Trinity Cross Privy Council Decision PDF

378 West Indian Reports 76 WIR
Sanatan Dharma Maha Sabha
of Trinidad and Tobago Inc and others v b
Attorney General of Trinidad and Tobago
[2009] UKPC 17 c
HIGH COURT OF TRINIDAD AND TOBAGO

JAMADAR J
26 MAY 2006
d
COURT OF APPEAL OF TRINIDAD AND TOBAGO
HAMEL-SMITH CJ (AG), WARNER AND ARCHIE JJA
20 DECEMBER 2007
PRIVY COUNCIL
e
LORD HOPE OF CRAIGHEAD, BARONESS HALE OF RICHMOND,
LORD CARSWELL, LORD BROWN OF EATON-UNDER-HEYWOOD AND
LORD MANCE
21 JANUARY, 28 APRIL 2009
f
Constitutional law – Fundamental rights and freedoms – Right to equal
treatment – Discrimination – Enforcement – ‘Existing law’ – Letters Patent –
‘Trinity Cross’ – Society of honour established in Trinidad and Tobago by
Letters Patent in 1969 – Name of society and its highest award, the ‘Order of
Trinity’ and the ‘Trinity Cross’, perceived as overtly Christian in name g
and substance – Trinidad and Tobago becoming Republic in 1976 –
Appellants seeking declarations that society and award breaching constitutional
rights to equality, equal treatment and freedom of conscience and belief of
non-Christians – Whether Letters Patent part of ‘existing law’ at commencement
of 1976 Constitution – Constitution of Trinidad and Tobago 1962 – h
Constitution of the Republic of Trinidad and Tobago 1976, ss 3–4, 6, 18.
Trinidad and Tobago attained independence in 1962 and became a

Republic in 1976. By Letters Patent dated 26 August 1969 a society of i
honour was established by Her Majesty the Queen in Trinidad and
Tobago by and with the advice of the Cabinet. Its purpose was to accord
recognition to citizens of Trinidad and Tobago and other persons who
had rendered distinguished or meritorious service or for gallantry.
The name of the order and its highest award were the ‘Order of Trinity’
TPC SDMS v A-G 379
a and the ‘Trinity Cross’ respectively, both names having been chosen on
the recommendation of a committee set up in 1963 to make
recommendations on national awards. In 2004 the appellants applied by
way of constitutional motion for various declarations to the effect that
the Trinity Cross of the Order of Trinity discriminated and continued to
b discriminate against them and others who were not Christians, contrary
to s 4(b), (d) and (h) of the Constitution of the Republic of Trinidad and
Tobago 1976. The appellants contended that as a Hindu and a Muslim
and as representative organisations of Hindus and Muslims existing in a
multi-cultural and multi-religious society like Trinidad and Tobago, with
c its unique religious, cultural, historical and sociological antecedents,
the continued existence and awarding of The Trinity Cross as the State’s
highest national honorary award was discriminatory and unfair, in that
Muslims and Hindus by virtue of their religious beliefs and experiences
were unfairly and discriminately encumbered in their capacity to
d nominate persons for, be nominated for or accept the honour,
because of its clear and overt preferential recognition and representation
of Christian symbolism, theology and values. Section 4 of the
1976 Constitution, which enshrined fundamental human rights and
freedoms and provided for their protection, had replaced s 1 of the
e
1962 Constitution. Section 6(1)(a) of the 1976 Constitution provided,
inter alia, that nothing in s 4 was to invalidate ‘an existing law’ ie a law
that had effect as part of the law of Trinidad and Tobago immediately
before the commencement of the 1976 Constitution. ‘Law’, defined in
s 3(1), included any enactment, and any Act or statutory instrument of
the United Kingdom that before the commencement of the
f 1976 Constitution had effect as part of the law of Trinidad and Tobago.
The Constitution of the Republic of Trinidad and Tobago Act 1976
contained a number of transitional and savings provisions. Section 18
dealt with enactments, which had a narrower meaning than the word
‘law’ as defined by s 3(1), and provided, inter alia, that enactments made
g under the 1962 Constitution and not declared by a competent court
before the commencement of the 1976 Constitution to be void by
reason of any inconsistency with any provision of the 1962 Constitution
were deemed to have had full force and effect as part of the law of
Trinidad and Tobago immediately before the commencement of the
h 1976 Constitution, even if such enactments were inconsistent with any
provision of the 1962 Constitution. In May 2006, the judge held that
the creation and continued existence of the Trinity Cross, given the
historical, religious and sociological context of Trinidad and Tobago,
combined with the experiences, as well as the religious beliefs of Hindus
i and Muslims, amounted to indirect adverse effects discrimination against
Hindus and Muslims. However, by reason of the savings of existing law
provision in the 1976 Constitution, the Letters Patent establishing the
Constitution of the Order of the Trinity and the Trinity Cross
were deemed to be existing law and therefore could not be invalidated
for inconsistency with the s 4 rights and freedoms under the a

1976 Constitution. The judge accordingly dismissed the action. The
Court of Appeal dismissed the appellants’ appeal and they further
appealed to the Privy Council. In the meantime, the Cabinet agreed that
the award should be renamed the ‘Order of the Republic of Trinidad and
Tobago’, that the society should be renamed the ‘Distinguished Society b
of Trinidad and Tobago’, that the highest national award should be
redesigned so as to replace the cross with a medal and that the
Letters Patent should be amended to give effect to those decisions.
The question whether the award of the Trinity Cross was discriminatory
in those respects was therefore no longer in issue. The principal question c
for the Board was whether the Letters Patent which had established the
Order of Trinity were part of the existing law within the meaning of
s 6(1)(a) of the 1976 Constitution.
Held – Whilst the findings by the judge had been directed to the rights
d
and freedoms described in s 4(b), (d) and (h) of the 1976 Constitution,
they showed just as clearly that the institution of the award of the
Trinity Cross as the nation’s highest honour had been an infringement of
the enjoyment of the rights described in s 1(b), (d) and (h) of the
1962 Constitution from the date of its creation. The issue of the
Letters Patent was not exempt from scrutiny as it was neither an e
‘enactment’ within the meaning of s 18 of the 1976 Act nor within the
wider sense of ‘enactment’. It was an ancient form of law-making under
the prerogative and, accordingly, it was not necessary for the court to
reach a concluded view as to whether it was an executive decision or
was ‘law’ within the meaning of s 3(1) of the 1976 Constitution. f
Either way, it was an infringement of the rights and freedoms of
members of the Hindu and Muslim communities in Trinidad and Tobago
and it was unconstitutional. For that reason it was not entitled to the
protection that s 6(1)(a) of that Constitution gave to an existing law. It
followed that the appellants were entitled to a declaration that creation of g
the Trinity Cross of the Order of Trinity established by the Letters Patent
given on 26 August 1969 breached their right to equality under s 4(b),
their right to equality of treatment under s 4(d) and their right to
freedom of conscience and belief under s 4(h) of the 1976 Constitution,
provided that nothing therein should be taken to apply to any awards of h
that high honour that were made under the system that the
Letters Patent had established before the date of the Board’s judgment.
Accordingly, the appeal would be allowed and a declaration of invalidity
to be applied prospectively would be made (see [31]–[32], [40]–[42],
[43], [51], below). i
Campbell v Hall (1774) 1 Cowp 204, Re Lord Bishop of Natal
(1864) 3 Moore PC (NS) 115 and Sammut v Strickland [1938]
3 All ER 693 considered.
TPC SDMS v A-G 381
a Cases referred to in judgments

A-G v De Keyser’s Royal Hotel Ltd [1920] AC 508, [1920] All ER Rep
80, HL.
A-G v KC Confectionery Ltd (1985) 34 WIR 387, Trinidad and
Tobago CA.
b Althammer v Austria (No 998/2001, ICCPR), UN HRC.
American Civil Liberties Union of Kentucky v Kentucky 354 F 3d 438, US.
Belafonte v A-G (Civil Appeal No 24 of 2004), Trinidad and Tobago CA.
Bhagwandeen v A-G [2004] UKPC 21, (2004) 64 WIR 402, UKPC.
Bishop of Roman Catholic Diocese of Port Louis v Tengur [2004] UKPC 9,
c (2004) 16 BHRC 21, [2004] 3 LRC 316, UKPC.
Boyce v R [2004] UKPC 32, (2004) 64 WIR 37, [2005] 1 AC 400,
[2004] 3 WLR 786, UKPC.
Campbell v Hall (1774) 1 Cowp 204, [1558–1774] All ER Rep 252.
CBS Ltd v A-G (Civil Appeal No 16 of 2004), Trinidad and Tobago CA.
d Council of Civil Service Unions v Minister for the Civil Service
[1984] 3 All ER 935, [1985] AC 374, [1984] 3 WLR 1174, [1985]
ICR 14, HL.
Curr v R (1972) 26 DLR (3d) 603, Canada SC.
De Freitas v Benny (1974) 26 WIR 523, Trinidad and Tobago CA;
e affd (1975) 27 WIR 318, [1976] AC 239, [1975] 3 WLR 388, PC.
Glassroth v Moore, Chief Justice of Alabama 335 F 3d 1282, US.
Gratwick v Johnson (1944) 70 CLR 1.
Harrikissoon v A-G of Trinidad and Tobago (1979) 31 WIR 348, [1980] AC
265, PC.
f Jaulin v DPP [1976] MR 96, Mauritius SC.
Karnel Singh Bhinder v Canada (No 208/1989, ICCPR), UN HRC.
Lemon v Kurtzman 403 US 602, US.
Lord Bishop of Natal, Re (1864) 3 Moore PC (NS) 115.
Maharaj v A-G of Trinidad and Tobago (No 2) (1978) 30 WIR 310, [1978]
g 2 All ER 670, [1979] AC 385, [1978] 2 WLR 902, PC.
Manchester Corp v Manchester Palace of Varieties Ltd [1955] 1 All ER 387,
[1955] P 133, [1955] 2 WLR 440, England HC Chvry.
Matthew v The State [2004] UKPC 33, (2004) 64 WIR 412, [2005] 1 AC
433, [2004] 3 WLR 812, UKPC.
h
Modrorich v Pennsylvania (2004) 385 F 3d 397, US.
Powell v Kempton Park Racecourse Co Ltd [1899] AC 143, [1895–9] All ER
Rep Ext 1488, HL.
Proclamations’ Case (1611) 12 Co Rep 74, 77 ER 1352.
R (on the application of Bancoult) v Secretary of State for Foreign and
Commonwealth Affairs [2008] UKHL 61, [2008] 4 All ER 1055,
i
[2009] AC 453, [2008] 3 WLR 955, UKHL.
Sammut v Strickland [1938] 3 All ER 693, [1938] AC 678, PC.
Sankerali v A-G (Civil Appeals Nos 58, 59 and 60 of 1999) (unreported).
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL
11, [2003] 2 All ER 26, [2003] NI 174, UKHL.
Smith v LJ Williams (1982) 32 WIR 395, Trinidad and Tobago HC a

and CA.
State of West Bengal v Anwar Ali Sarkar [1952] SCR 284, (1952) 39 AIR
75, India SC.
SWM Broeks v Netherlands (No 172/1984, ICCPR), UN HRC.
Thornhill v A-G (1979) 31 WIR 498, [1981] AC 61, [1980] 2 WLR 510, b
PC.
Watson v R [2004] UKPC 34, (2004) 64 WIR 241, [2005] 1 AC 472,
(2004) 17 BHRC 95, [2004] 3 WLR 841, PC.
Action c
The applicants, Sanatan Dharma Maha Sabha of Trinidad and
Tobago Inc, Satnarayan Maharaj, Islamic Relief Centre Ltd and Inshan
Ishmael brought proceedings (HCA No Cv S 2065/2004) seeking
declarations to the effect that the Trinity Cross of the Order of Trinity
discriminated and continued to discriminate against non Christians, d
contrary to s 4(b), (d) and (h) of the Constitution of the Republic of
Trinidad and Tobago 1976. The respondent was the Attorney General of
Trinidad and Tobago. The facts are set out in the judgment.
Dr Fenton Ramsahoye QC, J Horan and Anand Ramiogan (of the Trinidad e
& Tobago Bar) for the applicants.
R Martineau SC and D Peake SC for the respondent.
26 May 2006. The following judgment was delivered.

