powers.
The Court of Appeal rejected the contentions of the appellant on each of the issues. The
Privy Council must now examine a challenge to the decision of the Court of Appeal.
Before that can be done it is necessary to describe the matrix of the problem.
III. The exorbitant reach of the death penalty for murder
[4] In Trinidad and Tobago the crime of murder is based on the English common law.
Murder covers an extraordinarily wide spectrum of cases of homicide, most of which
would not be regarded as murder in ordinary parlance. In R v Powell [1999] 1 AC 1 at
14 and 15, this point was explained:
In English law a defendant may be convicted of murder who is in no ordinary
sense a murderer. It is sufficient if it is established that the defendant had an intent
to cause really serious bodily injury. This rule turns murder into a constructive crime.
The fault element does not correspond to the conduct leading to the charge, ie the
causing of death. A person is liable to conviction for a more serious crime than he
foresaw or contemplated; see Williams, Textbook of Criminal Law (2nd Edn, 1983),
pp 250, 251; Ashworth, Principles of Criminal Law (2nd Edn, 1995), pp 85, 261; and
Card, Cross & Jones, Criminal Law (12th Edn,
276
1992), pp 203, 204. This is a point of considerable importance. The Home Office
records show that in the last three years for which statistics are available mandatory
life sentences for murder were imposed in 192 cases in 1994; in 214 cases in 1995;
and in 257 cases in 1996. Lord Windlesham, writing with great Home Office
experience, has said that a minority of defendants convicted of murder have been
convicted on the basis that they had an intent to kill: Responses to Crime, vol 3
(1996), p 342, note 29. That assessment does not surprise me. What is the
justification for this position? There is an argument that, given the unpredictability
whether a serious injury will result in death, an offender who intended to cause
serious bodily injury cannot complain of a conviction of murder in the event of a
death. But this argument is outweighed by the practical consideration that
immediately below murder there is the crime of manslaughter for which the court
may impose a discretionary life sentence or a very long period of imprisonment.
Accepting the need for a mandatory life sentence for murder, the problem is one of
classification. The present definition of the mental element of murder results in

defendants being classified as murderers who are not in truth murderers . . . It

results in the imposition of mandatory life sentences when neither justice nor the
needs of society require the classification of the case as murder and the imposition
of a mandatory life sentence.
These observations apply with far greater force in Trinidad and Tobago where it is also
sufficient to establish murder to prove an intent to cause serious bodily harm and where
at present the view is that all who fall within the class of convicted murders must be
sentenced to death.
[5] The Report of the Royal Commission on Capital Punishment (1949-1953) (Cmd
8932) at para 21 states that
there is perhaps no single class of offences that varies so widely both in
character and in culpability as the class comprising those which may fall within the
comprehensive common-law definition of murder.
The royal commission illustrated this point with many examples which need not be set
out. For present purposes it is sufficient to say that at one end of the range of cases
may be the serial killing of young children and at the other end an assault which went
wrong and unexpectedly resulted in the death of another.
[6] The royal commission further observed (at para 22) that no-one would now dispute
that for many of these crimes it would be monstrous to inflict the death penalty. The
same applies to the current practice in Trinidad and Tobago. It appears from the
statistics provided by the royal commission that in England in the first half of the 20th
century 45 per cent of persons sentenced to death were reprieved, and of those twice
as many served terms under five years (in some cases less than one year) as served
277
terms over fifteen years. In Trinidad and Tobago for the period 1961-1988 in twentynine out of the fifty-one cases, which were referred to the Advisory Committee on the
Power of Pardon, executions were carried out; the Prescott Commissions Report on
the Death Penalty in Trinidad and Tobago (1990), Appendix 3. In the other cases the
prisoners were mostly released within fifteen years. In three cases the prisoners were
released within five to six years. This further illustrates how unjust it is to impose on all
persons convicted of murder a mandatory death sentence.
[7] This view is reinforced by the judgment of 21 June 2002 of the Inter-American
Court of Human Rights in Hilaire, Constantine and Benjamin v Trinidad and Tobago.
The court observed about s 4 (at paras 104 to 106):
The court finds that the Offences Against the Person Act has two principal
aspects: (a) in the determination of criminal responsibility, it only authorises the
competent judicial authority to find a person guilty of murder solely based on the
categorisation of the crime, without taking into account the personal conditions of
the defendant or the individual circumstances of the crime; and (b) in the
determination of punishment, it mechanically and generically imposes the death
penalty for all persons found guilty of murder and prevents the modification of the
punishment through a process of judicial review.
The court concurs with the view that to consider all persons responsible for
murder as deserving of the death penalty, treats all persons convicted of a

designated offence not as uniquely individual human beings, but as members of a

faceless, undifferentiated mass to be subjected to the blind infliction of the death
penalty. [The citation is from Woodson v North Carolina, 428 US 280 at 304
(1976).]
In countries where the death penalty still exists, one of the ways in which the
deprivation of life can be arbitrary under art 4(1) of the Convention is when it is
used, as is the case in Trinidad and Tobago due to the Offences Against the Person
Act, to punish crimes that do not exhibit characteristics of utmost seriousness, in
other words, when the application of this punishment is contrary to the provisions of
art 4(2) of the American Convention.
A mandatory sentence of death is contrary to the Inter-American Convention on Human
Rights; Schabas, The Abolition of the Death Penalty in International Law (3rd Edn,
2002), 111.
IV. The approach to the issues
[8] The first issue focuses on the Interpretation Act, and the second on the
Constitution. The Court of Appeal approached these two issues as if they must legally
be put in separate boxes. That is not entirely right. The Constitution, statute law and
common law coalesce in one legal system.
278
The Constitution has a direct effect on statute law and common law, as well as an
indirect radiating influence on both. It is therefore ultimately not possible to consider the
Interpretation Act divorced from the constitutional dimension. Subject to this important
qualification, it is possible to start with a preliminary examination of the first issue.
V. Issue (a): the application of the Interpretation Act
[9] Section 64 of the Interpretation Act 1962 provides:
Where a written law provides (in whatever terms) that a person is liable to a
penalty if he commits a specified act, that act shall be deemed to have been
constituted an offence by such written law.
Section 68 of the Interpretation Act provides:
(1) Where a punishment is provided by a written law for an offence against the
written law, the provision indicates that the offence is punishable by a punishment
not exceeding that provided.
(2) Where in any Act or statutory instrument provision is made for any minimum
penalty or fine, or for any fixed penalty or fine, as a punishment for a criminal
offence, such Act or statutory instrument shall have effect as though no such
minimum penalty or fine had been provided, or as though the fixed penalty or fine
was the maximum penalty or fine, as the case may be.
The question is what the impact of the provisions of the Interpretation Act is on s 4 of
the 1925 Act.
[10] Counsel for the appellant submits that by reason of s 64 of the Interpretation Act
murder is constituted an offence by written law. On that supposition, s 68 of the

Interpretation Act comes into operation and has the effect that the fixed penalty under s
4 becomes a maximum penalty. Hence the sentence for murder is discretionary.
[11] The Court of Appeal dismissed this submission for three reasons. First, the Court
of Appeal held that murder is not an offence against written law within the meaning of s
68. The Court of Appeal did not, however, consider how this view is reconcilable with s
64 of the Interpretation Act. The Court of Appeal was mistaken on this point. This view
has now been abandoned by the respondent.
[12] Secondly, in considering the scope of s 68 of the Interpretation Act, the Court of
Appeal held that any reduction should be in the same currency, so to speak, as that in
which the fixed penalty or fine is expressed. This view is not correct. For example,
reduction of a disqualification to a fine is not in the same currency. And the section
permits the substitution of a fine for a term of imprisonment. In any event, this restrictive
interpretation is not supported by anything in the language of the statute. It is not
inherent in the language nor is it
279
necessarily to be implied. It is also inappropriate in the context of remedial legislation.
The second reason of the Court of Appeal for dismissing the argument based on the
Interpretation Act is flawed.
[13] Thirdly, the Court of Appeal observed:
It is incredible that in 1941 in the midst of the Second World War the Legislative
Council of Trinidad and Tobago which was effectively controlled by a colonial
Governor, would have intended when it enacted the Minimum Penalties and Fines
(Removal) Ordinance, to make such a fundamental change in the law as to abolish
the mandatory death penalty, more so as it still remained at that time part of the law
of England. It is a basic principle of statutory construction that long-standing rules,
whether statutory or common law, are not to be overturned by a side-wind.
This statement must be read with the conclusion of de la Bastide CJ that
... it was not the intention of the legislature, either when the Legislative Council
enacted the 1941 Ordinance or when the pre-Independence Parliament replaced it
in 1962, to change the long-standing and fundamental rule of both statute and
common law that every person convicted of murder should be sentenced to death.
The view that it was inconceivable that in colonial times a mandatory death sentence
would be turned into a discretionary one is too simplistic; such changes were made in
India, Pakistan, South Africa and Southern Rhodesia; see the Report of the Royal
Commission, paras 73 to 76. In any event, the question arises whether interaction
between s 4 of the 1925 Act and the Interpretation Act must be approached as always
speaking legislation to be construed in the world of today. This principle of construction
was explained by the House of Lords in R v Ireland [1998] AC 147. How is it to be
determined whether legislation is an [sic] always speaking or tied to the circumstances
existing when it was passed ? In R v Ireland the House of Lords held (at p 158):
In cases where the problem arises it is a matter of interpretation whether a court
must search for the historical or original meaning of a statute or whether it is free to
apply the current meaning of the statute to present-day conditions. Statutes dealing

with a particular grievance or problem may sometimes require to be historically

interpreted. But the drafting technique of Lord Thring and his successors has
brought about the situation that statutes will generally be found to be of the always
speaking variety ...
280
Section 10(1) of the Interpretation Act 1962 spells out this principle for Trinidad and
Tobago by providing that Every written law shall be construed as always speaking ....
[14] Counsel for the respondent was not prepared to accept that this principle is
applicable in the present case. But he was not able to point to specific features of the
legislation which exclude the principle. Given that in R v Ireland the principle was
applied to a Victorian criminal statute, it is difficult to see why it should not be equally
applicable in the present context. The Court of Appeal may have erred in searching for
an original intent. The better view may be that the legislation should be interpreted in
the light of its place within the system of legal norms currently in force; Sir Rupert
Cross, Statutory Interpretation (3rd Edn, 1995), 52. What this entails in regard to
Trinidad and Tobago will be discussed in the next section of this judgment.
[15] There is, however, another idea implicit in the reasoning of the Court of Appeal,
namely that the legislature would not have abolished the mandatory death sentence by
a side-wind. On examination, this is an argument that Parliament could not in fact have
intended to change the regime from a mandatory to a discretionary death sentence.
Again, however, this approach is not necessarily right. In Black-Clawson International
Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613, Lord Reid
observed:
We often say that we are looking for the intention of Parliament, but that is not
quite accurate. We are seeking the meaning of the words which Parliament used.
We are seeking not what Parliament meant but the true meaning of what they said.
This statement has been repeated on many occasions in the House of Lords and the
Privy Council. The question may therefore simply be whether, in the context of the
contemporary legal system of Trinidad and Tobago, the statutory language can fairly be
said to permit the reduction of the fixed penalty of a mandatory death sentence to a
discretionary one.
[16] That leads to the general question of the construction of s 68. The Chief Justice
observed that approached purely as a matter of semantics, the death penalty would
prima facie seem to qualify as a fixed penalty . Counsel for the respondent took the
same position. Prima facie, the text of the statute supports the view that it is a fixed
penalty. On the other hand, even if due allowance is made for the always speaking
canon of construction, there is an argument that one would not expect the Interpretation
Act to be used to effect a fundamental change in respect of the mandatory death
sentence.
[17] It is permissible to conclude that there are respectable arguments supporting the
view that under s 68 the death penalty is the maximum penalty, the sentence being in
the discretion of the trial judge. It is, however, necessary to defer a decision on this point
until the
281

