The Constitution

 
 Explain the phrase ‘sources of law’
 Identify and examine the main function of the constitution
 Explain what is the doctrine of ‘supremacy’
 Identify the fundamental rights enshrined in Caribbean constitutions

The Constitution as a source of Law

The constitution is a source of law because it is often referred to by judges and lawyers who look
to the constitution for the continued protection of citizens’ rights and the preservation of the rule
of law.

Basic Features of the Constitution:

 A preamble;
 Chapters on citizenship;
 A section on fundamental rights and freedoms;
 Chapters defining the powers of the Head of State and Parliament;

Features of the Constitution

 Chapters defining powers and establishment of the Executive and Judiciary;

 Chapters establishing and defining the role and functions of the Public service and the
Judicial Commissions;
 Chapters on finance;
 In addition there is a statutory formula giving Parliament power ‘to make laws for peace,
order and good government.’
Functions of the Constitution
 It contains a Supremacy Clause
 It contains the establishment of and procedure to be adopted by the main organs of state:
the executive, the legislature and the judiciary.
 The establishment of service commissions with their relative jurisdiction(s), function(s)
and power(s)
 The establishment of the office of the Ombudsman with its jurisdiction, functions and
powers.
 It contains an entrenched Charter of Fundamental Rights and Freedoms

Maharaj v Attorney-General (1979)

The appellant Mr. Ramesh Lawerence Maharaj, was a well known barrister (and later
well-known politician), who was committed to prison for seven days on a charge by a High
Court judge for contempt of court. Attorney Maharaj applied to the High court (judicial review)
to have the order set aside on the ground that he was being deprived of his liberty without due
process of law.
His motion was dismissed and he was ordered to serve his term of six days in prison.
Mr. Maharaj served his term and appealed to the Court of Appeal from the High Court’s ruling.
While that appeal was pending, he obtained leave to do so and appealed to the Privy Council
against the committal order.

The ground of this appeal was that there had been a fundamental breach of natural justice
as the judge had not communicated to him exactly what he had done, neither had he been given a
chance to explain or excuse his conduct. His appeal before the Court of Appeal failed as the court
held that the judge’s failure to specify the nature of the contempt did not violate section 1 of the
constitution, which protected the citizen from infringement of his rights by the state.
Conclusion of Maharaj v AG
The Privy Council ruled in favor of Maharaj and held:
The constitution gave the High court original jurisdiction to hear matters brought by any person
claiming that his fundamental rights have been infringed. The High Court had jurisdiction to hear
whether the procedure adopted by the court in committing the appellant to prison contravened his
constitutional rights.

The constitution protected individuals from having their rights infringed by the state or a public
authority and the actions of the court in committing the appellant to prison without attention to
natural justice requirements constituted a breach of the common law and contravened his rights
under the constitution, entitling him to obtain redress.
Section 6 of the Constitution created a remedy for persons whose rights were contravened
and the appellant would be granted a monetary compensation as he had suffered loss of
earnings during his detention, as well as inconvenience and distress.

In this case, we see the judicial committee doing what the High Court had been reluctant to
do, that is, to exercise jurisdiction over another High Court judge. In the interest of justice
and in preserving the constitutional safeguards in respect of an individual’s fundamental
rights, the Board was prepared to take a bold step.
Final word on Maharaj
Lord Diplock, in delivering the judgment of the majority, said:

‘The order of Maharaj J committing the appellant to prison was made by him in the
exercise of the judicial powers of the state; the arrest and detention of the appellant
pursuant to the judge’s order was affected by the executive arm of the state. So if his
detention amounted to a contravention by the state against which he was entitled to
protection.’
 Supporting Cases:
Application of the Case:

Maharaj v The Attorney General of Trinidad & Tobago

Where the court upheld the constitutional principle that a man must be told of the case
being brought against him.
 Collymore v Attorney-General (1970)
This case raises the issue of the supremacy of the constitution.
Here the appellants were challenging the constitutionality of the Industrial Stabilisation Act
1965.
They were in effect raising the allegation that in passing the act the parliament had acted in
violation of the constitution.
In resolving the issue Wooding CJ, raised the issue of the sovereignty of the constitution,
concluding that the actions of the parliament must be consistent with the scope of powers
delegated to it under the constitution. Even where the parliament desired to amend some
aspect of the constitution, this can only be achieved within the framework of the procedures
laid down for such an activity.
 Collymore and Abrahams v Attorney General (1970)
In Collymore, the appellants were members of a trade union. They were unsuccessful in
their application to the High Court to declare as Ultra vires an Act called the Industrial
Stabilisation Act 1965. The preamble to the Act stated its aims to be, among other things;

 For the compulsory recognition by employers of the trade unions and workers
organisations,

 For an expeditious settlement of trade disputes.

 Collymore

 The Act also provided that it was unlawful for a worker to engage in industrial action,
unless the Minister of Labour failed to refer the dispute to the Industrial Court.

 One of the points on which the appellants based their action was that the Act was
repugnant to the Constitution. They also argued that certain of its provisions
abrogated, abridged or infringed the fundamental rights provisions of the
Constitution, particularly freedom of association.
 Collymore
Wooding CJ, in considering the appellants’ case, referred to section 36 of the constitution, which
provided that ‘Parliament may make laws for the peace order and good government of Trinidad
and Tobago’ and said:

‘In my judgment, the section means what it says. And what it says and says very clearly, is
that the power and authority of Parliament to make laws are subject to its provisions.
Parliament may therefore be sovereign within the limits thereby set, but if and whenever it
should seek to make any law such as the Constitution forbids it will be acting ultra vires.’