JAMADAR J. f
INTRODUCTION
In 1962 Trinidad and Tobago attained independence from England.
No longer was Trinidad and Tobago a colony. However, Her Majesty the
Queen of England remained monarch. g
By the Trinidad and Tobago (Constitution) Order in Council 1962,
to which the 1962 Independence Constitution (the 1962 Constitution)
was annexed and made operative (as from 31 August 1962), Trinidad and
Tobago was granted full responsibility for its own governance within the
context of the Commonwealth (see the Trinidad and Tobago h
Independence Act 1962). From that moment on, Trinidad and Tobago
had independent responsibilities with respect to legislative powers and no
laws of the United Kingdom passed after 31 August 1962 would extend
to Trinidad and Tobago as part of its laws. However, by s 22 of the
1962 Constitution the Parliament of the independent Trinidad and i
Tobago consisted of Her Majesty, a Senate and a House
of Representatives. And, by s 56 of the 1962 Constitution the executive
authority of Trinidad and Tobago was vested in Her Majesty and could
be exercised on her behalf by a Governor-General. Further,
the Governor-General was appointed by Her Majesty and held office at
TPC SDMS v A-G 383
a Her Majesty’s pleasure and was Her Majesty’s representative in Trinidad

and Tobago and the Commander in Chief of Trinidad and Tobago
(s 19 of the 1962 Constitution). Finally, by s 57 of the 1962 Constitution
the establishment of a Cabinet was provided for, with responsibility for
the control of the government of Trinidad and Tobago and with
b accountability for same to Parliament.
On 26 August 1969 (with effect from 30 August 1969) Her Majesty,
Elizabeth The Second as Queen of Trinidad and Tobago, acting on the
advice of the Cabinet of Trinidad and Tobago, issued Letters Patent
establishing a society of honour in Trinidad and Tobago, to be known as
c the ‘Order of the Trinity’, for the purpose of ‘according recognition to
citizens of Trinidad and Tobago and other persons for distinguished or
meritorious service or for gallantry’.
Since the inception of the Order of the Trinity some 35 years
have passed; and now a formal constitutional challenge has been raised
d against the highest honour that can be awarded under it:
‘The Trinity Cross.’ For many years prior to this challenge murmurings
have been sounded about the propriety of The Trinity Cross, in a
multi-cultural and multi-religious society such as exists and has existed in
Trinidad and Tobago since the time of its introduction in 1969.
e Since 1976, with the introduction of the 1976 Republican
Constitution (the 1976 Constitution) and the creation of the Republic
of Trinidad and Tobago (by Act No 4 of 1976, the Constitution of the
Republic of Trinidad and Tobago Act), the prerogatives and privileges
formerly vested in Her Majesty were, as of 1 August 1976, vested in the
f State (the Republic of Trinidad and Tobago) and, subject to the
1976 Constitution and any other law, the President (of the Republic)
was given the power to exercise those prerogatives and privileges—s 6(1)
of Act 4 of 1976. By the 1976 Constitution the President had become
Head of State and Commander in Chief of the armed forces (s 22) and
g executive authority for Trinidad and Tobago had also been vested in
the President. Thus, the President had generally replaced Her Majesty
and Her Majesty’s appointee the Governor-General in the roles they
played under the 1962 constitutional arrangements that had previously
existed in Trinidad and Tobago.
h The applicants in this case challenge the constitutionality of the
Trinity Cross on the grounds that its continued existence and award are
in breach of the applicants’ fundamental rights as guaranteed by ss 4(b),
4(d) and 4(h) of the 1976 Constitution.
The applicants argue that as a Hindu and a Muslim and as
i
representative organisations of Hindus and Muslims existing in a
multi-cultural and multi-religious society like Trinidad and Tobago, with
its unique religious, cultural, historical and sociological antecedents,
the continued existence and awarding of The Trinity Cross as the State’s
highest national honorary award is discriminatory and unfair, in that
Muslims and Hindus by virtue of their religious beliefs and experiences
are unfairly and discriminately encumbered in their capacity to nominate a

persons for, be nominated for or accept the honour, because of its clear
and overt preferential recognition and representation of Christian
symbolism, theology and values. It is essentially on these contentions
that the arguments of discrimination and inequality arise,
both independently and in the context of the fundamental right to b
freedom of conscience and religious belief and observance.
STRUCTURE OF THE JUDGMENT

1. The religious, cultural, historical and sociological context
([pp 385–395, below]). c
• ‘Discovery’ and colonisation.

• Christian exclusivity.
• Indian arrivals. d
• Canadian Christian mission.
• Marginalisation.
2. The Trinity Cross ([pp 395–416, below]).

e
• Recommendations.
• Description.
• Interpretation.
• Victoria Cross.
f
• George Cross.
• Contemporary considerations.
• Hindu perspectives.
• Islamic perspectives.
• The applicants.
• de la Bastide Committee. g
3. Entitlement to relief, 1976 Constitution ([pp 416–419, below]).
h
• Likelihood of contravention.
• Locus standi.
4. The equality provisions, s 4(b) and 4(d), 1976 Constitution

([pp 419–434, below]). i
• Legislation.
• Administrative action.
• Fairness.
TPC SDMS v A-G 385
a 5. Religious belief and observance, s 4(h), 1976 Constitution

([pp 434–438, below]).
• The American position.

• Secular State.
b • State involvement in religion.
• Understanding 4(h) rights.
6. Synthesis/application ([pp 439–442, below]).

7. Existing law, s 6(1), 1976 Constitution ([pp 443–445, below]).
c 8. Costs ([p 445, below]).
9. Disposition ([p 445, below]).
10. Appendices.
RELIGIOUS, CULTURAL, HISTORICAL, SOCIOLOGICAL CONTEXT
d ‘And at the end of 17 days, during which the Lord granted me

a favourable wind, on Tuesday July 31, at noon, land presented itself
to our gaze. I had expected this the Monday before and had held
the course up to this point, but as the fierceness of the sun
increased and our supply of water was failing, I resolved to make
e for the Carib Islands, and I set sail in that direction. And as the
Lord on high has always shown mercy to me, one of the sailors, a
seaman from Huelva, my servant, named Alonso Perez, saw a range
of three mountains to the westward, about 15 leagues distant …
Whereupon there was great joy and merriment, and we recited the
f Salve Regina and gave thanks to the lord.’
Ship’s log entry by Christopher Columbus (31 July, 1498).
The respected and reputable historians Michael Anthony, Gerard

Besson and Bridget Brereton note (see First in Trinidad (2nd edn);
g Historical Dictionary of Trinidad and Tobago (1997) and The Book of Trinidad
(3rd edn) at pp 21, 150 and 11 respectively), that Columbus on seeing
this land remembered his vow on leaving the Spanish Mediterranean
seaport of San Lucar on 30 May 1498, to name the first land he saw after
the Blessed Trinity (‘la santissima trinidad’), the three persons in
h One God according to the Roman Catholic faith—to whom he had
dedicated this his third voyage to ‘the Indias’ (the West Indies) and cried
out ‘La Trinidad!’. The island was thus named ‘Trinidad’ after the Holy
Trinity of the Roman Catholic (Christian) religion.
From 31 July 1498 until Capitulation on 18 February 1797
i
(by ‘His Catholic Majesty’—the Spanish King to ‘His Britannic
Majesty’—the British King) Trinidad was a Spanish Catholic colony.
One of the motives for the exploration of the New World by
Columbus and Catholic colonisers was the extension of Christendom.
In 1492, Columbus writing to King Ferdinand and Queen
Isabella stated:
‘Your Highness ought not to consent that any foreigner do a

business or set foot there, except Christian Catholics, since this was
the end and the beginning of the enterprise, that it should be for
the enhancement and glory of the Christian religion, nor should
anyone who is not a good Christian come to these parts.’
(See FR Augier and SC Gordon Sources of West Indian History p 89.) b
This religious exclusivity was not limited to would be settlers but

extended to all inhabitants: enslaved indigenous Indians (Amerindians)
were converted to Christianity. To quote from Acosta’s History of the
Indies (1604): ‘Yet God of his bounty … has made the subjection of the c
Indians, a perfect remedy for their salvation.’
The position with respect to Trinidad is documented in The Royal
Cedula on Colonization given on 24 November 1783 by the
Spanish King, whereby in establishing the underlying policy for
settlement and commerce in Trinidad it was stated: d
‘Article 1st. All foreigners, the subjects of powers and nations in

alliance with me, who are desirous of establishing themselves,
or who are already settled in, the said Island of Trinidad, shall
sufficiently prove to the Government thereof, that they are of the e
Roman Catholic persuasion, without which they shall not be
allowed, to settle in the same; but the subjects of these my
dominions, or those of the Indies, shall not be obliged to adduce
such proof, because no doubt can arise as to their religion.’
f
Thus, for 300 years Trinidad was an exclusive Christian Roman
Catholic colony, with an overt policy of Christian religious exclusivism,
and the origins of that policy can be traced to the first sighting of the
island on 31 July 1498.
With Capitulation this religious exclusivity changed. By art 11 of the g
Articles of Capitulation, signed on the Island of Trinidad on
18 February 1797, it was declared that: ‘The free exercise of their
religion is allowed to the inhabitants.’ Of course all inhabitants of the
island had to swear allegiance to the King of England ‘upon pain in case
of non-compliance of being sent away from the Island’ (art 15). And of h
course this free exercise of religion was in the context of a transfer of
power from Roman Catholicism to Anglicanism (English Catholicism).
Practically therefore Trinidad remained a Christian Colony. In fact the
official British policy was that only Governors and Councillors must be
members of the Church of England. Governors were instructed that
they should— i
‘in no other case suffer any man to be molested or disquieted in

the exercise of his religion …; only we oblige you in your own
house to the possession of the Protestant religion, according as it is
TPC SDMS v A-G 387
a here practiced by us in England, and the recommending it to all