constitutional dimension together with the applicable norms of today have been
explored.
VI. Issue (b): constitutional modification
[18] An Order in Council of 1961 contained a Constitution of Trinidad and Tobago. It
was replaced by a new Constitution as part of the Trinidad and Tobago (Constitution)
Order in Council 1962. The 1962 Constitution contained in ss 1 and 2 a Bill of Rights. In
s 2 there was a guarantee against the imposition of cruel and unusual treatment or
punishment. Section 3 provided:
Sections 1 and 2 of this Constitution shall not apply in relation to any law that is in
force in Trinidad and Tobago at the commencement of this Constitution.
Section 4(1) of the Order provided:
Subject to the provisions of this section, the operation of the existing laws after
the commencement of this Order shall not be affected by the revocation of the
existing Order but the existing laws shall be construed with such modifications,
adaptations, qualifications and exceptions as may be necessary to bring them into
conformity with this Order.
Existing laws mean legislation having effect as part of the law of the Colony of Trinidad
and Tobago immediately before the commencement of this Order; s 4(5) of the Order.
[19] In 1976 the Constitution of the Republic of Trinidad and Tobago Act was enacted.
The Constitution was a Schedule to the Act. Section 2 of the Constitution provides:
This Constitution is the supreme law of Trinidad and Tobago, and any other law
that is inconsistent with this Constitution is void to the extent of the inconsistency.
It came into force on 27 July 1976.
[20] The Bill of Rights under the 1976 Constitution was cast in absolute terms. There
are undoubtedly implied limitations on these guarantees. One such limitation may derive
from s 53 of the Constitution which vests in Parliament the power to make laws for the
peace, order and good government of Trinidad and Tobago; see Demerieux,
Fundamental Rights in Commonwealth Caribbean Constitutions (1992), 87 to 89.
Section 13 which contains the requirement that legislation inconsistent with the Bill of
Rights must be justifiable in a society that has a proper respect for the rights and
freedoms of the individual and be passed by a three-fifths majority, is also relevant. This
point is, however, not material to the problem presently before the Privy Council.
282
[21] Section 4 of the Constitution provides:
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:(a) the right of the individual to life ... and the right not to be deprived thereof
except by due process of law;

(b) the right of the individual to equality before the law and the protection of the
law;
Section 5 of the Constitution provides:
(1) Except as is otherwise expressly provided in this chapter and in section 54, no
law may abrogate, abridge or infringe or authorise the abrogation, abridgement or
infringement of any of the rights and freedoms hereinbefore recognised and
declared.
(2) Without prejudice to subsection (1), but subject to this chapter and to section
54, Parliament may not ... (b) impose or authorise the imposition of cruel and
unusual treatment or punishment.
The first question before the Court of Appeal was whether a mandatory death sentence
is a cruel and unusual punishment within the meaning of s 5(2)(b). Following the
decision of the Privy Council in Reyes v R [2002] UKPC 11, 60 WIR 42, the Court of
Appeal held that the mandatory sentence of death is a cruel and unusual punishment.
The correctness of this ruling is not disputed. In these circumstances it is unnecessary
to consider whether s 4 of the 1925 Act is in conformity with the right to life guarantee
under s 4(a) of the Constitution. The fact that it is conceded by the State that the
mandatory sentence of death in Trinidad and Tobago is a cruel and unusual punishment
under the 1976 Constitution must not be allowed to obscure the fact that the
condemnation of this punishment is the framework within which the issues on this
appeal must now be considered.
[22] It is now necessary to turn to the provisions in the Act and in the Constitution
which govern the position of existing laws. Such provisions are to be found in a number
of Caribbean Constitutions, and there are decided cases in various contexts on such
provisions. Generalising about the effect of such provisions in different contexts is to be
avoided. An intense focus on the particular provisions applicable in Trinidad and
Tobago, in the context of the specific problem before the Privy Council, is necessary.
Section 5(1) of the 1976 Constitution Act, provides:
Subject to the provisions of this section, the operation of the existing law on and
after the appointed day shall not be affected by the revocation of the Order in
Council of 1962 but the existing laws shall
283
be construed with such modifications, adaptations, qualifications and exceptions
as may be necessary to bring them into conformity with this Act.
Section 6 of the Constitution provides:
(1) Nothing in sections 4 and 5 shall invalidate (a) An existing law; ...
(3) In this section
Existing law means a law that had effect as part of the law of Trinidad and
Tobago immediately before the commencement of this Constitution, and includes
any enactment referred to in subsection (1);
The question is whether the power to make modifications under s 5(1) of the Act is wide
enough to cover what appears to be a mandatory sentence of death under s 4 of the

1925 Act so far as such a mechanical rule is not in conformity with the Constitution.
[23] The Court of Appeal directly addressed this issue. de la Bastide CJ concluded:
We hold that the power to construe with modifications under s 5(1) of the Act is
wide enough to enable a court to remove or correct virtually any inconsistency with
the Constitution that may be found in an enactment. The Privy Council has in
Reyes [60 WIR 42]; Hughes [60 WIR 156 at 209]; and Fox [61 WIR 169] sanctioned
its use for the purpose of removing the mandatory death penalty by amending the
laws which prescribed it. We have no doubt that it could be used for that purpose in
Trinidad and Tobago. It would take no more than the same amendment of s 4 of the
Offences Against the Person Act as was made to the corresponding provision in St
Christopher and Nevis in Fox and possibly an amendment of s 68(2) of the
Interpretation Act to give the court power to impose a sentence of imprisonment on
a person convicted of murder. [references to decisions on appeal from Belize, St
Lucia and St Christopher and Nevis added]
It is common ground that s 5(1) is wide enough to accommodate the modification of s 4
of the 1925 Act by providing for a discretionary death sentence.
[24] But de la Bastide CJ concluded that the mandatory death penalty was saved by s
6. The Chief Justice observed:
The effect of this modification would be to recognise and give effect to the invalidity of
the mandatory death penalty. Such a modification is the consequence of partial
invalidity rather than an alternative to, or substitute for, it. The mandatory death penalty,
however, is saved from invalidity
284
by s 6(1) of the Constitution, and so s 5(1) of the Act cannot be pressed into service to
remove it. However strictly and narrowly the word invalidate may be construed, we do
not consider that it can with any semblance of rationality be understood to mean render
invalid pursuant to s 2, if, but only if, the cause of the invalidity cannot be removed by
modification under s 5(1) of the Act. Such an interpretation would strip existing laws of
virtually all the protection which they were afforded under the special savings clause in
the 1962 Constitution. We do not accept that that was what Parliament intended by the
language of the special savings clause in the Constitution. [emphasis supplied]
It will be noted that de la Bastide CJ invoked the position under the 1962 Constitution.
The question is whether the Chief Justice construed s 6 correctly.
[25] The Chief Justice assumed that the extent of the power of modification under the
1962 and 1976 Constitutions remained the same. A comparison between the powers of
modification under s 4 of the 1962 Order and under s 5(1) of the 1976 Constitution Act
can be made. But equating s 3 of the 1962 Constitution and s 6(1) of the 1976
Constitution is not justified. The former is a straightforward shut out provision; see de
Freitas v Benny (1975) 27 WIR 318 at 320. Modifying s 4 of 1925 Act by providing for a
discretionary life sentence is plainly ruled out by s 3 of the 1962 Constitution. The 1976
Act and Constitution adopted a more open textured scheme in respect of existing laws.
This change in language from shall not apply to shall not invalidate could not have
been unintended. Otherwise one would have expected a continuance of the shut out

provision in the 1962 Constitution in respect of existing laws. In 1976 the door was
opened to the argument now before the Privy Council.
[26] In any event, there is another possible interpretation. It is to the effect that the
first stage is to determine whether s 4 of the 1925 Act can be modified under s 5 of the
1976 Act, by reading down, reading in, or severance, so as to render the words of the
statute in conformity with the Constitution. Section 6 of the Constitution only comes into
operation to preclude invalidation of an existing law which has proved irremediable by
resort to modification. In that event s 2 renders the provision void, unless it is saved in
respect of s 4 or s 5 non-conformity by s 6. It is true, of course, that there is a potential
tension between s 5 and s 6. This interpretation has the merit of giving a generous
interpretation to s 5 and at the same time it does not give an extensive interpretation to
what Part II describes as the Exceptions for Existing Law, which include s 6(1).
Exceptions contained in constitutional Bills of Rights are ordinarily to be given a narrow,
rather than broad, construction. This approach is justified on orthodox canons of
construction.
[27] While great care must be taken about comparing constitutional provisions cast in
different terms, it is permissible to note that such a
285
two-stage interpretative process would operate in a broadly similar fashion to the
obligation of reading down provisions in the Bills of Rights of Canada, New Zealand,
South Africa and the United Kingdom, which must be undertaken before incompatibility
or sometimes invalidity is considered; see Schachter v Canada [1992] 2 SCR 679 at
695 and 696, Moonen v Film and Literature Board of Review [2000] 2 NZLR 9, The
State v Manamela 2000 3 SA l, and ss 3 and 4 of the Human Rights Act 1998 [United
Kingdom]. It is a workable and benign technique to give a reasonable measure of
protection to fundamental rights in a practical world where there are inevitably tensions
between individual rights and good democratic government.
[28] The suggested interpretation allows the constitutional power to modify in cases of
non-conformity to play a dynamic but not extravagant role. For example, it would not
warrant a challenge to the death sentence as such. On the other hand, the
interpretation of the Court of Appeal allows only minimal scope for the operation of s 5
of the 1976 Act. The context of fundamental rights in respect of issues of life and death
demands
a generous interpretation avoiding what has been called the austerity of
tabulated legalism, suitable to give to individuals the full measure of the
fundamental rights and freedoms referred to
see Minister of Home Affairs v Fisher (1979) 44 WIR 107 at 112, [1980] AC 319. Instead
the Court of Appeal has adopted a more technical approach.
[29] So far as possible the Constitution should also be interpreted so as to conform to
the international obligations of Trinidad and Tobago. On 28 May 1991 Trinidad and
Tobago ratified the American Convention on Human Rights 1969. It is true that on 26
May 1998 Trinidad and Tobago denounced the Convention. The denunciation took
effect on 26 May 1999. But at the time of the murder, namely on 19-20 August 1995,
Trinidad and Tobago was a party to the American Convention on Human Rights. It is
accepted by the State that the law in force at the time of the commission of the offence

is determinative. It is therefore applicable to the present case. Article 4.2 of the

Convention provides that the death sentence may only be imposed for the most serious
crimes; Advisory Opinion OC 3/83 of 8 September 1983 by the Inter-American Court
of Human Rights: Restrictions to the Death Penalty (art 4(2) and 4(4) of the American
Convention on Human Rights), at para 54. The imposition of a mandatory death
sentence is inconsistent with art 4 of the Convention as explained by the Inter-American
Court of Human Rights in its judgment in Hilaire discussed in paragraph [7] above. If
possible, an interpretation consistent with the Convention should be adopted.
[30] Moreover, Trinidad and Tobago is still a member of the Organisation of American
States. Initially, the American Declaration of the Rights and Duties of Man (1948) was
not viewed as creating legal duties. On the other hand, before Trinidad and Tobago
ratified the
286
American Convention on Human Rights in 1991 the organs created by the Convention
had commenced to give normative effect to the Declaration; see Resolution 3/87,
Roach and Pinkerton v United States, by the Inter-American Commission on Human
Rights, 22 September 1987; Advisory Opinion by the Inter-American Court of Human
Rights, OC - 10/89, dated 14 July 1989, given at the request of the Government of
Colombia; Oppenheims International Law (9th Edn, 1992), 1027 to 1029; and Schabas,
op cit, 315. That was the basis on which Trinidad and Tobago became members of the
Organisation of American States. Trinidad and Tobago is subject to the petition
procedure before the Commission for violations of the American Declaration. The
American Declaration is applicable to Trinidad and Tobago; the Inter-American
Commission on Human Rights Report 48/01 in cases numbers 12.067 (Edwards),
12.068 (Hall), and 12.086 (Schroeter and Bowley) against The Bahamas dated 4 April
2001. The Declaration contains a guarantee in art XXVI against cruel, infamous or
unusual punishment. The Commission concluded in its adjudication of 4 April 2001 that
a mandatory sentence of death was, amongst others, in breach of art XXVI; paras 137,
138 and 147. The basis of this ruling was that the sentence had
the effect of depriving a person of their [sic] rights to life based solely on the
category of the crime ... without regard for the offenders personal circumstances or
the circumstances of the individual offence.
A mandatory sentence of death is inconsistent with the international obligations of
Trinidad and Tobago under the Declaration. An interpretation consistent with the
international obligations of Trinidad and Tobago is to be preferred.
[31] For all these reasons the Board concludes that s 4 of the 1925 Act should be
interpreted as providing for a discretionary life sentence.
[32] How is the modification to be effected? That brings one back to the Interpretation
Act, construed now in the world of today and in the light of the Constitution as well as
domestic and international norms. So interpreted, s 68 of the Interpretation Act should
be read as providing not for a fixed penalty of death for murder but for a maximum
penalty of death. In other words, the imposition of the death penalty for murder is
discretionary. The obvious alternative to it is imprisonment. No further modification of s 4
of the 1925 statute is required.