others under your command.’ (See Augier and Gordon, above, p 91.)
It may thus be fair to say, that with and following Capitulation, the
official policy on religion in Trinidad shifted from one of insistence to
b
one of persuasion—in the context of Christian pluralism. But it is also
clear that governance and privilege remained linked with adherence to
the ‘acceptable’ Christian religious traditions.
Thus, though there was tolerance as among Spanish and French
Roman Catholic Christians and the British and Dutch Protestant
c Christians, the attitude to non-Christian beliefs was quite different.
As is pointed out in the General History of the Caribbean Vol III—The
Slave Societies of the Caribbean (Ed FW Knight), in the section entitled
‘Colonial state churches and religions conformity’ (at p 293):
d
‘The centrally important feature of the slave workers’ new
religious setting, however, was consistent throughout the
Caribbean: non-christian beliefs and practices were outlawed and
practitioners punished with torture, transportation and death.’
e
This then was the general religious context in Trinidad, from the time
Columbus claimed the island, to the abolition of slavery in 1834 in the
British Empire (by the Abolition Act 1834 [UK]; proclaimed in Trinidad
in 1838).
f African slavery really started in Trinidad with the Cedula of
Population in 1783. Before that there were only a few people of African
descent, the majority of the population being Amerindians along with
Spanish settlers. By 1797, when Trinidad was conquered by the British,
there were about 10,000 African slaves. However, between 1797 and
g 1806, under British rule, the slave population rose to about 20,000.
In 1806 the slave trade to Trinidad (one of the ‘newly acquired colonies’)
was prohibited. By 1834 when slavery was abolished, Trinidad had
become a slave colony and African slaves constituted the majority of
her population. It is to be noted that though 1834 marked the formal
h end of slavery, former slaves were not ‘fully free’, as all slaves (over
six years) had to be ‘apprenticed’ to their former owners and had to
work 45 hours a week unpaid. This apprenticeship scheme was only
abolished on 1 August 1838, when full freedom was granted to all
former slaves—emancipation. (See Besson and Brereton, above, p 99).
i
(The information stated above and following is a matter of public
record, indisputable and well known. It forms part of the notorious local
history of Trinidad. The following information has been recorded by
many historians and analysts, including Professor Brinsley Samaroo
(eg in India in the Caribbean and Pioneer Presbyterians—Origins of
Presbyterian Work in Trinidad); Isaac Dookeran (eg in A Post Emancipation
History of the West Indies); Idris Hamid (eg in a History of the Presbyterian a
Church in Trinidad, 1808–1968); and Professor John La Guerre (eg in
Calcutta to Caroni, The East Indians of Trinidad)).
It is into this historical, religious, ethnic and sociological context that
East Indians (from India) arrived in Trinidad under the
Indentureship System. b
Prior to the abolition of slavery and the introduction of the farcical
apprenticeship system, Trinidad had become a plantation economy based
on the production of export crops, ‘King Sugar’ and cocoa being the
main exports. African slave labour was the underlying basis of the island’s
c
social and economic structure, both of these export crops being heavily
labour dependent. It was not surprising that in the ten years prior to
abolition, the planters in Trinidad passionately resisted the movement
towards abolition. Abolition was seen as the death of their income and
the island’s economy.
d
It was also against this background of protest and need, especially with
the failure of the apprenticeship system and with the emancipation of
former slaves and with the general reluctance of the ex-slaves to remain
or work on the plantations, that alternative sources of labour, cheap
labour, had to be found if the island’s plantation economies were to be
e
sustained and economic disaster averted. This was the general economic
context in which indentured immigrant labour was introduced into the
British West Indian colonies (including Trinidad) in the
post-emancipation era.
The first East Indian immigrant ship, ‘The Fatel Razack’, left Calcutta f
in February 1845 and arrived in Trinidad on 30 May 1845. There were
227 East Indian immigrants on board—men, women and children.
This was the beginning of the indentured labour system in Trinidad.
It continued until 1917, by which time some 143,939 Indian immigrants
had arrived in Trinidad. g
Though the indentured immigrants were under contract for a fixed
period of time (after which they could return to their land of origin),
the vast majority stayed. In Trinidad some 110,645 Indian immigrants
remained, most of whom continued to reside and work on the
plantation estates. h
Given that the vast majority of East Indians who came to Trinidad
during the period of indentureship were of the Hindu and Muslim
religions, their proportion to the overall population is important to
understanding the relevant context in which the applicants’ arguments
are based. i
By 1871 there were over 27,000 East Indian immigrants out of a total
population 110,000 in Trinidad (ie about 25% of total population).
The following table illustrates the ratios between East Indians and the
total population in Trinidad over time.
TPC SDMS v A-G 389
a
YEAR NO TOTAL PERCENTAGE OF
EAST POPULATION TOTAL
INDIANS POPULATION
1871 27,000 110,000 25
b
1946 195,747 556,931 35
1960 301,946 819,362 37
1970 373,538 923,552 40
c
The population statistics published by the Government Central
Statistical Office for 2002 show that people of East Indian descent made
up 40.3 and 40 per cent of the population in the years 1990 and
2000 respectively. This publication also demonstrates that for the years
d 1990 and 2000 about 24 per cent of the population were Hindus and
6 per cent Muslims (that is, a total of about 30 per cent of
the population). It also appears that for these two periods, the total
Christian population (Roman Catholics, Anglicans and Presbyterians)
was 44 per cent of the total population.
e What was the attitude of the governing agencies towards the
non-Christian population in Trinidad and in particular towards the
Hindus and Muslims?
In fact, all immigrants who replaced the ex-slaves on the plantations
fell onto the lowest rung of the social ladder. Professor Samaroo
f describes ‘the lot of the East Indian Immigrant’ as follows:
‘To many the East Indian was an unwelcome intruder and

“a competitor for the crumbs which fell off the planters’ table.” He was
resented by the Africans, exploited by the plantation owners and
g neglected by the Government. The African resented the indentured
Indian because his arrival on the labour scene destroyed the
African’s chance of obtaining higher wages. East Indians were
further despised as being inferior in physical strength and were also
seen as the new slaves who were forced to carry a pass-book. Other
h sections of the population also had anti-Indian feelings. Some saw
the East Indians as “semi-barbarian” with a tendency to be “unruly
and riotous”. Even Lord Harris gave his view of the East Indians
whom he thought were hardly different from the ex-slaves:
“They are not, neither coolies or Africans, fit to be in a position which the
i
labourers of civilised countries must at once occupy. They must be treated
like children, and wayward ones too; the former from their habits and
religion; the latter from the utterly savage state in which they arrive.”
Thus large sections of the community rejected the East Indians
because of physical, social, religious and cultural differences.
Mutual distrust existed between Africans and East Indians. The
Indians reciprocated by not participating fully in the society. a

Besides regarding the African as being not so highly civilised as
himself, his religion and customs afforded a certain degree of
exclusiveness. Many of them felt a “social and religious reluctance to
have their children educated with those of a different faith and
different race.” Therefore in 1865, twenty years after their first arrival, b
and with a population of more than 20,000 or 25% of the total
population, not more than twenty Indian children were to be
found in the public schools of the island.’ (In Professor Samaroo’s
Pioneer Presbyterians pp 7–8.)
c
The non-Christian East Indian immigrant labourer experienced
alienation and marginalisation in Trinidad, based not only on class
(labourers on the plantations) but also because of culture and religion.
Placed in an entirely new context, predominantly Euro-centric (which
meant christo-centric) with traces of an Afro-centric nature, the d
indentured Indians strived to preserve and practice their religious beliefs
and observances, use their home languages, dress, food and maintain
their culture and traditions. That is, the Indian immigrants sought to
retain their identities (see Professor Samaroo India in the Caribbean p 46).
This choice to preserve identity and this resistance to change and to the e
assimilation of the dominant customs and values set the East Indian
immigrants apart from the rest of the society—a separation that cannot
be de-linked from the tensions that existed between the dominant
Christian religions and the ‘newly arrived’ Hindu and Muslim religions.
With the introduction of the Canadian Presbyterian Mission into f
Trinidad, which targeted predominantly the East Indian immigrant
population, the alienation and marginalisation of the non-Christian East
Indian immigrants suffered a further complication.
In 1864 John Morton visited Trinidad to recover from an illness.
He was from Nova Scotia, Canada and was the pioneer missionary to g
the East Indians of the Canadian Presbyterian Church in Trinidad.
As Idris Hamid points out in ‘A History of the Presbyterian Church in
Trinidad’ [quoting from the book John Morton in Trinidad by SE Morton
(his wife) (1916) pp 7 and 8], in reference to the East Indian Immigrant
in Trinidad: h
‘The overriding concern of John Morton was:

(i) The burden of … those 20,000 heathen people, brought
into a Christian country, and none to care for their souls. i
“To think,” he would say, “of those people living in a
Christian community for years, making money, and returning
to India without hearing the Gospel of Christ! What a stain
on our Christianity.”
(ii) “Christianizing the mass of imported heathenism.”
TPC SDMS v A-G 391
a (iii) “[T]hat these (Hindus and Muslims) be saved from

their dark idolatry or Mohammedan delusion.” ’
It is indisputable that the generally prevailing attitude of the governing

class in Trinidad was that Trinidad was a ‘Christian’ country and that
b ‘non-Christians’, certainly Hindus and Muslims, were by reason of their
religions, ‘heathens’, ‘idolaters’, ‘deluded’—inferior in a significant way
and so ‘less than’ Christians.
Professor Samaroo, in ‘The Presbyterian Canadian Mission as an agent
of integration in Trinidad’ (1972) p 10, citing Morton (1917) p 232,
c makes the following observation:
‘Even if the East Indians were fellow Aryans, they had in the
opinion of the missionaries, strayed from the path of civilization.
To Morton they were worshipers of false gods:
d “The character of these deotas (gods) is felt to be a most
vulnerable point. Brama was a liar, Vishnu an adulterer,
Shiva a drunkard, Krishna shameless … While the character of
Christ is our strong point.” ’
e Ironically, this preferential/discriminatory attitude by the governing

class in Trinidad, based on religion, was contrary to the attitude of the
founder of Christianity, Jesus, whose life was a critique of religious
exclusivity and discrimination. However, this preferential/discriminatory
attitude is important to note because it forms part of the collective
f ‘ancient memory’ and psychological context of Hindus and Muslims in
Trinidad and Tobago even today.
It is now also beyond dispute that the indenture system was really one
of semi-slavery (see, for example, Dr Eric Williams History of the People of
Trinidad and Tobago pp 105–106; and Idris Hamid, above, pp 43–46).
g What the whip was to slavery ‘jail and the asylum’ were to indentureship
(Idris Hamid, above, p 45).
The general alienation of and indifference to the East Indian
indentured worker in relation to the rest of the society in Trinidad,
is illustrated in the attitude of the governing class and of the State to
h their education.
Dr Eric Williams noted, in this regard:
‘The worst victims of colonialism in this respect (education)

were the children of the indentured immigrants. Until the arrival of
i
the Canadian Mission to the Indians in the 1860’s no attention was
paid to them at all …’ (History of the People of Trinidad and Tobago
p 211.)
And, the Keenan Report of 1869 records in relation to the East

Indian indentured immigrants:
‘Their moral and intellectual necessities were overlooked. a

The coolie’s mind was left a blank. No effort was made to induce
him, through the awakening intelligence and dawning prospects of
his children, to associate the fortune or the future of his family with
the colony. It is therefore, that—collaterally, and I believe
legitimately—I connect the magnitude of the periodical exodus of b
the Asiatics with the education system, which fails to provide for
their children acceptable schools. I cannot call to mind any other
case of a people who, having voluntarily come to a strange land
which they enriched by their labour, were—morally and
intellectually—so completely neglected as the coolies have been c
during the past twenty-four years …’ (In Idris Hamid’s A History of
the Presbyterian Church in Trinidad, above, p 64.)
Education was used by the Canadian Mission as a vehicle for

evangelism. As such its success may have been significant. But it was at a d
cost in terms of creating a pervasive attitude of suspicion, if not
resentment, among East Indian Hindus and Muslims who valued their
‘non-Christian’ religious beliefs and observances (see Professor Brinsley
Samaroo ‘The Presbyterian Canadian Mission as an agent of integration
in Trinidad, during the 19th and early 20th Centuries’ (1972) p 17). e
Indeed, Professor Samaroo points out (above):
(i) ‘They (Hindus and Muslims) often opposed the missionaries’

evangelisation efforts …’; and
(ii) ‘Some Hindus resented the fact that other East Indians had f
become Christians and they showed this by preventing Christian
East Indians from attending Hindu Religious ceremonies.’
Hindu and Muslim families were thus divided, when their children
who attended the Canadian Mission Schools chose to g
‘become Christians’ against the wishes of their families and communities
(see Morton Klass ‘East Indians in Trinidad: a study of cultural
persistence’ p 4). As Professor Samaroo points out (in Pioneer
Presbyterians—origins of Presbyterian Work in Trinidad p 24):
h
‘The conversion of Hindus and Muslims led to a certain amount
of disintegration in the society. In order to secure jobs many had to
accept baptism and this often led to a schizophrenic personality.
This was a situation created by the Church and which has been
handed down to our generation (in the 1990’s). Today it is still a
i
problem … and it is creating many unpleasant relationships.’
Professor Samaroo makes a similar observation in ‘The Presbyterian

Canadian Mission as an agent of integration in Trinidad’, above, p 24,
when he states:
TPC SDMS v A-G 393
a ‘The Canadian Mission to the East Indians … possibly believing

that the controlling hand of the British would be there for all time,
seems not to have envisaged the day when the country would be
under the control of Africans and East Indians. Hence they saw
nothing wrong with the racial separation that existed and indeed
b did much to preserve this. In doing so they re-enforced the
exclusiveness of the East Indian whose distinctive way of life made
separation a natural phenomenon. From the mid-20th century this
separation was destined to bedevil the fortunes of an emerging
Trinidad and Tobago.’
c
Indeed, many would agree that this reality is reflected in the politics
of Trinidad and Tobago, for since 1956 the country has generally been
divided proportionately along racial and religious lines—with Hindu
indos (and other indos) largely forming one major political block and
d Christian afros (and other afros and others) forming another major
political block. (This characterisation is not intended to do otherwise
than to reasonably caricature for the purpose of this case the political
realities in Trinidad and Tobago.)
The relevant historical, sociological, cultural and religious contexts in
e which the arguments in this case must be considered, include the
perspectives of Hindus and Muslims who have lived and are living in
this society. Their perspective is part of the ‘local condition’, known to
anyone who has lived in the society and has been open to listening to
their voices. What the above references seek to do is to present some
f insight into what is well and commonly known of their experiences,
through the eyes, ears, and voices of renowned and highly
respected sources.
An insight into this perspective may also be gained from the attitude
of the governing class and of the State to marriage. In fact,
g Hindu marriages were not recognised as legal until 13 May 1946
(with the passage of the Hindu Marriage Act); and Muslim marriages
were similarly not recognised until 1 December 1964 (with the passage
of the Muslim Marriage and Divorce Act). Indeed, the attitude of the
governing class and of the State to all non-Christians (which included
h non-mainstream Christian beliefs and observances) is illustrated by
the following. First, it was only on 16 August 1999 that Orisa marriages
were recognised. Second, from 1917 to 1951 the observances of the
Shouter Baptist faith were prohibited in Trinidad (commencing with the
Shouters Prohibition Ordinance of 28 November 1917 to its repeal on
i
30 March 1951).
The impact of the non-recognition of Hindu and Muslim marriages
was significant. It revealed the attitude to non-Christian religions.
Non-recognition also meant that children of Hindu and Muslim
marriages were ‘illegitimate’ and so ‘outside’ of the law for the
purposes of, for example, succession rights. Such an attitude was clearly
preferential towards Christian marriages and children born out of same a

and discriminatory towards Hindu and Muslim marriages and children
born out of these—not only from the point of view of individual and
collective status and esteem, but also from an economic point of view.
An illegitimate child could not inherent his/her parents’ property.
That this attitude prevailed until 1964 demonstrates that the b
experience of this societal inequality and discrimination is within the
living memory and experience of existing generations of citizens of
Trinidad and Tobago.
Another useful societal indication of the underlying christocentric
attitude and value systems of the governing class and of the state, is the c
choice of public holidays: ‘Christmas Day’, ‘Good Friday’,
‘Easter Monday’, ‘Whit Monday’ and ‘Corpus Christi’ are all Christian
public holidays which have been statutorily recognised since at
least 1872. (In the schedule to the relevant 1872 Ordinance and to the
1980 Revised Laws of Trinidad and Tobago (Chap 19:05) the following d
description of Corpus Christi appears: ‘Corpus Christi—first Thursday
after Trinity Sunday.’ Trinity Sunday is the first Sunday after Pentecost and is
observed in celebration of the Holy Trinity (emphasis mine)). Whit Monday,
which is the public holiday celebrating Pentecost (the descent of the
Holy Spirit on Jesus’s apostles, 50 days after Easter), was discontinued on e
16 February 1996 when it was replaced by Indian Arrival Day.
Against this background, the following non-Christian religious public
holidays are prescribed:
(i) Eid-ul-Fitr and Divali (Muslim and Hindu religious
celebrations)—Order made on 7 December 1979. f
And, the following public holidays in recognition of Emancipation,

Indian Arrival and Shouter Baptist Liberation are prescribed:
(ii) Emancipation Day—Order made on 15 October 1984. g

(iii) Indian Arrival Day—Order made on 12 May 1995.
(iv) Spiritual Baptist Liberation Shouter Day—Order made on
16 February 1996.
Once again the partiality towards Christian beliefs and observances as h

against non-Christian ones is obvious. Most of the significant events in
the Christian yearly cycle: the birth of Jesus, the crucifixion of Jesus,
the resurrection of Jesus, the descent of the Holy Spirit on the Apostles
of Jesus and the institution of the Holy Eucharist, are recognised and
celebrated by the State as public holidays. Yet, the same is not equally i
true for the significant events and observances in the Hindu and Muslim
yearly cycles.
Given that Independence was achieved in 1962, the timelines suggest
that a legitimate perception of non-Christians could have been that the
governing Trinidadian values were preferential to Christian religious
TPC SDMS v A-G 395
a beliefs (values) and observances. It cannot be over emphasised in this

analysis, that the proportions of Christians to Hindus and Muslims in
Trinidad and Tobago is closer to equality than not.
The above narrative and analysis is relevant because of the contention
by the applicants, in effect, that at the very least the Trinity Cross is or
b can rationally and reasonably be perceived by Hindus and Muslims living
in Trinidad and Tobago as an exclusively Christian symbol; and therefore,
that the choice by the State to use it as the symbol of its highest national
award is preferential to Christian beliefs and observances and thus
discriminatory, in the multi-religious and multi-cultural context of
c Trinidad and Tobago, given its above-stated history, culture, sociology
and demography.
That is, it is in effect argued by the applicants that given the timelines
under consideration, including the attaining of Independence in 1962
and the creation of the Order of the Trinity (and of the introduction of
d the Trinity Cross) in 1969, the historical, religious, cultural, sociological
and demographic context suggests that the Trinity Cross is rationally and
reasonably perceived as a Christian symbol, which in the historical
context of christocentric discrimination against Hindus and Muslims
in Trinidad, is discriminatory because of the rational and reasonable
e
aversion of Hindus and Muslims to be associated with such an award,
irrespective of their own theological perspectives about the idea of
‘Trinity’ and/or ‘Cross’ as understood in Christian orthodoxy.
However, it is important to also state that the above description is not
a complete picture of local society. In fact, though there are underlying
tensions among the different groupings in society, it is also true that our
f
people live together in relative peace and harmony. Furthermore,
in relation to the Canadian Christian mission it is also important to state
that together with evangelisation, the general intention of the mission
was for the well-being of the people.
g
THE TRINITY CROSS
I have already explained how the Order of the Trinity came into
existence (by Letters Patent dated 26 August 1969 issued by Her Majesty
Queen Elizabeth the Second). These Letters Patent were subsequently
h modified, pursuant to the 1976 Republican Constitution, to bring them
into conformity with the provisions and changes effected by that
Constitution—essentially conferring onto the President of the Republic
the roles and functions of Her Majesty and the Governor-General.
These Letters Patent state the intention and purpose of the Order of
i
the Trinity and of the Trinity Cross. The Trinity Cross is to be awarded
‘to any person who has rendered distinguished and outstanding service
to Trinidad and Tobago’. It is quite clear that neither its stated intention
nor purpose is religious per se. The Trinity Cross was intended to be and
is an honour conferred by the State for distinguished and outstanding service
to Trinidad and Tobago.
The Trinity Cross is also the nation’s highest award. This is made clear a
in cl 17 of the Letters Patent, which prescribes that (but for the Victoria
Cross and the George Cross) it shall take ‘precedence over all
other decorations’. Every citizen of Trinidad and Tobago is eligible for
the award of the Trinity Cross (as well as persons who are not citizens of
Trinidad and Tobago). And, any person or organisation may nominate a b
citizen of Trinidad and Tobago for the award of the Trinity Cross (cl 9).
In fact and in practice, the nomination forms and instructions issued by
the State confirm the above and explain that awards are made by the
President on the advice of the Prime Minister ‘and with the consent of
the nominee’. Indeed, the advertisement published in a newspaper by the c
Office of the Prime Minister with respect to National Awards for 2004
states in bold graphics: ‘Over 1.3 Million People And Every One Has The
Chance To Be Honoured.’
Despite the stated intention and purpose of the award of the Trinity
Cross, the applicants contend nevertheless that the Trinity Cross is in d
breach of their 4(b), (d) and (h) rights under the 1976 Constitution,
because of the effect of the award. That is, the applicants contend that
irrespective of purpose and/or intention, the Trinity Cross is an overtly
Christian symbol in name, substance and signification. And,
given prevailing demographics and the historical, cultural and e
sociological experiences and religious beliefs of Hindus and Muslims in
Trinidad, it is rational, reasonable and legitimate for Hindus and Muslims
to consider the Trinity Cross an anathema and to consider its existence as
the nation’s highest award disrespectful, unfair and discriminatory, as they
are unequally inhibited in participating in the process of nominating,
being nominated for or consenting to the award of the Trinity Cross. f
On 17 October 1963, shortly after Independence, Cabinet appointed
a Committee ‘to make recommendations to Cabinet on the question of
Local Awards’ (Cabinet Minute No 1081).
The ‘first’ report of that Committee (which turned out to be a four
man committee—two members recorded as having not served) g
was completed on 17 September 1964. The Committee stated its task
as being:
‘A review of the country’s existing system of awards and a study
of what changes may be necessary or advisable to bring it in h
appropriate harmony with the country’s independent status and its
constitutional character as a Monarchy and a Member of the British
Commonwealth of Nations.’
It would appear that though the ‘solicitation of views … of the Public’ i
was ‘considered to be very essential’, because of the ‘nature of
the subject’ the approach taken was that the deliberations of the
Committee ‘should be sheltered, as far as possible, from the arena of
public controversy’. As a consequence the report describes the strategy
adopted by the Committee as follows:
TPC SDMS v A-G 397
a ‘It was therefore decided that the matter should be pursued on a

confidential basis and that informal discussions would be held with
key personnel of widely representative organizations or appropriate
ones in a position to assist. It was hoped by this means to collate a
fairly wide cross-section of informed thinking on the subject.
b A Confidential Circular Letter was issued in the following terms:
“I should like to inform you that Government has set up a
Committee to consider, and make recommendations with
respect to, the conferring of National Awards. The nature of
this assignment is, for various reasons, one that ought to be
c handled with a certain degree of confidentiality, and this
inhibits the normal approach of inviting memoranda from
members of the public who may be interested.
The Committee however wishes to invite your
co-operation, and would be grateful for any assistance or
d advice you may feel able to offer on the matter both generally
and/or with particular reference to your organization.
The Committee has therefore, authorized its Secretary, and
some of its members to hold confidential discussions on the
matter with key personnel in various organizations.” ’
e
And, the report notes that copies of this letter were sent to various
organisations, including religious organisations. (At pp 2 and 3.)
Having outlined the trends of views expressed to the Committee, the
report summarised the position as follows:
f
‘The situation then clearly indicated the direction in which a
solution to the problem may lie; compromise or combination that
is to say the partial retention of certain Commonwealth Awards and
the introduction of purely local ones.’
g
And, in pursuance of this approach the Committee recommended:
(i) The creation of a Standing National Awards Committee.