VII. Issue (c): separation of powers

[33] Given the conclusions on issues (a) and (b) it unnecessary to consider the
separation of powers argument. The Board expresses no view on this part of the case.
287
VIII. The respective roles of Parliament and the courts
[34] Before leaving this matter it is necessary to refer to the following observation of
de la Bastide CJ:
We are firmly of the view that if the death penalty is no longer to be mandatory in
Trinidad and Tobago, this change must be effected by Parliament. There are some
advantages to doing it by legislation rather than by judicial decision. Parliament will
be able to determine and prescribe whether the alternative punishment for murder
should be imprisonment for life or for a term to be decided by the judge. It may also
provide some guideline as to the factors which the judge is to take into account in
determining whether or not to impose the death penalty. Parliament may also wish
to address the question of what role, if any, the jury should play in determining the
sentence to be imposed on a convicted murderer. This consideration, however, has
played no part in leading us to the conclusion we have reached.
The Constitution is the supreme law of Trinidad and Tobago. The Constitution itself has
placed on an independent, neutral and impartial judiciary the duty to construe and apply
the Constitution and statutes and to protect guaranteed fundamental rights, where
necessary. It is not a responsibility which the courts may shirk or attempt to shift to
Parliament. Loyalty to the democratic legal order of the Constitution required the Privy
Council to grapple with the question before it and to decide it.
IX. Disposal
[35] The Privy Council quashes the mandatory sentence of death imposed on the
appellant and remits the matter to the High Court to decide as a matter of discretion
what sentence to impose.
Lord Millett and Lord Rodger of Earlsferry delivered a minority opinion.
[36] In this critically important appeal we have the misfortune to disagree, respectfully
but profoundly, with the opinion of the majority of the Board. To explain our reasons, we
examine each of the appellants four arguments in turn.
Section 68 of the Interpretation Act 1962
[37] Mr Fitzgerald began by arguing that, by reason of s 68(2) of the Interpretation Act
1962 (the Interpretation Act), the mandatory death penalty for murder in s 4 of the
Offences Against the Person Act 1925 (the 1925 Act) was to be regarded as a
maximum sentence and that the courts had a discretion to impose a lesser sentence of
imprisonment.

288
[38] We do not spend time in considering whether s 68(1) of the Interpretation Act
applies. The Court of Appeal held that it did not, on the ground that murder remains a
common-law offence (s 3 of the 1925 Act) and is therefore not an offence against the
written law. The majority reject the Court of Appeals view as being irreconcilable with s
64 of the Interpretation Act. In truth s 64 has nothing to do with a section, such as s 3 of
the 1925 Act, which provides that anyone who commits a specified act is deemed to be
guilty of murder, manslaughter, buggery or rape, as the case may be; all of them
offences. Section 64 is concerned, rather, with provisions, such as ss 10 and 25(1) of
the 1925 Act, which say that a person who commits a specified act is liable to a penalty
(imprisonment) without actually saying that the act in question constitutes an offence.
By s 64 that act is deemed to have been constituted an offence by the provision in
question.
[39] What matters, of course, is that s 68(2) of the Interpretation Act applies where
provision is made in any Act for any minimum penalty or fine, or for any fixed penalty or
fine. As the Court of Appeal acknowledged, if approached purely as a matter of
semantics, the death penalty in s 4 of the 1925 Act would prima facie seem to qualify
as a fixed penalty in terms of s 68(2). But they went on to test that semantic argument.
The majority criticise their reasoning. We look at the arguments in a slightly different
order.
[40] The Court of Appeal made the point that it was incredible that in 1941 in the midst
of the Second World War the Governor and Legislative Council of the Colony of Trinidad
and Tobago would have intended, by enacting the Minimum Penalties and Fines
(Removal) Ordinance, to make such a fundamental change in the law as to abolish the
mandatory death penalty, the more so as it still remained at that time part of the law of
England. In part at least, the Court of Appeal was making much the same point as the
Board had made a few months before in relation to s 252 of the 1888 Criminal Code of
St Lucia in R v Hughes [2002] UKPC 12, 60 WIR 156 at 214: bearing in mind that the
death sentence was mandatory in the United Kingdom until 1957, their lordships
regarded it as unthinkable that it would ever have been the intention in 1888 to make
the death penalty discretionary in what was then the Colony of St Lucia. In so holding
they were in substance applying the long-established presumption that Parliament
should not be taken to have changed an important legal rule by a side-wind; see, for
instance, Bennion, Statutory Interpretation (4th Edn, 2002), 693, 694 and Bennett v
Chappell [1966] Ch 391. As the Court of Appeal observed, that approach is equally
applicable in the present case.
[41] As supposed grounds for questioning the view of the Court of Appeal about the
likely intentions of the Governor and Legislative Council of a Crown Colony in 1941, the
majority cite provisions in the legislation of India, Pakistan, South Africa and Southern
Rhodesia which were described in App 11, paras 73 to 76, to the Report of the Royal
289
Commission on Capital Punishment (1949-1953) (Cmd 8932). All are irrelevant to that
issue.
[42] When India and Pakistan became independent in 1947, their criminal law
continued to be found in the amended version of the Indian Penal Code 1860. The

Code was first drafted by Macaulay in 1837 and, having been debated for decades, was
eventually passed by the Legislative Council and Governor-General in the wake of the
Indian Mutiny. Section 302 of that painstakingly considered measure is expressed in
unambiguous terms. It is no basis for supposing that the 1941 Trinidad and Tobago
Ordinance was intended sub silentio to make the death penalty discretionary, nor
indeed for questioning the construction which the Board recently placed on s 252 of the
1888 Criminal Code of St Lucia. So far as South Africa is concerned, the South Africa
Act 1909 instituted a Parliament with full power to make laws for the peace, order and
good government of the Union. The Union thus became a self-governing Dominion.
Section 61(a) of the General Law Amendment Act 1935, amended s 338 of the Criminal
Procedure and Evidence Act 1917, so as to make the death penalty discretionary where
there were extenuating circumstances. That amending provision, again in unambiguous
terms, was passed following a suggestion of the Judges Conference in 1933 and after
full debate in the House of Assembly when General Smuts was the Minister of Justice.
The constitutional position of Southern Rhodesia under the 1923 Constitution was in
many respects anomalous; it lay somewhere between a self-governing Colony and a
Dominion. The important point is, however, that the Criminal Procedure and Evidence
Amendment Act 1949, which reproduced the South African legislation exactly, was also
an express enactment of the Legislative Assembly which had all the necessary powers
in this sphere. Neither the South African nor the Southern Rhodesian provisions cast
any light on the likely intentions of the Governor and Legislative Council of the Crown
Colony of Trinidad and Tobago in 1941. Nor do they touch the Court of Appeals
reasoning.
[43] Further support for that reasoning is in any event available. Counsel for the
appellant placed before the Board an extract from the speech by the Attorney-General
to the Governor and Legislative Council, when he moved the second reading of what
became the 1941 Ordinance. From that speech it is obvious that the focus was on
minimum and maximum fines. The Government thought that it would make for better
justice if the fetters of these minima and maxima were removed and the courts were left
free to exercise their discretion. Of course, the scope of the Ordinance went beyond
fines. But it is utterly unrealistic to suppose that, if the Attorney-General had been
proposing a reform which would have made the death penalty discretionary in this
particular Colony, he would have ignored that aspect and would have justified the
measure by referring to the problems caused by minimum and maximum fines. Not
surprisingly therefore, practitioners and judges continued to regard the
290
death penalty as mandatory in the case of murder. As Mr Fitzgerald acknowledged,
that is not a factor which the Board either can or should ignore.
[44] The legislature has been equally consistent. Section 48 of the Criminal Procedure
Act 1925 allows the court to impose a fine in lieu of, or in addition to, any other penalty
where a person is convicted on indictment of any offence other than a capital offence
[emphasis supplied]. The qualification in italics presumes that anyone convicted of a
capital offence is sentenced to death. The same applies to s 50 which provides for
corporal punishment in certain circumstances if any person is convicted of an
arrestable offence, not punishable with death ... [emphasis supplied]. The same also
goes for s 72 of the Interpretation Act itself. It gives the court the power to bind over in

the case of a person convicted of an offence other than a capital offence [emphasis
supplied]. If there were any question of a court imposing a sentence other than death for
capital offences, these provisions would all have had to be framed so as to apply only
where the death sentence was actually imposed.
[45] The majority assert that the Court of Appeal was not correct when it said that in
terms of s 68(2) any reduction in a fixed penalty should be in the same currency, so to
speak, as that in which the fixed penalty or fine is expressed. By giving the example of
reducing a disqualification to a fine as being possible under s 68(2), the majority simply
assume the answer to the point in issue. The point is, however, by no means
straightforward. If for some offence Parliament provides a fixed penalty of
disqualification from driving for a period of twelve months, s 68(2) may well be apt to
turn that period into the maximum period of disqualification and to permit the court to
impose a shorter period. But it is a large leap in reasoning to suggest that s 68(2)
means that Parliament would necessarily have been content for the court not to
disqualify at all and simply to fine the motorist. Section 48 of the Criminal Procedure Act
1925, which the majority leave out of account, does not support their reasoning.
Moreover, once the currency of a penalty is changed, all kinds of problems of rates of
exchange occur: for instance, is six months imprisonment plus corporal punishment a
lesser penalty than twelve months imprisonment without the corporal punishment? It is
noteworthy that in the United Kingdom, where Parliament permits the reviewing
authority to substitute a lesser sentence for the sentence of a court-martial, it lays down
the hierarchy of punishments, precisely to avoid such difficulties; Army Act 1955, ss
71(1) and 113. The reasoning of the Court of Appeal, which may well reflect the
accepted interpretation of s 68(2), cannot be swept aside without due consideration of
all the implications.
[46] In fact, however, a much deeper but related flaw lies at the heart of the reasoning
of the majority. Section 4 of the 1925 Act provides that Every person convicted of
murder shall suffer death. No other penalty for murder is provided in the 1925 Act, or
anywhere else in the statute
291
book. The relevant provisions of the Interpretation Act are concerned with the
interpretation of penal provisions which are to be found in statutes. Unless, like s 72,
they do so expressly, the provisions of the Interpretation Act are not intended
themselves to confer on the courts substantive powers of punishment. There is,
therefore, no statutory provision which authorises the courts to impose a sentence of
imprisonment on someone who is convicted of murder. Accordingly, by reason of s 4 of
the 1925 Act, except in the case of an expectant mother (s 62 of the Criminal Procedure
Act 1925), it is unlawful for a court to impose any sentence other than death on anyone
convicted of murder. It would be lawful only if s 4, in so far as making the death
sentence mandatory, were inconsistent with the Constitution and had to be made
consistent by modifying it, in terms of s 5(1) of the Constitution of the Republic of
Trinidad and Tobago 1976 Act, so as to authorise the court to impose a sentence of
imprisonment in an appropriate case.
[47] For these reasons we are satisfied that the Court of Appeal was right not to
accept the appellants argument that the mandatory death penalty was abolished in
1941. We reject as far-fetched and indeed more than a little patronising the implication