(ii) ‘That Trinidad and Tobago should continue to participate in
h the system of Commonwealth Awards’ and listed nine such awards
to be continued.
(iii) The introduction of ten local awards, including (in order
of precedence):
i
(i) The Order of the Society of Honour of Trinidad and
Tobago (a silver shield with golden Coat-of-Arms), for
‘exceptionally distinguished service’.
(ii) The Trinity Star (gold with rosette—for persons of
‘considerable status’ who have (a) ‘discharged extraordinary
responsibilities or rendered exceptional or
distinguished service’, or (b) made ‘very valuable a

contributions … or achieved wide eminence or renown’).
(iii) The Trinity Cross (gold—for ‘exceptional courage and
bravery’ or ‘a prolonged gallantry or heroism’).
b
In this first report, the Committee gave no explanations for its choices
of the word ‘Trinity’ in either ‘The Trinity Star’ or ‘The Trinity Cross’
awards recommended to Cabinet.
By a ‘second’ report, the Committee submitted its recommendations c
pursuant to another Cabinet directive (Cabinet Minute No 1062) dated
6 June 1968. This directive requested recommendations from the
Committee on the question ‘whether the number of proposed separate awards
and classes may not be reduced’. This request was against the background of
certain ‘National Awards which were approved by Cabinet on the 21st
December 1967’, and which had been divided into two d
categories—Civil Awards and Gallantry Awards, as follows:
(a) CIVIL AWARDS: e

(i) The ‘Trinity Cross’: (One class—gold)
Based on the Trinity Hills.
For distinguished and outstanding service to the country by
nationals in the public or private sector, and the non-citizens
who have rendered outstanding and distinguished service to f
the country.
(ii) The ‘Chaconia Medal’: (Three classes—gold, silver
and bronze)
Based on the national flower.
To social workers; community workers in all organizations g
which promote community spirit and national welfare:
for long and meritorious service to the country or the
community in their respective groups.
(iii) The ‘Humming Bird Medal’: (Three classes—gold, silver
and bronze) h
To all persons who have rendered loyal and devoted service
to the country in their respective fields of endeavour, which
redound to the benefits or prestige of the community or
country, such as members of the Labour Movement; writers
and painters and other artists; artistes and sportsmen; i
agriculturists, manufacturers and businessmen; organizers of
activities of worthy import; workers in the cultural fields, etc;
and for outstanding humane action.
(iv) The ‘Trinidad and Tobago Medal of Merit’: (Three
classes—gold, silver and bronze)
TPC SDMS v A-G 399
a To members of the Public Service, Statutory Boards and

other quasi government organizations, who have rendered
outstanding and meritorious service beyond the call of duty.
(b) GALLANTRY AWARDS:
b (i) The ‘Trinidad and Tobago Distinguished Service Medal’:
(One class—gold)
The members of the Armed Forces (Army, Navy and Air
Force) members of the Police and Fire Services, and members
of the Merchant Marine, for gallantry in the face of the
c enemy or for gallant conduct and devotion to duty in peace
or war.
(ii) The ‘Trinidad and Tobago Meritorious Service Medal’:
(Two classes—gold and silver)
To members of the Services cited in Item 7(b)(i) above, as
also members of the Prison Services, the St John Ambulance
d
Brigade, the Red Cross, the Scout Movement, and other
similar and associated services, for long and
meritorious service.
(iii) National Service Citation: (With silver Medal)
Parchment presentation to members of the Services cited in
e Item 7(b)(i) and (ii) in recognition of good service and
commendable conduct.
The recommendations of the Committee in its second report were for

four awards, in order of precedence as follows:
f
(i) ‘The Trinity Cross (based on the Trinity Hills). One class—Gold.
For distinguished and outstanding service to the country: or for
gallantry …’ And to non-citizens for distinguished and outstanding
g
service to the country.
(ii) ‘The Chaconia Medal (Based on the National Flower).
Three classes—Gold, Silver and Bronze.’
(iii) ‘The Humming Bird Medal. Three classes—Gold, Silver
and Bronze.’
(iv) The ‘Public Service Medal of Merit. With three classes of
h
medals—Gold, Silver and Bronze.’
The recommendations in the second report of the Committee were

generally accepted, as the schedule to the Letters Patent issued in
i
August 1969 refers to four categories of awards which make persons
members of the Order of the Trinity, namely: the ‘Trinity Cross’
(gold only), ‘Chaconia Medal’ (gold, silver, bronze), ‘Humming Bird
Medal’ (gold, silver, bronze) and ‘Medal of Merit’ (gold, silver, bronze).
Annexed to this judgment is a full colour photocopy of a photograph
of the front of the Trinity Cross. The agreed elements of the emblem are:
‘A gold medal with dimensions 52 millimetres long by a

38 millimetres wide suspended from a ribbon with the national
colours red, a white edged black central stripe and yellow edges.
The front:
1. A ship’s wheel at the top.
2. A helm or helmet facing front, beneath it. b
3. A large circle (18 millimetres in diameter) with four splayed
arms of equal length (11 millimetres long) emanating from the
circle; one arm facing north, one facing south, one facing west and
one facing east at a 90º angle from each other; the arms wider at
the ends (12 millimetres) than at the centre (5 millimetres); three of c
the four edges on each arm are straight.
4. Inside the large circle the words “FOR DISTINGUISHED
SERVICE” are embossed in a ring around the circle.
5. Inside the large circle is a smaller circle with three mountain
peaks in the middle with the sea beneath. d
6. In between each of the four arms and resting on a flat base
lies a bird with wings spread—a scarlet ibis on the top left and a
cocrico on the top right; a cocrico on the bottom left and a scarlet
ibis on the bottom right.
The back: e
1. An irregular shape with a circle resembling a coin in the
middle with the words “TRINIDAD AND TOBAGO” embossed
around the inside of the circle.
2. The words “YDL 10K T’DAD” embossed at the bottom.’
In interpreting the motifs incorporated in the Trinity Cross great f
assistance can be had from the Coat of Arms of Trinidad and Tobago,
which was designed and formally agreed to be used in 1962. A full
colour photocopy of the Coat of Arms of Trinidad and Tobago is also
annexed to this judgment [Editor’s note: annex not reproduced for the
purposes of this report.] g
The following meanings/interpretations are agreed with respect to the
relevant motifs in the Coat of Arms (and are in any event matters
well known and indisputable):
(i) Supporting the Shield, on the dexter side is a Scarlet Ibis and h
on the sinister side a Cocrico (both birds are indigenous to Trinidad
and Tobago—the Cocrico being particularly native to Tobago),
and representing respectively the islands of Trinidad and Tobago.
(ii) The Three Peaks on the side of the Scarlet Ibis (which were
principal motifs of Trinidad’s early British Colonial Seals and i
Flag—Badges), commemorate both Columbus’s decision to name
Trinidad after the Blessed Trinity and the Three Peaks of the
southern mountain range (called the ‘Three Sisters’) in Trinidad
which a sailor on Columbus’s ship saw when the island was first
sighted during Columbus’s third voyage.
TPC SDMS v A-G 401
a (iii) The Gold helmet facing front in the Helm represents Her
Majesty the Queen of England.
(iv) A golden ship’s wheel in the Crest.
b
One can see that the motifs in the Trinity Cross mirror to a certain
extent the basic arrangement of the motifs in the Coat of Arms. That is,
starting from the top of the Trinity Cross: a golden ship’s wheel, a gold
helmet facing front, a cross pattee overlaid by and bearing a centrally
placed circle embossed with the Three Peaks at its centre and with the
inscription ‘For Distinguished Service’ and flanked by identical pairs of
c
the Scarlet Ibis and the Cocrico (which mirrors the Shield in the Coat
of Arms).
Historically, the Cross Pattee became popular in medieval heraldry
and was an adaptation of the Greek Cross (with equal length arms),
which was one of the original forms of the cross used by Christians
d (believed to have been in use from about the 5th Century—see
BM Metzger, MD Coogan The Oxford Companion to the Bible (1993)
p 57). It is believed that the Latin or Passion Cross (which has a longer
vertical shaft with equal length horizontal arms) entered into Christian
usage in about the 8th or 9th Centuries.
e Thus, one can conclude that from a religious perspective, the motifs
of the cross pattee and of the Three Peaks used in the Trinity Cross have
both longstanding general and specific Christian associations and
usage—the cross pattee being one of the original forms of cross used as
the central symbol of Christianity and the Three Peaks being one of the
f local symbols used in the context of Trinidad’s unique history to
designate the Blessed Trinity (God) in Christianity. Significantly, the
arrangement and positioning of these two central motifs (literally and
symbolically) are such that their Christian associations pragmatically
impart interpretation and meaning to the intention to base the Trinity
g Cross on the Trinity Hills. That is, in Trinidad and Tobago the Trinity
Hills are understood and interpreted in the context of Columbus’s
signification of them.
Apart from the religious perspective, it is I think fair to comment,
using the meanings of similar motifs in the Coat of Arms, and to
h conclude, that the golden wheel and front-facing golden helmet, link
the Trinity Cross to Trinidad’s ‘discovery’ by seafaring Europeans and its
colonial history under the British; that the Scarlet Ibis and Cocrico
symbolise indigenous Trinidad and Tobago; and further, that the
inscription on the face of the Trinity Cross declares the intention and
i
purpose of the award.
Apart from the above, and in relation specifically to the use of a cross
as one of the central motifs in the Trinity Cross, it is important to note
that the cross has, particularly in the history of western civilizations,
been used as a symbol for outstanding bravery, heroism, valour
and gallantry.
Trinidad, as a former colony of Britain and member of the a

Commonwealth, has been greatly influenced by European and British
christocentric values and traditions. And, as a result of this historical link
with Britain, Trinidad and Tobago shares identifiable traditions and
customs with it.
Indeed, the First Report of the National Awards Committee desired b
to retain and recommended the continuation of pre-independence
Commonwealth Awards conferred by Her Majesty, including
The Victoria Cross and The George Cross. In fact, in the schedule to
Her Majesty’s Letters Patent, reference is made to these two awards, at
cl 17(1), which when dealing with orders of precedence provides: c
‘When worn in Trinidad and Tobago by a citizen of Trinidad and

Tobago the Trinity Cross shall be worn suspended from the neck
and takes precedence of all other decorations except the Victoria
Cross and the George Cross.’ d
Thus, though it is clear from the Constitution of the Order of the

Trinity that the Trinity Cross was to be the highest and most prestigious
award in Trinidad and Tobago, the Victoria Cross and George Cross were
to take precedence over it. e
The Victoria Cross is the highest award for exceptional valour
displayed ‘in the face of the enemy’ that can be awarded to members of
the British and Commonwealth forces.
It was first issued on 29 January 1856 for acts of valour during the
Crimean War of 1854–1855. It was instituted by and named after f
Queen Victoria, who reigned as Queen of the United Kingdom from
20 June 1837 to 22 January 1901. It takes the form of a cross pattee,
bearing on the front a crown, surmounted by a lion and the inscription
‘FOR VALOUR’.
The George Cross is the corresponding honour for civilians for acts of g
valour that do not qualify as ‘in the face of the enemy’. It is second only
to the Victoria Cross. The George Cross was instituted by
King George VI in 1940, when the German Luftwaffe subjected the
civilian population of Britain to mass bombing. It is awarded for acts of
the greatest heroism, of the most conspicuous courage, in circumstances h
of extreme danger. Though instituted by King George VI, the
George Cross was named after St George (born in 270 AD) the patron
saint of England.
It is believed that St George, while on one of his missions as a soldier
serving under the Roman Emperor Dioletian, was in England and heard i
of the torturing and putting to death of Christians because of their faith
and returned to Rome and begged the Emperor to desist from
such action. It is believed that the Emperor tried to get George to give
up his Christian beliefs, but he refused, and was beheaded in Lydala,
Palestine on 23 April 303 AD. Around 900 AD George was universally
TPC SDMS v A-G 403
a recognised as a Saint among Christians. The banner of St George

(the martyr)—a red cross on a white background, was integrated into the
uniforms of British soldiers around the reign of Richard I and later
became the flag of England. By the end of the 14th Century Saint
George had been officially acknowledged as Patron Saint of England.
b The George Cross is in the form of a Greek Cross. On the front is
depicted St George slaying the dragon, with the inscription
‘For Gallantry’. (The legend of George and the Dragon is considered an
allegory of the persecution of Christians by Dioletian, who was
sometimes referred to a[s] ‘the dragon’ in ancient texts.) Clearly the
c George Cross has profoundly overt Christian associations
and symbolisms.
This extended discussion about the Victoria Cross and the
George Cross is relevant to the issues raised in this case, because the
respondent has contended that neither the words ‘Trinity’ or ‘Cross’ nor
d the actual Trinity Cross in terms of its design and motifs can reasonably
be considered Christian or associated with Christianity.
I disagree with all aspects of this contention.
In the context of Trinidad and Tobago, given its history, it is quite
e clear that the words ‘Trinity’ and ‘Cross’ can be associated with the
Blessed Trinity and the cross of the Christian religion. To link the words
reinforces that association.
In my opinion, to argue that in Trinidad and Tobago a reference to
‘The Trinity Cross’ would not reasonably or likely evoke Christian
f associations is erroneous. The historical context and reasons that
demonstrate this error have already been outlined.
But contemporary reasons for this association in Trinidad and Tobago
also exist.
g
At present, the American Christian evangelical cable television station
‘TBN’ is received and transmitted to and viewed by thousands in
Trinidad and Tobago. ‘TBN’ stands for Trinity Broadcasting Network. Also,
the local Roman Catholic (Christian) television agency, is known as the
‘Trinity Television, Channel 10’. And, the Anglican Cathedral in the
capital city is the ‘Cathedral Church of the Holy Trinity’.
h
Further, the cross remains a highly publicised Christian symbol—if
not the dominant Christian motif across all Christian traditions in
Trinidad and Tobago. For example, on every church (and there are
hundreds throughout Trinidad and Tobago—Roman Catholic, Anglican,
i Presbyterian, Methodist, Baptist, Evangelical non-denominational)
and every church school and every church building—variations of the
cross appear. Crosses are worn and publicly shown by thousands of
Christians throughout Trinidad and Tobago—not just to church, but to
work and at play.
In my opinion, the local conditions in Trinidad and Tobago, both a

historical and contemporary, attest to the long-standing and widespread
use and association of ‘Trinity’ and ‘Cross’ by and with Christian beliefs
and observances.
In my opinion, it is entirely unrealistic to suggest that the existence or
linking of ‘Trinity’ and ‘Cross’ in the ‘Trinity Cross’ is not likely to evoke b
Christian associations in a plural society like Trinidad and Tobago,
because the concepts of ‘trinity’ and ‘cross’ are known to Hindus; or that
since the ‘Trinity’ in ‘Trinity Cross’ is based on the ‘Trinity Hills’ it
cannot be offensive to anyone.
c
With respect to the first contention, it is in my opinion quite
disrespectful and also inaccurate to suggest that there are concepts
equivalent to the Christian concepts of ‘trinity’ and ‘cross’ in Hinduism;
or even that there is a concept of ‘trinity’ or ‘cross’ per se in Hinduism.
In Hinduism, there is a concept of ‘Trimurti’, representing the triad of d
Brahma (the creative aspect of God), Vishnu (the preservative aspect
of God) and Shiva (the destructive or reabsorbative aspect of God).
The triad are all of equal strength and potency, emanating as manifested
aspects of the same one unmanifested Brahman (‘Ekam Vipra Satya
Bahuda Vadanti’—Truth (God) is one but it is called by different names). e
To suggest that the Holy Trinity in mainstream Christianity represents
the triad of Brahma, Vishnu and Shiva, or that Columbus could have
been open to that association in 1492 when he named Trinidad (and the
Trinity Hills) after the Holy Trinity in Christianity, demonstrates without
more why the converse is equally absurd. f
No Hindu in Trinidad and Tobago, hearing the word ‘Trinity’ in
association with ‘Cross’, as in ‘Trinity Cross’, would naturally or
spontaneously associate its usage with the Hindu concept and
understanding of ‘Trimurti’. Indeed, no Hindu scholar would likely do
the same. g
Equally with respect to the cross. In Hinduism there is a motif known
as the ‘swastika’—[…], which is an auspicious symbol. Its name is likely
derived from a combination of ‘su’ (well), ‘asti’ (is) and ‘ka’
(a noun ending)—that is, ‘It is well’. Its design is believed by many to be
derived from either the wheel (symbolically reduced to four spokes set at h
right angles)—which is in itself an auspicious symbol in Hinduism
and/or from the two fire sticks of the Vedic sacrificial fire, which were
usually set down at right angles to one another.
Clearly, to suggest that the cross in Christianity and the swastika in
Hinduism are in some way similar or even related is fallacious. i
How would mainstream Christians respond if told that the sacrifice of
Jesus on the cross could be associated with the Vedic sacrificial fire?
To pose this question and observe the truthful response, is all that is
necessary to test and refute this aspect of the respondent’s contention.
TPC SDMS v A-G 405
a Religion is not an entirely intellectual affair. Religion is also about

beliefs, traditions, observances and feelings. Religion is about a person’s
and a community’s experience, identity and existence—and to this
extent it is subjective.
I accept without reservation, that given the historical, sociological and
b religious experience of Hindus in Trinidad and Tobago (including the
colonial indentured experience) and given the Hindus’ religious beliefs
and observances (including the belief in the extraordinariness of
its avatars, such as Shri Rama and Shri Krishna—incarnations of God,
and the absolute disparagement of these by mainstream Christian
c proselyzers), for a Hindu who perceived the Trinity Cross as having
Christian symbolism, to nominate someone or be nominated for it, or to
consent to accept or to wear it, could reasonably and naturally be a cause
for discomfort.
How would a Jew feel if asked to wear the ‘Hakenkurz’ as the highest
d medal of honour? The point here is not to equate the colonial Indian
indentured experience with the Jewish holocaust experience; but equally
it is vital not to minimise the Indian indentured experience in a
christocentric colonial and post-colonial Trinidad and Tobago. It may be
that better comparative indicators, would be the consideration of a
e
Christian nominating or being nominated for, or consenting to accept or
to wear as the highest National Award of Trinidad and Tobago,
the ‘Allah Crescent’ or the ‘Brahman AUM’, the central motifs of which
would be respectively: […] and […], the ‘crescent moon’ of Islam and
the ‘AUM’ of Hinduism; and to be told that they are based on natural
phenomena and a universal cosmic sound and that ‘Allah’ and ‘Brahman’
f mean ‘God’ which is a concept known and worshiped in Christianity.
The best example of the Hindu Indian response to the Trinity Cross,
is that of His Holiness the Dharmacharya Pundit Krishna Maharaj who,
in a highly publicised affair in August—September 1995, in writing to
His Excellency the President of Trinidad and Tobago, declined receipt of
g the Trinity Cross—accepting ‘the tribute’ but not ‘the award itself ’.
The headlines in some of the daily newspapers at the time included:
‘Pundit blanks Trinity Cross’ (Guardian Newspaper); ‘Hindu Leader
Rejects Trinity Cross—Top award “a symbol of Christianity” ’
(Newsday Newspaper, 1 September); and ‘Hindu high priest: No cross
h around my neck’ (Newsday Newspaper, 31 August).
And, Professor Selwyn Ryan, respected sociologist at the University
of the West Indies, writing at that time on ‘the controversy over naming
the nation’s highest award, the Trinity Cross’ (Express Newspaper,
10 September 1995) stated:
i
‘The inclusion of the term “Cross” in the label given to the
country’s highest honour is also said to contribute to the sense of
“alienation” and lack of patriotism felt by many.
“How can such a large part of our population feel a sense of
belonging and patriotism when the highest award to which they
can aspire evades their very presence by acknowledging the a

Christian cross and failing to recognize the Muslim crescent or the
Hindu Om?” (Quoting the Secretary of the Caribbean
Hindu Centre).
Older generations of Indians were, with a few exceptions,
prepared to defer and genuflect to the dominant Eurocentric and b
Christian value system of the society, preferring to concentrate
instead on economic, cultural and educational self-help
and improvement. They saw themselves as being marginals in the
society who had to petition the Establishment for opportunity and
political protection. Now that a certain platform of achievement c
has been reached in several critical areas of the society,
group confidence is high.
My own view on this particular issue is that as galling as it might
be to fundamentalist Christians, the use of the term cross,
a religious symbol with significance for only one section of the d
population, should be discontinued, and a more culturally neutral
term found to denote the country’s highest national honour.
It should be done quickly and with grace. Those who chose the
label did so without giving much thought to the implications of
their decision, simply because it was epistemologically difficult for e
them to do so.
The world today, however, is quite a different place from what
obtained in the Forties, Fifties and Sixties. Then, societies were
unthinkingly rushing along the path of westernization without
asking questions about the validity and universality of western
cultural assumptions. f
Multi-culturalism is now, however, a widely cherished goal in
many societies.’
These excerpts from Professor Ryan are not cited here as evidence, g
but as opinion, which this court acknowledges reflects generally the
views of many non-Christian Indians in Trinidad and Tobago and which
also reflects accurately a mainstream post-modern interpretation of this
society’s sociological evolution viewed through the eyes of locals.
With respect to Islam, the opinion of this court is generally no h
different from that stated with respect to Hinduism in the context of the
local conditions in Trinidad and Tobago.
However, in Islam, there are clear and unequivocal beliefs that make
any association with the Christian beliefs in a trinitarian God and/or the
crucifixion of Jesus on the cross an anathema. i
In Christianity, the doctrine of the Holy Trinity formally entered the
religion with the formulation of the Nicene Creed at the First
(Ecumenical) Council of Nicaea, convened by the Roman Emperor
Constantine in 325AD. The Council was convened specifically to settle a
dispute raised between the Bishop of Alexandria and one of his
TPC SDMS v A-G 407
a priests—Arius. This dispute concerned the nature of the Trinity.