in the appellants submission that for the last sixty years the public, the legal profession,
the courts and the legislature of Trinidad and Tobago (not to mention past members of
this Board in, for instance, de Freitas v Benny (1975) 27 WIR 318 at 321) have all been
acting under a totally mistaken belief that the death penalty for murder was mandatory.
[48] Even the majority hesitate to affirm this. Instead they seek to rely on the fact that
s 68(2) is always speaking; s 10(1) of the Interpretation Act. We accept that s 68(2) is
of that character. We also accept the reasoning of Lord Wilberforce in his dissenting
speech in Royal College of Nursing of the United Kingdom v Department of Health and
Social Security [1981] AC 800 at 822:
Leaving aside cases of omission by inadvertence, this not being such a case,
when a new state of affairs, or a fresh set of facts bearing on policy, comes into
existence, the courts have to consider whether they fall within the parliamentary
intention. They may be held to do so if they fall within the same genus of facts as
those to which the expressed policy has been formulated. They may be held to do
so if there can be detected a clear purpose in the legislation which can only be
fulfilled if the extension is made. They may also be held to do so if there can be
detected a clear purpose in the legislation which can only be fulfilled if the extension
is made. How liberally these principles may be applied must depend upon the
nature of the enactment, and the strictness or otherwise of the words in which it has
been expressed.
That analysis was recently indorsed by the House of Lords in R (Quintavalle) v
Secretary of State for Health [2003] UKHL 13, [2003] 2 WLR 692. It has
292
frequently been applied. So, for instance, in R v Ireland [1998] AC 147 the House of
Lords held that in the light of contemporary medical knowledge recognisable psychiatric
illnesses fell within the phrase bodily harm in ss 20 and 47 of the Offences Against the
Person Act 1861, even though they would have been unknown to medical science when
the Act was passed. Similarly, in Fitzpatrick v Sterling Housing Association Ltd [2001] 1
AC 27 the House had to construe the term a member of the original tenants family in
para 3(1) of Sch 1 to the Rent Act 1977. It was accepted that, at the time when the
legislation was passed, the phrase would not have covered the same-sex partner of a
tenant. Nonetheless, since the term family had been left undefined, it was proper to
interpret it in the light of the social conditions today. On that basis, by a majority, the
House held that a same-sex partner should be regarded as a member of the original
tenants family for the purposes of para 3(1).
[49] The present case is entirely different, however. In 1941 the capital sentence was
just as much a penalty as it is today. The legislature would have been well aware of its
existence. No new state of affairs or new set of facts bearing on policy has come into
existence since 1941. The mere passage of time cannot change the meaning of
legislation. Therefore, if the expression any fixed penalty or fine in the 1941 Ordinance
was not intended to apply to the mandatory death penalty in s 4 of the 1925 Act, there is
no basis in the principle described by Lord Wilberforce for holding that the same
expression in s 68(2) of the Interpretation Act should be interpreted differently today and
held to apply to the death penalty.
[50] For all these reasons we reject the submission that the effect of s 68(2) of the

Interpretation Act is to convert the mandatory death penalty in s 4 of the 1925 Act into a
discretionary penalty.
[51] We turn therefore to Mr Fitzgeralds next submission. He argued that the
mandatory death penalty in s 4 of the 1925 Act constituted cruel and unusual
punishment in terms of s 5(2)(b) of the Constitution as set out in the Schedule to the
Constitution of the Republic of Trinidad and Tobago Act 1976 (the 1976 Act). Using the
power in s 5(1) of that Act, the court could therefore modify s 4 of the 1925 Act so as to
bring it into conformity with s 5(2)(b) of the Constitution. This was so despite s 6(1)(a) of
the Constitution which says that nothing in s 5(2)(b) is to invalidate a law, such as s 4,
which had effect immediately before the Constitution came into operation on 1 August
1976.
A digression on the reach of the offence of murder
[52] The Court of Appeal started its consideration of the appellants argument from the
premise established for it by the decision of the Board in Reyes v R [2002] UKPC 11, 60
WIR 42. It accepted that the mandatory death penalty constituted cruel and unusual
punishment and therefore was
293
prima facie inconsistent with, and an infringement of, the constitutional right not to
be deprived of life except by due process enshrined in s 4(a) of our Constitution, as
that right is particularised in s 5(2)(b).
On that basis, other things being equal, the mandatory death penalty in s 4 of the 1925
Act would be void by reason of s 2 of the Constitution. In his argument on behalf of the
State before the Board Sir Godfray le Quesne QC did not challenge that premise,
provided that s 5(2)(b) of the Constitution applied to s 4 of the 1925 Act. His submission
was that s 5(2)(b) did not apply in this way, however, since, by reason of s 6(1)(a),
nothing in s 5(2)(b) could invalidate an existing law such as s 4 of the 1925 Act. The
Court of Appeal accepted that argument. On behalf of the appellant Mr Fitzgerald
submitted, however, that s 6(1)(a) did not save s 4 of the 1925 Act. The principal task for
the Board is to decide between these rival submissions.
[53] Once the State had thus very properly conceded that only s 6(1)(a) stands
between the mandatory death penalty for murder in s 4 of the 1925 Act and its invalidity
in terms of s 2 of the Constitution, discussion of the reach of the offence of murder (and
hence of the mandatory death penalty) in the law of Trinidad and Tobago became
irrelevant to these proceedings.
[54] Indeed the point was never live in this particular case. The jury found that the
appellant shot a man who had come to steal marijuana that was being cultivated
illegally in Charuma Forest. When first seen, the appellant was sitting with a shot-gun in
his lap in a shelter at the marijuana field. An eye-witness gave evidence that, some time
later, the appellant aimed and fired the shot-gun at the deceased. A shot-gun was found
in the appellants home and there was evidence to link a cartridge case found at the
scene with that shot-gun. The appellant did not give evidence, but challenged the
credibility of the witnesses for the State. This was murder in anybodys money. It is
hardly surprising therefore that counsel for the appellant made no criticism of the scope

of the definition of murder as derived from s 3 of the 1925 Act. It was simply not an
issue.
[55] Despite this, the majority have gone out of their way to voice elaborate criticisms
of the definition of murder in the law of Trinidad and Tobago on the ground that it covers
a wide spectrum of cases of homicide, most of which would not be regarded as murder
in ordinary parlance. They have in effect transferred to the definition of murder in
Trinidad and Tobago the obiter criticisms to which Lord Steyn, supported by Lord Mustill,
subjected the equivalent definition in the law of England and Wales in R v Powell [1999]
1 AC 1 at 14 and 15. Those criticisms echoed earlier, long-standing, academic criticisms
of that definition. Despite all the criticisms, both academic and judicial, the Parliament of
the United Kingdom has not seen fit to change the law of England and Wales on the
point. For the foreseeable future, English law seems likely to remain the same as the
law of Trinidad and Tobago in these respects.
294
[56] The majority do not (indeed cannot) suggest that the width of the definition of
murder makes s 3 of the 1925 Act inconsistent with any provision of the Constitution
and so void. In these circumstances the width of the definition of murder is a matter for
Parliament and not for the courts. Mutatis mutandis, the proper role of the judiciary
when considering whether a law is consistent with the Constitution is to be found in the
well-known passage from the judgment of Lord Diplock in Hinds, Hutchinson, Martin,
Thomas v R (1975) 24 WIR 326 at 333:
in deciding whether any provisions of a law passed by the Parliament of
Jamaica as an ordinary law are inconsistent with the Constitution of Jamaica,
neither the courts of Jamaica nor their lordships Board are concerned with the
propriety or expediency of the law impugned. They are concerned solely with
whether those provisions, however reasonable and expedient, are of such a
character that they conflict with an entrenched provision of the Constitution ...
Since the majoritys criticisms of the definition of murder are irrelevant to the actual
issue before the Board, they merely risk obscuring it. We say no more about them for
fear of prolonging this digression and fogging the true issue still further.
[57] We agree with the majority that the appeal raises profoundly important questions
about the working of the present Constitution of Trinidad and Tobago (the Constitution).
Indeed they are important for other countries too. The Constitution belongs to the family
of Commonwealth Caribbean Constitutions. Although they are all different, they have
certain shared characteristics. In practice, therefore, the national courts, as well as the
Board, have found that interpretations worked out in the context of one Constitution will
often cast light on the position under another. This shared experience has enriched the
jurisprudence of all the Caribbean States. So, when we come to examine the provisions
of the Constitution of Trinidad and Tobago, we must not leave out of account the wider
insights into the working of these Constitutions which the courts have built up over many
years. To ignore them would be to risk distorting rather than applying the Constitution. It
would also risk creating uncertainty in the interpretation of other Constitutions.
[58] Although we are interpreting and applying the present Constitution, we must also
look at the original Constitution of Trinidad and Tobago, if only because the
interpretation favoured by the majority presupposes that in 1976, as well as changing

the country from a constitutional monarchy to a republic, Parliament fundamentally

altered at least one other aspect of its constitutional arrangements.
295
The 1962 Constitution
[59] In 1962 Trinidad and Tobago became independent from Britain. The new country
was a constitutional monarchy with Her Majesty the Queen as the Head of State. Its
Constitution (the 1962 Constitution) was set out in the Second Schedule to the Trinidad
and Tobago (Constitution) Order 1962. This Constitution was unusual in that the
provisions on human rights and fundamental freedoms were modelled not on the
European Convention but on the Canadian Bill of Rights 1960. This appears to have
come about as the result of objections that were taken by the Bar Association to the
original draft of the Constitution where the relevant rights and freedoms were set out in
much the same way as in the European Convention; Report of the Constitution
Commission of Trinidad and Tobago (1974), para 78. Naturally, the provisions as
eventually adopted were not a slavish copy of the Canadian legislation; see S A de
Smith, The New Commonwealth and its Constitutions (1964), 205 to 210.
[60] Section 4(1) of the Order provided:
Subject to the provisions of this section, the operation of the existing laws after
the commencement of this Order shall not be affected by the revocation of the
existing Order but the existing laws shall be construed with such modifications,
adaptations, qualifications and exceptions as may be necessary to bring them into
conformity with this Order.
Chapter I of the Constitution was concerned with The recognition and protection of
human rights and fundamental freedoms and comprised eight sections. Section 1, the
relevant part of which was copied from s 1 of the Canadian Bill of Rights, provided (inter
alia):
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 human rights and fundamental freedoms,
namely (a) the right of the individual to life, liberty, security of the person and
enjoyment of property and the right not to be deprived thereof except by due
process of law
Section 2 went on to say that:
Subject to the provisions of sections 3, 4 and 5 of this Constitution, no law shall
abrogate, abridge or infringe or authorise the abrogation, abridgment or
infringement of any of the rights and freedoms hereinbefore recognised and
declared and in particular no Act of Parliament shall (b) impose or authorise
the imposition of cruel and unusual treatment or punishment
Section 3(1) was in these terms:
296
Sections 1 and 2 of this Constitution shall not apply in relation to any law that is in

force in Trinidad and Tobago at the commencement of this Constitution.