Arius (Arianism) contended for sub-ordinationism—that is, that
‘the Father’ is indivisible, transcendent and the singularly divine being.
Therefore, Arius contended, ‘the Son’ was not of the Father’s essence
and there was no equal ontological relationship between the two.
b The son was ‘begotten’ in the sense that he was ‘made’, and so is a
‘ktisma’ or ‘poie ma’, a creature. For Arianism, the concept of the Son is
summarised in the infamous phrase: ‘there was when he was not.’
The Nicene Creed, in rejecting this aspect of Arianism as heresy,
confesses that the Son is begotten, but affirms the ontological unity of
c the Son, stating that he is ‘true God from true God’ begotten
‘from the Father’ and ‘not made’. To put the matter beyond any doubt,
the Creed asserts of the Son that he is ‘from the being (ousia) of
the Father’ and ‘of one substance (homoousia) with the Father’.
The Council met again, some 56 years later (in 381AD), confirmed
d the Nicene Creed and amended it to add with respect to the Holy
Spirit, the assertion that the Holy Spirit had the same (ontological)
nature (divinity) as the Son. Thus, this Niceno—Constantinopolitan
creed (as it is known) established the orthodox teaching on the Holy
Trinity as it is understood within mainstream Christianity today.
e The final clarification to the understanding of the nature of Jesus was
effected at the Third (Ecumenical) Council—the Council of Ephesus,
in 431 AD. Here the emphasis was to denounce the Nestarianism
contention of the time (that Mary gave birth to a man, Jesus, and not
to God; and that the Word (‘Logos’) only dwelled in him: Jesus was
f therefore ‘Theophoros’—‘Bearer of God’) as heretical. The Council
decreed that Jesus was one person, complete God and complete man;
and that Mary was ‘Theotokos’—‘Mother of God’, because she gave
birth not to a man but to God as a man.
Thus, emerged the Doctrine of the Holy Trinity, as believed and
g understood in orthodox Christianity, the ‘homoousia’ of Father, Son
and Spirit—One triune God: Father, Son and Spirit; three distinct
persons, but of one and the same essence (nature). Thus, in the classic
formulation of the Nicene Creed, Jesus Christ is: ‘God of God, Light of
Light, very God of very God, begotten, not made, being of one
substance with the Father’. This doctrine of the Holy Trinity is the one
h
common doctrine that all manistran Christian denominations subscribe
to (even if with varying nuances). Put in local parlance: ‘The doctrine of
the Holy Trinity is as Christian as you can get.’
It is into this historical and doctrinal context that Islam emerged as a
world religion and joined issue with orthodox Christianity about the
i
nature of God and of Jesus (often in circumstances of ongoing wars and
disputes with Christians).
In Islam, the concept of God is unequivocally and uncompromisingly
monotheistic. This is most concisely reflected in the Shahada, the Islamic
declaration of faith, which states ‘La illaha illa llah’—‘there is no God but
God (Allah)’. Islam stresses that Allah is self-subsisting and sufficient a

without the need for forebears, offspring or equals. In Islam the doctrine
of ‘shirk’ or ‘association’ is considered an unforgivable sin. This doctrine
concerns the associating of other beings with God.
For example, in the Qu’ran (the Islamic scriptures—believed to have
been directly revealed to the Prophet Muhammad by Allah through the b
Angel Gabriel) it is stated:
‘They surely disbelieve who say: “Allah is the third of three
(a Trinity);” when there is no God except the one God. And if they
desist not from so saying, verily, a painful torment will fall on those c
of them who disbelieve.’ Al Maa’idah (the Table Spread) 5:73.
‘They indeed have disbelieved who say: “Allah is the Messiah,
son of Maryam (Mary).” ’ Al Maa’idah (the Table Spread) 5:17.
‘And the Jews say: “Uzair (Ezra) is the son of Allah,” and the
Christians say: “The Messiah is the son of Allah.” That is their d
saying with their mouths. They imitate the saying of those who
disbelieved of old. Allah (Himself) fighteth against them. How they
are deluded away from the truth! They (Jews and Christians) have
taken as Lords besides Allah their rabbis and their monks and the
Messiah son of Maryam (Mary), when they (Jews and Christians)
were commanded [in the Tawraat (Torah) and the Injeel (Gospel)] e
to worship One God. There is no God save Him. Be he glorified
from all partners that they associate (with Him).’ Al Tawbah
(Repentance) 9:30–31.
Orthodox Muslims therefore believe that the concept of the Holy f

Trinity is the essence of ‘shirk’ or disbelief in ‘tawheed’ (the oneness
of God). Such a belief is thus considered the gravest and most
unforgivable sin in Islam.
In fact in the Qu’ran it is specifically stated:
g
‘O people of the Scripture (Christians)! Do not exceed the limits
in your religion, nor say concerning Allah anything but the truth.
The Messiah “Eesa” (Jesus) son of Maryam (Mary), was no more
than a Messenger of Allah, and His Word which He bestowed on
Maryam (Mary), and a spirit (Rooh) created by Him. So believe in h
Allah and His Messengers, and say not: “Three (trinity)! – Cease!
(it is) better for you! – Allah is only One God. Far is it removed
from His transcendent majesty that he should have a son.’ Al Nisa’
(Women) 4:71.
‘And they say: “The Beneficient has taken onto Himself a son.” i
Assuredly you state a disastrous (false) thing.’ Maryam
(Mary) 9:88–89.
Here the Qu’ran refers to both the Christian doctrines of the Holy
Trinity and the Incarnation of Jesus and condemns both as erroneous.
TPC SDMS v A-G 409
a By these former verses of the Qu’ran Muslims are therefore prohibited

from associating with the Holy Trinity. As if to emphasise the point,
the Qu’ran in verse 175 states:
‘O Mankind! Now has a proof from your Lord come into you,
b and we have sent down to you a clear light (that is the revelation in
the Qu’ran).’
As to the cross, which in Christianity is associated with the

crucifixion of Jesus, Islam does not accept or believe in the crucifixion
c of Jesus. The Qur’an states:
‘That (the Jews) said: “We killed the Messiah Jesus the son of
Mary, the Messenger of Allah.” But they killed him not, nor
crucified him, but so it was made to appear to them; and those
who differ therein are full of doubts, with no (certain) knowledge,
d
but only conjecture to follow; for of a surety they killed him not,
this is certain. But Allah took him up unto Himself. Allah was very
Mighty, Wise.’ Al Nisa (Women) 4:157–158.
Indeed, in the Hadith or Sunnah of the Prophet Muhammed (as

e attested to and recorded by Sahib Bulchari), it is recorded that:
‘Allah’s Apostle (Muhammad) said, “By Him in Whose Hands

my soul is, son of Mary (Jesus) will shortly descend amongst you
people as a just ruler and will break the Cross …’
f
The ‘breaking of the cross’ in the text is interpreted as a repudiation of
the Christian beliefs associated with the crucifixion of Jesus on the cross.
In my opinion, it is both reasonable and rational for Muslims of
Trinidad and Tobago to legitimately not want to be associated with the
g Christian beliefs and symbols/motifs of the Holy Trinity and/or the
Crucifixion/Cross. In so far as the Trinity Cross includes and represents
those beliefs and symbols, it is reasonable, rational and legitimate for
Muslims in Trinidad and Tobago to not nominate persons or be
nominated for the Trinity Cross or to consent to accept or wear the
h Trinity Cross.
The angst over this issue by a Muslim is captured notoriously by the
experience of the Honourable Dr Wahid Ali, former President of the
Senate and Acting President of the Republic of Trinidad and Tobago
(who received the Trinity Cross in 1977).
i Writing in July 1992, Dr Ali explained (as stated in his book Building
Bridges in Society: selected speeches of Dr. Wahid Ali pp 27–31, in a chapter
entitled: ‘The Trinity Cross Issue—An Inappropriate National Award’):
‘Trinidad and Tobago is an independent Republican,

Caribbean nation. It attained independence on 31st August 1962.
Its population is multi-racial and multi-religious; its National a

Anthem proclaims “here every creed and race find an equal place.”
Our country adopted a Republican Constitution in 1976
(Act No. 4 of 1976) and among the Rights enshrined in Part 1 of
that most fundamental document is the “right to freedom of
conscience and religious belief and observance.” b
Not long after the attainment of independence the Government
of the day announced that it had accepted the recommendations of
a committee which had been studying the matter of appropriate
national awards. Thus the adoption of the “Order of the Trinity”
and of the “Trinity Cross” as the nation’s highest national award. c
Muslims believe in the Oneness of God; the concept of the “Trinity”
is un-Islamic. Muslims do not believe that the Holy Prophet Jesus died on
the cross and so the designation “Trinity Cross” as our nation’s highest
national award is objectionable to Muslims.
Not long after our nations’ independence I returned home from d
medical studies; the next year I was elected Vice-President of the
A.S.J.A. Inc., the most representative Muslim organisation in
the country. At the following General Meeting of that organisation
held at the Jama Masjid Hall, Queen Street, Port of Spain,
under the Presidency of the late Haji S.M.S. Rahaman, I proposed e
that the Muslim community should protest against the designation ‘Trinity
Cross’ as our nation’s highest national award. That proposal was
unanimously adopted by the meeting and publicised in the media.
In 1972, I was serving as President of the infant Inter-Religious
Organisation of Trinidad and Tobago, and also as President of our
country’s Senate. I wrote as a private citizen to certain prominent f
religious leaders in an effort to ascertain their reaction on this issue.
It was my intention that if the religious leaders consulted found the
designation inappropriate, I would raise the matter in the IRO with a view
to recommending a change.
In August 1977 His Excellency President Ellis Clarke T.C., g
through his secretary Mrs. Tam, as befits protocol in these matters,
informed me that I had been selected for the award of the
“Trinity Cross” for public service to be announced at that year’s
Independence Anniversary celebration. Without disclosing my reasons,
I indicated my intention to decline. At a later meeting, she informed h
me that President Clarke wished to advise me against declining,
as my nomination had been made by the Prime Minister,
Dr. Eric Williams. I have always had a high regard for these two
distinguished citizens of our country, and so was in a state
of perplexity. i
My next step was to discuss the matter with the Prime Minister who
gave the verbal assurance that the entire matter of national awards was to
be reviewed. I then consulted my local Ustad (Teacher) Haji Muhammad
Yusuff Francis whose counsel I have always treasured. He advised
TPC SDMS v A-G 411
a me to accept, emphasising that God knows what is in our hearts;

and in his opinion, I was doing a useful job in the public life. I had
indicated to him that the appropriate thing to do if I declined the award was
to resign my public office. After deep prayer and reflection I indicated to
Mrs. Tam that I would accept the award. I had made my bed and had
b to lie on it.
As a private citizen I am willing to join in a positive, civilised
approach to this problem. If, however, the promise made by Dr. Eric
Williams remains unknown (perhaps unrecorded before),
and unheeded, the question of my retaining the “The Trinity Cross”
c indefinitely will certainly merit serious consideration. Only Almighty God
knows the duration of our earthly lifespan.’
(The emphasised portions of Dr Ali’s statement reveal his
opinions and angst—which appear to be ongoing.)
d Thus, while it is clear that there may be Muslims and/or Hindus who
may have absolutely no problem with the Trinity Cross or may have
been nominated for it and accepted it, that does not negate the
reasonable, rational and legitimate objection by Muslims and Hindus to
the award.
e Indeed, this is the complaint of the applicants in this case.
In an affidavit sworn by the second named applicant on his own
behalf as a Hindu and as the Secretary General of the first named
applicant (and on its behalf), he stated their experiences, perceptions and
opinions as follows (at paras 6, 11, 12 and 17):
f
‘The SDMS have always objected to the retention and use of the
Trinity Cross as the nation’s highest award. The objection is
grounded in the fact that the cross is widely known and perceived
as a Christian symbol. The cross symbolizes the Christian belief that
g the son of Mary was crucified on a wooden cross. The concept of
the “Trinity” is also strongly connected to the Christian faith, as it
symbolizes the three aspects of Godhead—God the Father, God the
Son and God the Holy Ghost.
The SDMS has been forced to refrain from participating in the
h process for the nation’s highest honour and award because it
perceives it as and believes it to be a patently Christian Symbol.
Over the years we have approached many prominent Hindu,
Muslim and other non-Christian citizens who have refused to give
their consent for us to nominate them on the basis that should their
i
nomination succeed, it would be inconsistent with their religious
beliefs to accept the Trinity Cross and they would rather avoid this
potential embarrassment.
I have also been approached by various Hindu organizations
(including the SDMS) and the Global Organization for People of
Indian Origin (“GOPIO”) over the years but have always declined
to consent to being nominated because it is inconsistent with my a

religious beliefs to accept or wear the Trinity Cross. Over the years
many deserving candidates have refused to consent to being
nominated when approached by the SDMS. This include the late
Pundits Krishna Maharaj, Siewdath Maharaj (deceased), Uttam
Maharaj, Sharma Basdeo, Vishnu Harribachan, Capildeo Maharaj, b
Lakshmidath Persad Maharaj and the late Bhadase,
Dr. Omah Maharaj. Other outstanding individuals who were
approached but declined for the same reason include Raj Jadoo,
Bally Ramkissoon, Ramlogan Palloo, Chandrika Maharaj,
Chandrawatie Maharaj, Shanti Mahraj and Devant Maharaj. c
The SDMS and its Hindu members and I have no grouse with
our Christian brothers and sisters and the many distinguished
recipients of the Trinity Cross. Our problem and grievance lies
with the State because it refuses to change the name and symbol of
the nation’s highest award/honour despite the knowledge that it is d
in fact, and/or is widely perceived to be, a Christian symbol and is
therefore not acceptable to non-Christians.’
The first named applicant (the SDMS) was duly incorporated on