[61] We pause to notice that nowhere in the 1962 Constitution does it say that the
Constitution is the supreme law of Trinidad and Tobago. Similarly, while s 2 says that no
law is to do certain things, it does not actually say what the consequences are to be if
those prohibitions are breached. In these respects it bears some resemblance to the
Canadian Bill of Rights. Interestingly enough, it was not until 1969 that the Supreme
Court of Canada finally decided that a law which could not be construed so that it did
not abrogate, abridge or infringe the relevant rights or freedoms in the Bill of Rights was
inoperative; R v Drybones [1970] SCR 282.
[62] The position under the 1962 Constitution can be contrasted, for instance, with the
position under the Constitution of Jamaica. Section 2 of that Constitution provides:
Subject to the provisions of sections 49 and 50 of this Constitution, if any other
law is inconsistent with this Constitution, this Constitution shall prevail and the other
law shall, to the extent of the inconsistency, be void.
[63] The clear effect of that provision is to make the Constitution the supreme law and
any other law is void in so far as it is inconsistent with the provisions of the Constitution.
Importantly, however, s 26(8) provides that:
Nothing contained in any law in force immediately before the appointed day shall
be held to be inconsistent with any of the provisions of this chapter; and nothing
done under the authority of any such law shall be held to be done in contravention
of any of these provisions.
Again, there is a difference between s 3(1) of the 1962 Constitution of Trinidad and
Tobago and s 26(8) of the Constitution of Jamaica. Whereas s 3(1) said that ss 1 and 2
shall not apply in relation to any existing law, s 26(8) picks up the language of s 2 of the
Jamaican Constitution and says that nothing contained in any existing law shall be held
to be inconsistent with any of the provisions of this chapter.
[64] In Director of Public Prosecutions v Nasralla (1967) 10 WIR 299, Lord Devlin had
to consider the effect of these provisions in the Constitution of Jamaica. He said (at pp
303, 304):
Whereas the general rule, as is to be expected in a Constitution and as is here
embodied in s 2, is that the provisions of the Constitution should prevail over other
law, an exception is made in Chapter III. This
297
chapter proceeds upon the presumption that the fundamental rights which it
covers are already secured to the people of Jamaica by existing law. The laws in
force are not to be subjected to scrutiny to see whether or not they conform to the
precise terms of the protective provisions. The object of these provisions is to
ensure that no future enactment shall in any matter which the chapter covers
derogate from the rights which at the coming into force of the Constitution the
individual enjoyed.
[65] Despite the differences in language and the absence of any section
corresponding to s 2 of the Jamaican Constitution, when called upon to interpret the
1962 Constitution of Trinidad and Tobago, the Board followed Lord Devlins reasoning.

They thus proceeded on the footing that, although this was not said expressly, s 2
meant that, subject to s 3, any law which contravened it was void. In de Freitas v Benny
(1975) 27 WIR 318 at 320 and 321, Lord Diplock said:
Chapter I of the Constitution of Trinidad and Tobago, like the corresponding
Chapter III of the Constitution of Jamaica (see Director of Public Prosecutions v
Nasralla), proceeds on the presumption that the human rights and fundamental
freedoms that are referred to in ss 1 and 2 are already secured to the people of
Trinidad and Tobago by the law in force there at the commencement of the
Constitution. Section 3 debars the individual from asserting that anything done to
him that is authorised by a law in force immediately before 31 August 1962,
abrogates, abridges or infringes any of the rights or freedoms recognised and
declared in s 1 or particularised in s 2.
Section 2 is not dealing with enacted or unwritten laws that were in force in
Trinidad or Tobago before that date. What it does is to ensure that subject to three
exceptions no future enactment of the Parliament established by Chapter IV of the
Constitution shall in any way derogate from the rights and freedoms declared in s 1.
The three exceptions are: Acts of Parliament passed during a period of public
emergency and authorised by ss 4 and 8; Acts of Parliament authorised by s 5 and
passed by the majorities in each House that are specified in that section; and Acts
of Parliament amending Chapter I of the Constitution itself and passed by the
majorities in each House that are specified in s 38.
The specific prohibitions upon what may be done by future Acts of Parliament set
out in paras (a) to (h) of s 2 and introduced by the words in particular, are directed
to elaborating what is meant by due process of law in s 1(a) and the protection of
the law in s 1(b). They do not themselves create new rights or freedoms additional
to those recognised and declared in s 1. They merely state in greater detail what
the rights declared in paras (a) and (b) of s 1 involve.
298
[66] In Ramesh Lawrence Maharaj v Attorney-General of Trinidad and Tobago (No 2)
(1978) 30 WIR 310 at 316 and 317, Lord Diplock confirmed how Chapter I of the 1962
Constitution was to be regarded:
In s 1 the human rights and fundamental freedoms which it is declared (by the
only words in the section that are capable of being enacting words),shall continue
to exist are those which are expressly recognised by the section to have existed
in Trinidad and Tobago. So to understand the legal nature of the various rights and
freedoms that are described in the succeeding paragraphs, paras (a) to (k), in
broad terms and in language more familiar to politics than to legal draftsmanship, it
is necessary to examine the extent to which, in his exercise and enjoyment of rights
and freedoms capable of falling within the broad descriptions in the section, the
individual was entitled to protection or non-interference under the law as it existed
immediately before the Constitution came into effect. That is the extent of the
protection or freedom from interference by the law that s 2 provides shall not be
abrogated, abridged or infringed by any future law, except as provided by s 4 or s 5.

What confines s 2 to future laws is that it is made subject to the provisions of s 3.

In view of the breadth of language used in s 1 to describe the fundamental rights
and freedoms, detailed examination of all the laws in force in Trinidad and Tobago
at the time the Constitution came into effect (including the common law so far as it
had not been superseded by written law) might have revealed provisions which (it
could plausibly be argued) contravened one or other of the rights or freedoms
recognised and declared by s 1. Section 3 eliminates the possibility of any
argument on these lines.
[67] Two things are clear. First, laws which were passed in contravention of ss 1 and 2
of the 1962 Constitution would be void just as they would be void under the
corresponding provisions of the Jamaican Constitution. Secondly, the rights in ss 1 and
2 were circumscribed by the existing laws of the country. Those laws were therefore not
to be called into question. This had the advantage of making for stability. But, much
more importantly, these laws were secured in order to define the scope and limits of the
rights, some of which were declared in very broad terms. In 1974, in paras 79 and 80 of
their report to which we were not referred by counsel, the Constitution Commission
explained the thinking behind this aspect of the 1962 Constitution:
79. In so doing, the present Constitution adopted an approach which reflects the
thinking in the United Kingdom. There, no written Constitution exists and all
individual rights have their roots in the common law. These rights may be defined as
the area of permissible activity when all the laws restricting the individual have been
taken into
299
account. Thus freedom of thought and expression have always existed in Trinidad
and Tobago. But everyone knew without its being explicitly stated that this freedom
was subject, among other restraints, to the law of libel and slander, to the Sedition
Ordinance of 1920, to the laws against obscenity and blasphemy, to the prohibition
against publishing reports of the proceedings at preliminary inquiries into indictable
offences and to the power of Government to ban the importation of literature which
it considered subversive.
80. This result was achieved in our present Constitution by the expedient of s 3
which in a comprehensive provision made all the declared rights and freedoms
subject to all the laws in force in Trinidad and Tobago at its commencement. Also,
because there was from that time onwards to be a written Constitution,
guaranteeing those rights and freedoms from abridgment or infringement, provision
had to be made for validating future laws which might appear in any respect
whatever to be in breach of that guarantee. Hence s 5 with its safeguards both of
an affirmative vote by a special majority and if shown not to be reasonably
justifiable in a society that has a proper respect for the rights and freedoms of the
individual. The effect was indeed to produce a brief and apparently simple
statement of rights and freedoms. But the brevity and apparent simplicity were
misleading. Many people were shocked to find out that rights and freedoms set out
in absolute terms were subject to important limitations the extent of which was
nowhere defined. This led some people to wonder, perhaps cynically, whether there
was any meaning to these rights and freedoms at all.

[68] The Constitution Commission went on in the next paragraph to criticise the
situation in which Parliament could pass laws that were to have effect despite the
absolute nature of the fundamental rights as set out in the 1962 Constitution. Even
though the Constitution Commission might come to regard it as defective, this was the
constitutional scheme that the representatives of Trinidad and Tobago chose to adopt
when their country became independent. Other countries adopted different schemes;
some conferred no protection on existing laws, some protected existing laws from
challenge only for a limited period, while others saved existing laws from challenge only
in respect of a limited number of rights and freedoms. It must be presumed that those
different schemes met local wishes and conditions.
[69] In de Freitas v Benny (1975) 27 WIR 318, the Board held that s 3 of the 1962
Constitution prevented any challenge to existing laws based on ss 1 and 2. Mr
Fitzgerald accepted that this decision was correct because s 3 of the 1962 Constitution,
which said that ss 1 and 2 shall not apply in relation to any existing law, constituted a
shut out. From this concession it follows that s 4(1) of the 1962 Order could not be
used to modify any existing law so as to bring it into conformity with ss 1 and 2 of the
1962 Constitution. Mr Fitzgerald contended, however, that s 3 of
300
the 1962 Constitution was to be contrasted with the equivalent, but differently worded,
s 6(1)(a) of the present Constitution. Unlike s 3 of the old Constitution, s 6(1)(a) was no
barrier to using s 5(1) of the 1976 Act to modify existing legislation.
The present Constitution
[70] In the 1970s it was decided that Trinidad and Tobago should have a new
Republican Constitution, with a President rather than the Queen as Head of State. To
help prepare the new Constitution, the Governor-General appointed the Constitution
Commission, to which we have already referred. As we have noted, the Constitution
Commission was critical of the scheme of rights and freedoms in the 1962 Constitution
that had been based on the Canadian model. It therefore recommended, in para 82 of
its report, that the new Constitution should reverse the decision taken in 1962 and
should adopt the pattern of the European Convention on Human Rights. This would
bring Trinidad and Tobago into line with other Commonwealth Caribbean Constitutions.
It appended a draft Constitution which would have carried this recommendation into law.
Notably, that draft contained no savings clause for existing laws. As the Commission
explained in para 86 of its report:
We have not included in the draft any clause preserving existing legislation.
Where an existing law abridges or infringes a fundamental right, its validity will
depend on its falling within one or other of the permitted exceptions and also on its
satisfying the test of what is reasonably justifiable in a society with a proper respect
for the rights and freedoms of the individual.
[71] For reasons that are not clear, the Constitution Commissions recommendations
were not adopted. In 1976 Parliament enacted the present Constitution and Trinidad
and Tobago passed from being a constitutional monarchy with the Queen as the Head
of State to being a republic with the President as the Head of State. Many of the

alterations introduced by the new Constitution were simply designed to make this
change. Similarly, much of the 1976 Act is concerned to ensure a seamless transition to
a republic by translating references which were appropriate under the old Constitution to
references that are appropriate under the new Constitution. This is indeed part of the
function of s 5(1) of the 1976 Act which is, in substance, identical to s 4(1) of the 1962
Order:
Subject to the provisions of this section, the operation of the existing law on and
after the appointed day shall not be affected by the revocation of the Order-inCouncil of 1962 but the existing laws shall be construed with such modifications,
adaptations, qualifications and exceptions as may be necessary to bring them into
conformity with this Act.
301
A similar formula is to be found in s 20 of the 1976 Act, dealing with the standing orders
of the Senate and House of Representatives.
[72] A comparison of the texts of the two Constitutions shows, however, that in 1976
the opportunity was indeed taken to make some alterations that went beyond converting
the country from a constitutional monarchy to a republic. In particular, unlike the 1962
Constitution, the present Constitution begins with three sections under the heading
Preliminary. Among them is s 2 which provides:
This Constitution is the supreme law of Trinidad and Tobago, and any other law
that is inconsistent with this Constitution is void to the extent of the inconsistency.
Parliament thus took the opportunity to insert into the 1976 Constitution a provision,
similar to s 2 of the Jamaican Constitution and to equivalent sections in other
Constitutions, which defines the status of the Constitution as the supreme law and
declares expressly that any law which is inconsistent with the Constitution is void to the
extent of the inconsistency. This section in effect spelled out what the Board had
assumed to be the position in de Freitas v Benny (1975) 27 WIR 318, following the
approach in Director of Public Prosecutions v Nasralla (1967) 10 WIR 299. A few years
later, s 52(1) of the Canadian Constitution Act 1982 contained a similar provision and so
made it plain that, in Canada too, the new Constitution was to be regarded as supreme.
[73] But beyond that, the alterations are relatively minor. Above all, the rights and
freedoms in the new Constitution are not modelled on the European Convention; they
adhere to the scheme in the 1962 Constitution. As we saw, that scheme only worked
because there was a savings clause that preserved existing laws and so defined the
scope of the rights and freedoms that were expressed in absolute terms in that
Constitution. Since the same scheme was being followed in the new Constitution, there
would be the same need to include a savings clause. And that is what we find.
[74] After the preliminary sections comes Chapter 1, with the title The Recognition
and Protection of Fundamental Human Rights and Freedoms, very similar to the title of
Chapter I of the 1962 Constitution. Part 1 of Chapter 1 is headed Rights Enshrined and
comprises ss 4 and 5. They correspond to ss 1 and 2 of the 1962 Constitution and are
designed to enshrine certain rights. Section 4 (inter alia):
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 rights and freedoms, namely (a)
the right of the individual to life, liberty, security of the person and enjoyment of
property and the right not to be deprived thereof except by due process of law ...
302
So far as relevant, s 5 then says:
(1) Except as is otherwise expressly provided in this chapter and in section 54, no
law may abrogate, abridge or infringe or authorise the abrogation, abridgement or
infringement of any of the rights and freedoms hereinbefore recognised and
declared.
(2) Without prejudice to subsection (1), but subject to this chapter and to section
54, Parliament may not - (b) impose or authorise the imposition of cruel and
unusual treatment or punishment
In Part 2 of Chapter 1, which the heading tells us is intended to introduce exceptions for
existing law, we find s 6(1) in these terms:
Nothing in sections 4 and 5 shall invalidate (a) an existing law;
(b) an enactment that repeals and re-enacts an existing law without alteration; or
(c) an enactment that alters an existing law but does not derogate from any
fundamental right guaranteed by this chapter in a manner in which or to an extent to
which the existing law did not previously derogate from that right.
This is plainly intended to be the savings clause that will perform the same necessary
function under the new Constitution as s 3 performed under the 1962 Constitution.
[75] The argument for the appellant, which the majority have accepted, is, however,
that, by replacing the shut out provision in s 3 of the 1962 Constitution with this
provision, Parliament adopted a more open-textured scheme in relation to existing laws
and so opened the door to the interpretation which they have adopted.
The approach to interpretation
[76] In our view, the interpretation favoured by the majority is not only untenable but
liable to subvert the operation of the Constitution. In Pinder v R [2002] UKPC 46, 61
WIR 13 at p 20, para [15], Lord Millett described the essential nature of a Constitution
and the role of the judges when interpreting it. He said:
A Constitution is an exercise in balancing the rights of the individual against the
democratic rights of the majority. On the one hand, the fundamental rights and
freedoms of the individual must be entrenched against future legislative action if
they are to be properly protected; on the other hand, the powers of the legislature
must not be unduly circumscribed if the democratic process is to be allowed its
proper scope. The balance is drawn by the Constitution. The judicial task is to
303
interpret the Constitution in order to determine where the balance is drawn; not to
substitute the judges views where it should be drawn.

Although he was referring in particular to the Constitution of the Bahamas, his words are
equally applicable to the Constitutions of other countries, including Trinidad and Tobago.
[77] In this case, as in any other, when construing the relevant provisions we, of
course, bear in mind the injunction of Lord Wilberforce in Minister of Home Affairs v
Fisher (1978) 44 WIR 107 at 112 that provisions such as those to be found in Chapter 1
of the Constitution
call for a generous interpretation avoiding what has been called the austerity of
tabulated legalism, suitable to give to the individuals the full measure of the
fundamental rights and freedoms referred to.
But we do not overlook, either, his equally important statement (at p 113) that:
Respect must be paid to the language which has been used and to the traditions
and usages which have given meaning to that language. It is quite consistent with
this, and with the recognition that rules of interpretation may apply, to take as a
point of departure for the process of interpretation a recognition of the character
and origin of the instrument, and to be guided by the principle of giving full
recognition and effect to those fundamental rights and freedoms with a statement of
which the Constitution commences.
In order to achieve the proper interpretation, respect for the language of the Constitution
and for the traditions and usages that have given it meaning must march hand in hand
with the principle of giving full recognition and effect to the fundamental rights and
freedoms which it enshrines. This is only to reiterate what Lord Bingham of Cornhill said
in Reyes v R (2002) 60 WIR 42 at p 55, para [26]:
As in the case of any other instrument, the court must begin its task of
constitutional interpretation by carefully considering the language used in the
Constitution. But it does not treat the language of the Constitution as if it were found
in a will or a deed or a charterparty. A generous and purposive interpretation is to be
given to constitutional provisions protecting human rights. The court has no licence
to read its own predilections and moral values into the Constitution
The Board pointed out in Pinder v R (2002) 61 WIR 13 at p 19, para [14], that, if a court
indulges itself by straining the language of the Constitution to accord with its own
subjective values, then as Holmes J said in Otis v Parker, 187 US 606 at 609 (1903)
304
A Constitution, instead of embodying only relatively fundamental rules of right, as
generally understood by all English-speaking communities, would become the
partisan of a particular set of ethical or economical opinions ...
Section 6(1)(a) interpreted
[78] The majority are, of course, correct to notice the change in the wording between
s 3 of the 1962 Constitution and section 6(1)(a) of the present Constitution. But the
significance of that change has to be gauged both in the context of the Constitution as a
whole and in the context of another change, the insertion of s 2. As the Court of Appeal

rightly said, it is the introduction of s 2 which has brought about the change of approach
that is to be seen in s 6(1)(a). Since s 2 now spells out that an inconsistency with a
provision of the Constitution makes the offending law to that extent void, it was only
natural for the draftsman of s 6(1)(a) to reflect that approach. To see how he did this, it
is necessary to tease out the meaning of both invalidate and law in s 6(1)(a).
[79] It is no surprise to find that, according to The Oxford English Dictionary, one of
the meanings of to invalidate is to make null and void. Section 6(1)(a) can therefore
properly be understood to say that nothing in ss 4 and 5 shall make any existing law
void. The draftsman is proceeding on the basis that, in other circumstances, ss 4 and 5
of the Constitution can have the effect of making laws void. And, if one asks how it
comes about that these sections can make a law void, then s 2 provides the answer:
under it, any law that is inconsistent with the Constitution is void to the extent of the
inconsistency. So a law that is inconsistent with ss 4 and 5 is void to the extent of the
inconsistency with those sections. In that context s 6(1)(a) clearly means that s 2 is not
to make any existing law void by reason of being inconsistent with ss 4 and 5.
[80] Leaving aside the common law, s 3(1) of the Constitution defines the term law as
including any enactment. The term enactment is apt to cover not only an Act but any
legal proposition contained in a section or part of a section of an Act; Bennion, Statutory
Interpretation, 337 to 340. So an existing law for these purposes may be an Act or a
section or part of a section; Wakefield and District Light Railways Co v Wakefield
Corporation [1906] 2 KB 140 at 145 and 146, per Ridley J. It follows that s 2 means that
any legal proposition in a statute is void to the extent that it is inconsistent with the
Constitution. Equally, under s 6(1)(a) no legal proposition in an existing statute is to be
void by reason of being inconsistent with ss 4 and 5 of the Constitution. Any legal
proposition or enactment which is not void by reason of inconsistency with the
Constitution is valid so far as the Constitution is concerned.
[81] The expression existing law in s 5(1) of the 1976 Act has the same meaning as
in s 6(1)(a) of the Constitution; s 2 of the 1976 Act.
305
Section 4 of the 1925 Act valid
[82] As the majority accept, prior to the present Constitution coming into effect in
1976, s 4 of the 1925 Act was valid under the 1962 Constitution. Section 4 is
unquestionably an existing law both in terms of s 6(1)(a) of the Constitution and in
terms of s 5(1) of the 1976 Act. Therefore nothing in s 4 or s 5 is to make the enactment
or legal proposition in s 4 of the 1925 Act void under the Constitution. So that enactment
or legal proposition is valid under, and conforms to, the Constitution. In these
circumstances the power under s 5(1) of the 1976 Act to modify s 4 so as to bring it into
conformity with the Constitution does not come into play. Section 4 of the 1925 Act is,
quite simply, a constitutionally-valid law of Trinidad and Tobago which binds this Board
just as surely as it binds the national courts.
The approach of the majority
[83] The majority have reached the opposite conclusion only by adopting a
construction of s 5(1) of the 1976 Act that first surfaced in Mr Fitzgeralds fall-back

argument in Director of Public Prosecutions v Mollison [2003] UKPC 6, 64 WIR 140 at p

155, para [18]. The Board did not need to reach a view on it but Lord Bingham of
Cornhill recorded (at p 156, para [19]) that they had given anxious consideration to what
he described as this ingenious argument. Having examined the argument, we regret
that we find it utterly unconvincing: it is not only inconsistent with a long line of
authorities but uses s 5(1) of the 1976 Act to distort s 6(1)(a) of the Constitution and
empty it of all meaningful content.
[84] If we understand their approach correctly, the majority say that where a provision,
such as s 4 of the 1925 Act, is challenged by reference to ss 4 and 5 of the Constitution,
the first stage is to determine (without holding that it is void under the Constitution)
whether the provision can be modified under s 5(1) of the 1976 Act, by reading down,
reading in, or severance, so as to render the words of the provision in conformity with
the Constitution. Section 6 comes into operation only in those cases where it has
proved impossible to modify the provision in any of these ways. Then, it is said, s 6
steps in to prevent the law from being invalidated completely by s 2.
[85] By starting with s 5(1) of the 1976 Act the majority set off from the wrong place.
The supreme law of Trinidad and Tobago is not to be found in the 1976 Act but in the
Constitution contained in the Schedule to that Act. This is stated specifically both in s 2
of the Constitution and in s 3 of the 1976 Act. It is the Constitution which controls other
laws. Anything done under s 5(1) of the 1976 Act is purely consequential on the
operation of the Constitution. By first relying on s 5(1) of the 1976 Act and then
purporting to interpret s 6(1)(a) of the Constitution so as to fit in with their interpretation
of that section, the majority proceed back to front.
306
Section 5(1) examined
[86] This becomes even clearer when the terms of s 5(1) are examined. As they show,
the starting-point for modifying any law under s 5(1) is that the law is not in conformity
with the 1976 Act and requires to be brought into conformity. Contrary to what the
majority say, therefore, the first stage in all cases must be to determine whether the
existing law is in conformity with the 1976 Act: not with ss 4 and 5 of the Constitution
when read in isolation but with all the relevant provisions of the Act and, more
particularly, with all the relevant provisions of the Constitution, including s 6(1)(a). If it
turns out that the law is, to a greater or lesser degree, not in conformity with the
Constitution, then the duty of the court is to read it with such modifications, etc as may
be necessary to make it conform. When that process has been carried out, the existing
law will conform to the Constitution. There is nothing further to be done. That approach
applies across the board, whatever provision of the Constitution is in play.
[87] Not only is this the plain meaning of the words of s 5(1) but it is the meaning that
has been attributed to the equivalent provisions in many Constitutions over many
decades. The settled case-law shows that s 5(1) comes into play only once the court
has held that an existing law is inconsistent, or incompatible, with the Constitution. It
also shows that the wording of s 5(1) gives the courts a power to bring legislation into
conformity with the Constitution which far exceeds any power of mere construction and
amounts to a power of amendment.

[88] So far as the first of these matters is concerned, we cite only a few examples. We
start more than forty years ago with the decision of the Board when applying art 162(1)
of the Constitution of the Federation of Malaya in Kanda v Government of the
Federation of Malaya [1962] AC 322. Lord Denning said (at p 333):
If there was in any respect a conflict between the existing law and the
Constitution then the existing law would have to be modified so as to accord with
the Constitution.
A little later he observed (at p 334) that:
In a conflict of this kind between the existing law and the Constitution, the
Constitution must prevail. The court must apply the existing law with such
modifications as may be necessary to bring it into accord with the Constitution.
Jumping over the intervening years, we pick out Browne v R (1999) 54 WIR 212.
Dealing with para 2(1) of Sch 2 to the St Christopher and Nevis Constitution Order
1983, Lord Hobhouse of Woodborough said (at p 218) that the court is to
307
identify the element of unconstitutionality in the relevant statutory provision and
then to consider what change is necessary to give effect to the requirements of the
Constitution and the appellants constitutional rights.
Similarly, last year in R v Hughes (2002) 60 WIR 156 at p 225, paras [48] and [50], the
Board first identified the extent to which the provision for the mandatory death penalty in
s 178 of the Criminal Code was inconsistent with s 5 of the Constitution of St Lucia and
so was void by virtue of s 120 of the Constitution. Only after that did the Board (at pp
225, 226, para [51] ) use its power under para 2(1) of Sch 2 to the St Lucia Constitution
Order 1978 to bring s 178 of the Criminal Code into conformity with the Constitution by
modifying s 1284 of that Code. Indeed the Board did not even mention para 2(1) until it
had first reached its conclusion that s 178 of the Criminal Code was void to a certain
extent. Precisely the same approach was adopted in Fox v R (No 2) [2002] UKPC 13,
61 WIR 169 at p 172 and p 173, paras [10] and [11].
[89] So far as the breadth of the courts powers under s 5(1) is concerned, we could
not hope to better the survey of the case-law by de la Bastide CJ giving the judgment of
the Court of Appeal in this case. There is no sign in the cases that a court has ever in
practice found it impossible to bring an existing law into conformity with a Constitution
by using this power. Indeed, when, on an isolated occasion, the Court of Appeal of the
West Indies Associated States decided that their power was not adequate to the task,
the Board promptly reversed it; Attorney-General of St Christopher, Nevis and Anguilla v
Reynolds (1979) 43 WIR 108. In our view therefore the courts power under s 5(1) is
wide enough to enable it to remove any inconsistency with the Constitution that may be
found in an enactment.
The majoritys approach to s 5(1)
[90] Without even mentioning these settled tracts of authority, the majority have now
adopted a construction of s 5(1) of the 1976 Act which is not only inconsistent with them

but makes a nonsense of them. According to the majority, a court can use the power in
s 5(1) of the 1976 Act so as to bring s 4 of the 1925 Act into conformity with s 5(2)(b) of
the Constitution without first considering whether s 4 is actually inconsistent with the
Constitution taken as a whole. They thus skip over that initial step which the cases, as
well as the words of s 5(1), show is necessary; but which would be fatal to the
appellants argument in the present case. Ignoring all the other provisions of the
Constitution, they fasten on to s 5(2)(b) and claim to be able to use the power in s 5(1)
of the 1976 Act to modify s 4 of the 1925 Act so as to make it conform with s 5(2)(b) but
without first holding that it is void.
[91] On the approach of the majority there is what they describe, with considerable
restraint, as a potential tension between s 5(1) of the 1976
308
Act and s 6(1)(a) of the Constitution. On the approach that we favour, there is no
tension between the two sections. Nor are the majority right to suggest that our
interpretation leaves only a minimal scope for the operation of s 5(1); just like its
predecessor, s 4(1) of the 1962 Order, it operates so as to bring existing laws into
conformity with all those provisions of the Constitution to which the sovereign
Parliament of the country has made them subject. And the majority accept indeed that
this was the position under the 1962 Order. But if, as they concede, the majoritys
interpretation does give rise to tension between s 5(1) and s 6(1)(a), the Constitution is
the supreme law and so that tension must be resolved by reading s 5(1) of the 1976 Act
in the light of s 6(1)(a) of the Constitution. The majority do precisely the reverse; they
adopt a construction of s 5(1) that robs s 6(1)(a) of all viable content. If, as they hold, a
court can begin by construing existing laws with any modification, etc necessary to bring
them into conformity with any of the provisions of ss 4 and 5, then at the end of that
process the laws will indeed conform to them. Despite this, the majority suggest there
may be laws which are irremediable by resort to modification. In that event, they say, s
2 renders the provision void unless it is saved in respect of s 4 or s 5 non-conformity by
s 6. In other words, the function of s 6(1)(a) is to save laws which cannot be effectively
modified by s 5(1).
[92] The majority thus suppose that, by enacting s 6(1)(a), Parliament intended to
open up all the existing laws to modification under s 5(1) so as to make them conform to
the rights set out in ss 4 and 5. But, with studied and unexampled cynicism, Parliament
simultaneously excluded from the new regime those laws which are so wholly
inconsistent with ss 4 and 5 that they cannot be successfully modified. In AttorneyGeneral of St Christopher, Nevis and Anguilla v Reynolds (1979) 43 WIR 108 at 117
Lord Salmon said of a similar provision in the Constitution of St Christopher, Nevis and
Anguilla:
If the Court of Appeal were right in concluding that no modification or adaptation
or qualification or exception could bring the Order in Council into line with the
Constitution, then they would have been plainly right in holding that the Order in
Council was nugatory and the Emergency Powers Regulations 1967 invalid.
So, on the approach of the majority, it must be supposed that Parliament enacted s 6(1)
(a) to secure just the reverse of this approach which the Board had thought plainly
right; instead of providing that laws which could not be modified should be invalid,

Parliament singled them out from all the other existing laws and decreed that they alone
were to enjoy a continued, unchanged, life under the Constitution. The worse the
incompatibility with the Constitution, Parliament supposedly declared, the less the
chance of having it put right. We need hardly say that the majority have produced
nothing to suggest that Parliament ever
309
contemplated adopting such a perverse, not to say outrageous, policy. In the absence of
a clear indication that it did, a court should not attribute such an intention to Parliament,
especially when another, straightforward, interpretation of the words of s 6(1)(a) is
available.
[93] Indeed, such indications as there are of Parliaments intention in enacting s 6 of
the Constitution confirm that straightforward interpretation. According to the Official
Report of the debate in the Senate on 23 March 1976, in reply to a proposal to amend cl
6, Senator Prevatt, speaking for the Government, said this:
Maybe I should explain what the provisions which we have here are intended to
achieve. We have existing laws which I suppose we will all agree should be saved.
We must have some laws with which we could go into the new Constitution. So we
agreed that laws we have should be saved. If we save the laws, what we are saying
is that if we re-enact it without alteration, more or less, it is the same law, then it will
remain valid. If the laws in any way derogate from any rights as you have it now
[existing law], then provided you do not go and derogate any further it will remain
there. This is the intention we have in cl 6(1). Now cl 6(2) was redrafted because
the lawyers felt that if you went and you changed the law and you derogated further
than the previous law, it might be found that you did something that was invalid in
the sense of the additional derogation. So what they were trying to do was to say,
all right, in that case your additional derogation will remain valid. These were the
intentions we had; nothing more than that. As to whether the amendment, as
proposed by Senator Capildeo, will achieve that, I do not know. I was just asking my
adviser whether it would. Now he tells me this will not achieve this and I was just
about asking what will it achieve when I was asked to make some statement on the
matter. As I say, I hope Senators will bear with me. I am not a lawyer so I must get
advice on these matters.
While Senator Prevatts answer may not have been couched in precise legal language,
its import is clear; s 6 was intended to save existing laws and laws that were in
substance re-enactments of those laws. There is not a hint of any intention to introduce
a less rigorous form of protection (which, as we have pointed out, would have been
contrary to the thinking behind the savings clause with this scheme of rights and
freedoms). Nor is there any hint of an intention to produce the effect brought about by
the interpretation of the majority.
[94] Moreover, if the majoritys approach to the interpretation of s 5(1) and s 6(1)(a) is
right, then as recently as last year in R v Hughes (2002) 60 WIR 156 at 209 the Board
wasted its time analysing the precise scope of para 10 of Sch 2 to the St Lucia
Constitution Order; it should have cut to the chase and immediately used the power in
para 2(1) to modify s 178 of the Criminal Code on the basis that the mandatory death
penalty

310
constituted inhuman or degrading punishment in terms of s 5 of the Constitution of St
Lucia. They were equally slow in the uptake in Fox v R (No 2) (2002) 61 WIR 169. The
reasoning in these and all similar cases can now be safely ignored: even where it lies
outside the Constitution, in future a provision such as s 5(1) will virtually eliminate any
provision in the Constitution that is designed to safeguard existing laws. The stability
and the fixed points in the legal landscape, and the qualifications to the rights and
freedoms, which it was hitherto thought that s 6(1)(a) of the Constitution had secured,
are now in peril of attack. Mutatis mutandis, the same applies to other Caribbean
Constitutions.
[95] Ironically, while claiming that their construction of s 5(1) has the merit of giving a
generous interpretation to s 5, the majority actually impose a hitherto unheard-of
restriction on its scope by holding that, despite the experience in practice, there is some
kind of existing law which is incompatible with the Constitution but which cannot be
brought into conformity with it under s 5(1). The majority do not explain how this comes
about, given the terms of s 5(1) and the way the courts have interpreted the subsection.
The only hint that they give is to say that their interpretation of s 5(1) and s 6(1)(a)
would not warrant a challenge to the death sentence as such. But the impossibility of
challenging the death sentence cannot result from any limitation that is inherent in their
interpretation of the two sections. If the death penalty were indeed a cruel and unusual
treatment or punishment in terms of s 5(2)(b) of the Constitution, then on the majoritys
reasoning it would certainly be open to a court to modify any relevant statutory provision
by, for instance, substituting a sentence of imprisonment, so as to make it conform with
that right under the Constitution. Section 6(1)(a) would not come into play. Therefore, if
the majority consider that the death penalty would escape challenge, it can only be
because they accept that, by reason of s 4(a), s 5(2)(b) is not intended to catch the
death penalty as such. This would, of course, be in line with the underlying assumption
in both Reyes v R (2002) 60 WIR 42 at pp 47, 48, para [7] and R v Hughes (2002) 60
WIR 156 at pp 221, 222, para [41].
The majoritys references to other Constitutions
[96] The majority permit themselves to note that the two-stage interpretative process
which they envisage would operate in a broadly similar fashion to the obligation of
reading down provisions in the Bills of Rights of Canada, New Zealand and South
Africa. A glance at the relevant constitutional provisions and cases shows, however, that
they do not support the majoritys interpretation of s 5(1) and s 6(1)(a).
[97] For Canada, the majority cite Schachter v Canada [1992] 2 SCR 679 at 695 and
696. There, however, Lamer CJ was discussing the possibility of using the technique of
reading down where the court had already found that a provision was inconsistent with
the provisions of the
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Constitution under s 52(1) of the Constitution Act 1982. As he went on to say (at p
702)
the first step in choosing a remedial course under s 52 is defining the extent of

the inconsistency which must be struck down.

That is precisely the approach which we favour and the majority eschew in applying s
5(1) in the present case.
[98] For South Africa, the majority cite The State v Manamela 2000 (3) SA 1 which
concerned the constitutionality of a reverse onus provision in a statute. The
Constitutional Court first decided, at para 51, that the provision infringed the
presumption of innocence under s 35(3)(h) of the Constitution of the Republic of South
Africa 1996. Having done so, they then went on to consider the appropriate remedy
under s 172(1) of that Constitution. In terms of s 172(1)(a) a court deciding a
constitutional matter must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency. So any other remedy
presupposes that the law in question has been held to be inconsistent with the
Constitution and so to be void. The Constitutional Court duly made such a declaration in
Manamelas case (para 59). Section 172(1)(b) provides that the court may make any
order that is just and equitable .... Applying that provision, the Constitutional Court held
(at para 57):
Reading down, reading in, severance and notional severance are all tools that
can be used either by themselves or in conjunction with striking out words in a
statute for the purpose of bringing an unconstitutional provision into conformity with
the Constitution, and doing so carefully, sensitively and in a manner that interferes
with the legislative scheme as little as possible and only to the extent that is
essential. [emphasis supplied]
In the context of para 57 the words in italics show beyond a peradventure that the
approach of the Constitutional Court supports the approach to s 5(1) which we adopt
and contradicts the position of the majority.
[99] Section 6 of the New Zealand Bill of Rights Act 1990 provides:
Wherever an enactment can be given a meaning that is consistent with the rights
and freedoms contained in this Bill of Rights, that meaning shall be preferred to any
other meaning.
In relation to this section in Moonen v Film and Literature Board of Review [2000] 2
NZLR 9 at p 16, para 17, the Court of Appeal of New Zealand held that, when
considering any provision
312
If more than one meaning is available, the second step is to identify the meaning
which constitutes the least possible limitation on the right or freedom in question. It
is that meaning which s 6 of the Bill of Rights, aided by s 5, requires the court to
adopt.
This approach, which Tipping J thought courts might find useful, has something in
common with the one favoured by the majority. Two points have to be noticed, however.
First, and most importantly, the New Zealand Bill of Rights could not be more different in
conception and effect from the Constitution of Trinidad and Tobago and the 1976 Act. In
particular, s 4 of the New Zealand Bill of Rights is designed to prevent courts from
holding that legislation is invalid or ineffective, whereas s 2 of the Constitution is

designed to have precisely the opposite effect. Section 5(1) of the 1976 Act works within
that context and gives the courts power of a quite different order from the power that is
considered appropriate for the courts in New Zealand. For that reason their approach to
the interpretation of legislation affords no sound guide to the interpretation of s 5(1).
Secondly, in any event, the interpretation of s 6 of the Bill of Rights which Tipping J said
courts might find helpful was called into question at a later stage in the same litigation;
Moonen v Film and Literature Board of Review [2002] 2 NZLR 754. The Court of Appeal
declined the Solicitor-Generals invitation to re-open the matter in those proceedings,
but Richardson P acknowledged (at pp 759, 760, para 13) that:
it is a complex question. Arguably the answer is context- dependent and would
require extensive consideration of the application of s 5 in relation to various
provisions of the Bill of Rights as well as of s 14, which was the immediate subject
of the discussion in Moonen 1 [[2002] 2 NZLR 9].
He went on (at p 760, para 15) to emphasise that the approach commended in the
earlier judgment was not intended to be prescriptive. It might be helpful but other
approaches were open. For present purposes it would be unsafe to build an argument
on such a foundation.
[100] The majority also cite the approach in ss 3 and 4 of the United Kingdom Human
Rights Act 1998. Section 3 says that, so far as it is possible to do so, legislation must
be read and given effect in a way which is compatible with the Convention rights
scheduled to that Act. Taken together, ss 3 and 4 of the Human Rights Act specifically
contemplate that it may not be possible to read and give effect to legislation compatibly
with the Convention and say what a higher court may do in that eventuality. By contrast,
s 5(1) of the 1976 Act contemplates the existing laws being construed with the
modifications, etc that are necessary to bring them into conformity with its provisions.
Parliament apparently does not envisage that there will be an existing law that is not in
conformity with the 1976 Act and yet cannot be construed in such a way
313
as to bring it into conformity. Rather, existing laws are to survive but to conform to the
Constitution, if need be after the necessary modification. Precisely because of this, as
the cases show, the courts have repeatedly felt able to go far beyond mere
interpretation and have in effect amended the existing laws where that has been
necessary to make them conform to the Constitution. R v Hughes and Fox v R are only
the most recent examples. The two-stage approach envisaged by the majority is
inconsistent with that scheme.
The international obligations of Trinidad and Tobago
[101] In para [26] of their advice the majority argue that so far as possible the
Constitution should be interpreted so as to conform to the international obligations of
Trinidad and Tobago. We are prepared to assume, for the reasons explained by the
majority, that at the relevant time the mandatory death penalty was inconsistent with
Trinidad and Tobagos obligations under the American Convention on Human Rights
1969. We also assume that it is inconsistent with Trinidad and Tobagos obligations
under the American Declaration of the Rights and Duties of Man (1948). These

assumptions do not make any difference to the interpretation of the provisions of the
Constitution which we have to apply in this case.
[102] The only provision to whose interpretation those international obligations might
have relevance is s 5(2)(b), preventing cruel and unusual punishments. But the
interpretation of that provision is not in dispute since Sir Godfray le Quesne accepts that
the mandatory death penalty in s 4 of the 1925 Act would infringe that right, if the right
applied to existing laws. On the other hand, s 6(1)(a), the provision of the Constitution
on which this appeal turns, is of general application; it covers all the various rights in ss
4 and 5. It makes no mention of the death penalty. The international obligations of
Trinidad and Tobago in relation to the death penalty are therefore not a consideration
which can affect its interpretation, or indeed the interpretation of the equally general s
5(1) of the 1976 Act. In any event, as we have explained, we do not consider that it is
actually possible to interpret s 6(1)(a) in such a way as to allow the appellant to rely on s
5(2)(b). In these circumstances any obligation to interpret the Constitution, so far as
possible, so as to conform to the countrys international obligations would not bite.
Summary of our conclusions on s 6(1)(a) of the Constitution
[103] For all these reasons we are unable to accept the interpretation of s 5(1) of the
1976 Act and s 6(1)(a) of the Constitution which the majority favour. In our view, their
approach does not do justice to the plain words of these provisions. Moreover, it is
contrary to
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well-established authority which cannot be ignored and from which the Board could
properly depart, if at all, only after the most careful consideration, perhaps by an
enlarged Board, of all the implications for the future application of savings clauses in the
Caribbean Constitutions. We consider that s 6(1)(a) is there, for sound reasons, to
prevent existing laws being held void under s 2 of the Constitution by reference to the
rights in ss 4 and 5. That being so, s 4 of the 1925 Act cannot be invalidated by
reference to s 5(2)(b) of the Constitution. Since, however, the power of modification in s
5(1) of the 1976 Act comes into play only where an existing law does not conform to the
Constitution and so is void, no question arises of using that power to modify s 4 of the
1925 Act.
[104] Attractively presented though they were, we can deal much more briefly with Mr
Starmers two arguments.
Separation of powers: judiciary and executive
[105] In practice not all persons who are sentenced to death in terms of s 4 of the
1925 Act are executed. Under s 87(1) of the Constitution the President has the power of
pardon which he must exercise in accordance with the advice of a Minister designated
by him, acting in accordance with the advice of the Prime Minister (s 87(3)). By s 89(1)
of the Constitution, where an offender has been sentenced to death, a report must be
prepared and the matter referred to a meeting of the Advisory Committee on the Power
of Pardon. The Advisory Committee comprises the Minister, the Attorney-General, the
Director of Public Prosecutions and not more than four other people appointed by the
President after consultation with the Prime Minister and the Leader of the Opposition; s

88. The composition of the Advisory Committee thus has the characteristics of an
executive rather than a judicial body. The Minister need not act in accordance with the
advice of the Advisory Committee. By virtue of s 87(2)(c), the President may substitute a
less severe form of punishment for that imposed by the sentencing judge. This is the
power which the President uses in appropriate cases to commute the death sentence
passed on those convicted of murder and to substitute a period of imprisonment. From
what counsel told the Board it appears that in practice the Advisory Committee is
instrumental in deciding how long those convicted of murder should spend in prison
when the death sentence is commuted.
[106] Mr Starmer submitted that, since the cases of all prisoners sentenced to death
under s 4 of the 1925 Act had to be referred to the Advisory Committee, it was in effect
the Advisory Committee and not the judge who decided what sentence the prisoner
should undergo. The Advisory Committee therefore performed a critical role in the
sentencing of those convicted of murder. This was contrary to the requirement for the
separation of judicial and executive powers that was
315
inherent in the Constitution; Hinds, Hutchinson, Martin, Thomas v R (1975) 24 WIR
326 at 341 and 342, and Director of Public Prosecutions of Jamaica v Mollison (2003)
64 WIR 140 at p 151, para [13].
[107] We agree with Sir Godfray le Quesne that the appellants argument sits uneasily
with the reasoning of the Board in Reyes v R (2002) 60 WIR 42 at pp 67, 68, para [44]
to the effect that the function of the Advisory Committee is not a sentencing function. In
any event, Mr Starmer was in substance arguing that s 4 of the 1925 Act was
unconstitutional because s 89(1) of the Constitution required that the cases of those
sentenced to death under it should be referred to the Advisory Committee. In other
words, he was arguing that a requirement, not of s 4 of the 1925 Act, but of the
Constitution itself made s 4 unconstitutional. It is impossible, however, to hold that
something which the Constitution prescribes makes a law unconstitutional. As Mr
Starmer really acknowledged, the logic of his position was that, if the provisions of the
Constitution providing for the review of all death sentences (which can only be for the
condemned mens benefit) were repealed and the mandatory death sentences were
always carried out, s 4 would be constitutional. Such an argument is fatally flawed. We
therefore have no hesitation in rejecting this submission.
Separation of powers: legislature and judiciary
[108] As a fallback, Mr Starmer submitted that, by making the death sentence
mandatory and so depriving the court of any discretion in fixing the appropriate
sentence in the circumstances of the individual case, the legislature had acted in breach
of the principle of the separation of the powers of the courts and the legislature which
was also inherent in the Constitution. Again, we accept that this principle is to be found
in the Constitution. Nevertheless, we reject the argument.
[109] What is constitutionally unacceptable is that the legislature should prescribe the
sentence that is to be imposed on any particular individual. There is nothing inconsistent
with the separation of powers, however, in Parliament legislating to prescribe the
penalty that is to be imposed for a particular offence. The position was explained with

conspicuous clarity by Dlaigh CJ in the Supreme Court of Ireland in Deaton v

Attorney-General [1963] IR 170 at 182 and 183:
There is a clear distinction between the prescription of a fixed penalty and the
selection of a penalty for a particular case. The prescription of a fixed penalty is the
statement of a general rule, which is one of the characteristics of legislation; this is
wholly different from the selection of a penalty to be imposed in a particular case. It
is here that the logic of the respondents argument breaks down. The legislature
does not prescribe the penalty to be imposed in an individual citizens case; it states
the general rule, and the application of that rule is for the courts. If the general rule
is enunciated in the form of a fixed
316
penalty then all citizens convicted of the same offence must bear the same
punishment. But if the rule is stated by reference to a range of penalties to be
chosen from according to the circumstances of the particular case, then a choice or
selection of penalty falls to be made. At that point the matter has passed from the
legislative domain. Traditionally, as I have said, this choice has lain with the courts.
Where the legislature has prescribed a range of penalties the individual citizen who
has committed an offence is safeguarded from the executives displeasure by the
choice of penalty being in the determination of an independent judge. The individual
citizen needs the safeguard of the courts in the assessment of punishment as much
as on his trial for the offence.
This Board indorsed that approach in Hinds, Hutchinson, Martin, Thomas v R (1975) 24
WIR 326 at 341 and 342. Lord Diplock observed (at p 341):
The power conferred upon the Parliament to make laws for the peace, order and
good government of Jamaica enables it not only to define what conduct shall
constitute a criminal offence but also to prescribe the punishment to be inflicted on
those persons who have been found guilty of that conduct by an independent and
impartial court established by law. (See Constitution, Chapter III, s 20(1).) The
carrying out of the punishment where it involves a deprivation of personal liberty is
a function of the executive power; and, subject to any restrictions imposed by a law,
it lies within the power of the executive to regulate the conditions under which the
punishment is carried out. In the exercise of its legislative power, Parliament may, if
it thinks fit, prescribe a fixed punishment to be inflicted upon all offenders found
guilty of the defined offence as, for example, capital punishment for the crime of
murder.
Although Lord Diplocks comment on capital punishment for the crime of murder was
obiter, it has stood for over twenty-five years and we see no reason to question the
Boards view that fixing a mandatory death sentence for murder is an exercise of the
legislative function which does not offend against the separation of legislative and
judicial powers inherent in the Caribbean Constitutions. The real ground for a
constitutional challenge to the prescription of a mandatory death sentence for murder is
not that it contravenes the separation of powers but rather that, for the reasons given in
Reyes v R (2002) 60 WIR 42, it offends against the prohibition on cruel and unusual

punishment in s 5(2)(b) of the Constitution. But, as we have held, s 6(1)(a) precludes

the appellant from advancing that argument.
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Decision on the appeal
[110] For these reasons, which are in substance the same as those of the Court of
Appeal, we would dismiss the appeal.
Advice (of the majority) that appeal be allowed and death sentence quashed.
Remission of case to trial judge to determine sentence.
318