11 June 1952, and claims to be the largest representative organisation for e
members of the Hindu Faith in Trinidad and Tobago. In fact the SDMS
owns and runs 43 primary schools, 12 pre-schools, 5 colleges and
150 Mandirs in Trinidad and Tobago and has over 200 branches
throughout Trinidad and Tobago.
In similar language the fourth named applicant stated his and the third f
named applicant’s (IRCL) experiences, perceptions and opinions
as follows (at paras 4, 5, 6, 10, 15 and 19):
‘The IRCL has over the past two years approached many of its
members and several prominent members of the local Muslim g
community with a view to obtaining their consent to being
nominated for consideration by the National Awards Committee
for the nation’s highest award, the Trinity Cross. Our members
including Zianool Ali, Shaliza Ali, Kazim Mohammed, Mallana
Imran Hosein and Haseeb Majid have all declined nomination on h
the basis that the Trinity Cross is essentially a Christian Symbol and
it would conflict with their religions belief to accept such an award
in the event they were chosen.
The IRCL in a paid newspaper advertisement on 23rd day of
September, 2004 publicly criticized the “Trinity Cross” because we i
are of the view that this award is a Christian Symbol. Muslims have
their own religious symbol, which is a half-crescent moon and
a star. We are of the view that the symbol and award of the Trinity
Cross amounts to religious discrimination against non-Christians
in society.
TPC SDMS v A-G 413
a I have also been approached by the executive of the IRCL and

members of the wider Muslim and national community with a
view to obtaining my consent to be nominated for the
Trinity Cross. I too have declined to consent to being nominated
because I am of the view that it would conflict with my religious
b scriptures and belief to accept/wear the Trinity Cross.
The IRCL have always objected to the retention and use of the
Trinity Cross as the nation’s highest award. The objection is
grounded in the fact that the Cross is widely known and perceived
as a Christian symbol. The Cross symbolizes the Christian belief
c that the son of Mary was crucified on a wooden cross. The concept
of the “Trinity” is also strongly connected to the Christian faith,
as it symbolizes the three aspects of Godhead—God the Father,
God the Son and God the Holy Ghost.
The IRCL has been forced to refrain from participating in the
d process for the nation’s highest honour and award because it
perceives it as and believes it to be a patently Christian Symbol.
Over the years we have approached many prominent Hindu,
Muslim and non-Christian citizens who have refused to give their
consent for us to nominate them. They have stated that should their
e
nomination succeed, it would be inconsistent with their religious
beliefs to accept the Trinity Cross and they would rather avoid this
potential embarrassment.
The IRCL and its Muslim members and I have no grouse with
our Christian brothers and sisters and the many distinguished
recipients of the Trinity Cross. Our problem and grievance lies
f with the State because it refuses to change the name and symbol of
the nation’s highest award/honour despite the knowledge that it is
in fact, and/or is widely perceived to be, a Christian symbol and is
therefore not acceptable to non-Christian.’
g
The IRCL is an Islamic organisation and was formed in 2002 and

duly incorporated in 2004. It claims to have a membership of one
thousand persons. In its newspaper advertisement referred to above the
h IRCL set out the Quranic and theological bases for its (Islam’s)
objections to the Trinity Cross; they parallel the Quranic texts cited and
what is stated hereinabove.
The controversial nature of the Trinity Cross is however not limited to
the matters set out above.
i
In 1997, pursuant to a decision of the Cabinet (made on
30 January 1997 pursuant to s 8(d) of the schedule to the Letters Patent),
the National Awards Committee met by virtue of a mandate given to it
by His Excellency the President (of the Republic of Trinidad
and Tobago) and Chancellor of the Order of the Trinity to consider the
National Awards System.
Of the six issues considered by the Committee, the third was: a

‘What should be the National Awards? In particular ought the Trinity
Cross to be retained and, if not, what should replace it? Should any
other changes be made in the National Awards?’
By its report (dated 6 August 1997) the Committee, in respect of the
third issue, stated as follows: b
‘Regarding the name of the awards, members considered the

views that have been expressed by members of the public over a
period of time. The Trinity Cross, the country’s highest award,
c
has attracted negative criticism particularly on account of the word
“Cross” which is perceived as a Christian symbol. It was put to the
meeting that the cross is not exclusively a Christian symbol so that
argument for change is based on a false premise. The point was
made also that “Trinity” may also be regarded as a Christian
reference but that if one followed the argument through to its d
logical conclusion, “Trinidad”, as part of the country’s name, would
also have to be changed.
It was suggested that the “Trinity Cross” as the nation’s highest
award should be changed to “The Order of Trinidad and Tobago”
thereby embracing the entire country. The majority was in favour e
of changing the name of the award. However, the Committee was
evenly divided on the choice of name for the award i.e. as between
“Order of the Trinity” on the one hand and “Order of Trinidad
and Tobago” on the other. Those supporting the former made the
point that it would serve to maintain a link with the award under f
its original designation.
The Chairman informed the Committee that SPINK of
London, dealers in Fine Art and Royal Medallists, had proposed to
His Excellency the President (in 1995) certain “modifications and
enhancements to better serve the diverse requirements of the g
Trinidad and Tobago Honours System.” SPINK indicated that the
Trinidad and Tobago honours system at present did not conform to
international standards. They proposed the modification of the
present Order of the Trinity into three “Orders” and one “Medal”
as well as a “Decoration” for gallantry. The details are contained in h
the attached report of a meeting between the Secretary of the
National Awards Committee and a representative of SPINK on
Friday April 18, 1997.
The Committee agreed to support with some amendments the
proposals by SPINK and to recommend three (3) Orders i.e. the i
Order either of Trinidad and Tobago or of the Trinity, the Order of
the Chaconia and the Order of the Humming Bird, with three (3)
classes in each Order, and three (3) Medals i.e. the Public Service
Medal of Merit, the Military Medal of Merit and the Sun of Valour
(for gallantry).’
TPC SDMS v A-G 415
a It is worth noting that that Committee comprised two former

Chief Justices, who were members of the Order of the Trinity and
recipients of the Trinity Cross: The Honourable Mr Justice Michael de la
Bastide TC (chairman) and The Honourable Sir Isaac Hyatali TC
(the former being the current President of the Caribbean Court
b of Justice).
This Committee also ‘strongly’ recommended that their report be
made available for public comment and the public be invited to express
its views on all of the issues placed before the Committee.
In the report of the meeting between the Secretary of the National
c Awards Committee and a representative of SPINK (Mr Eagleton),
what was proposed by SPINK was ‘The Order of Trinidad and Tobago’ to
‘replace The Trinity Cross’, having taken ‘account of the objections raised
by some concerning the “Order of the Trinity” ’ (referred to in a letter
dated 6 December 1996 from SPINK to His Excellency the President of
d the Republic of Trinidad and Tobago).
In that letter Mr Eagleton on behalf of SPINK stated inter alia
(the court’s emphasis):
‘The Order of Trinidad and Tobago might be a suitable award to replace

e the controversial Trinity Cross. It also comprises the protocolaire
complement of insignia accorded to heads of state and
international dignitaries.
Throughout, we have avoided religious symbolism, focusing on the
flora and fauna of Trinidad and Tobago. The Cocorico has been
f overthrown by the Mott Mott bird owing to its recent
unpopularity in Tobago. The two birds—the Scarlet Ibis and the
Mott Mott are placed to complement one another on the badge of
the Order of Trinidad and Tobago. This gives an idea of what can
be done.’
g
In fact, since 2003 there have been about 67 articles written in the
local daily newspapers about the Trinity Cross. A rough evaluation
(based on research done by the court) suggests that of these 67 articles,
15 were in favour of retaining the Trinity Cross, 22 were in favour of
h changing it and about 30 may be considered ‘neutral’. This information
is not cited for any ‘evidential’ purpose, but merely as anecdotal and
illustrative of the local conditions, which are publicly notorious
and indisputable.
The simple fact is that in Trinidad and Tobago for a very long time
i
(relative to the creation of the award) the Trinity Cross has been a
controversial award because of its indisputable Christian associations.
This court also takes judicial notice of the recent annual occurrence of
a ‘National Awards Ceremony’ put on by the Global Organization of
People of Indian Origin (GOPIO), which is an obvious counter cultural
response to the failure by the State to revise the existing
National Awards. Again, though not evidence before this court, a

this court notes that at the 2005 GOPIO National Awards Ceremony
Mr Reginal Dumas (member of the above 1997 de la Bastide National
Awards Committee) gave a much publicised feature address and roundly
criticised the Trinity Cross because of its exclusive Christian symbolism.
This court as a determiner of fact is of the clear view that the Trinity b
Cross, both in name and design, in the particular historical, sociological
and religious context of Trinidad and Tobago, is reasonably, rationally and
legitimately perceived by Hindus and Muslims as having unequivocal
Christian religious associations. And, given the experiences and the
reasonable, rational and legitimate perceptions and beliefs of Hindus c
and Muslims, it is reasonable, rational and legitimate for Hindus and/or
Muslims in Trinidad and Tobago to not participate in the process of
nominating persons or being nominated for or consenting to accept or
receive or wear the Trinity Cross.
The questions in law that follow upon these findings of fact are d
whether in light of them there has been or is likely to be any
contravention of s 4(b), (d) and/or (h) of the 1976 Constitution in
relation to any or all of the applicants.
ENTITLEMENT TO RELIEF, 1976 CONSTITUTION
The respondent argued that the applicants were not entitled to any e
relief under the 1976 Constitution, and advanced two arguments in
relation to this:
(i) The first and third named applicants as corporate entities

cannot enjoy the protection of and sue for an alleged breach of f
s 4(h) rights.
(ii) None of the applicants could reasonably be considered as
persons with respect to whom the provisions of s 4(b), (d) and (h)
have been or are likely to be contravened (see s 14(1) of the
1976 Constitution). g
In support of the first argument, the statements of Warner JA in

CBS Ltd v A-G (Civil Appeal No 16 of 2004) are relied on, where
(at p 12 (para 20)) the judge stated in reference to s 4(h):
h
‘It was, therefore, not open to the appellants to allege
discrimination on account of the personal characteristics of the
group of persons which he represented. Further it seems to me that a
right such as the right to freedom of religion, must attach to a
natural person.’ i
It was therefore argued that the first and third applicants cannot claim
any 4(h) breach as they are corporate entities and not natural persons.
In support of the second argument, it was submitted that given the
purpose of the award and the history of awardees, it was clear that the
TPC SDMS v A-G 417
a Trinity Cross was/is awarded to ‘unique’ and ‘distinguished’

people—in the language of the award itself: ‘distinguished
and outstanding.’ In the respondent’s contention, it cannot be reasonably
suggested that any of these applicants can realistically be considered able
to qualify for the Trinity Cross. As Mr Martineau SC put it, one needs to
b look at the ‘remoteness of the opportunity … the unlikelihood that these
Applicants will get it’.
I agree that to satisfy s 14(1) of the 1976 Constitution, these applicants
must show that one or more of the provisions of s 4(b), (d) or (h) has
been or is likely to be contravened in relation to him/it.
c However, I disagree that it is clear that this cannot be demonstrated
with respect to these applicants. The advertisement soliciting
nominations for all awards states: ‘Over 1.3 million People And Every
One Has The Chance To Be Honoured.’ That advertisement also states
that ‘Individual or organizations’ may submit nominations ‘of a citizen’ of
d Trinidad and Tobago for the award of the Trinity Cross. In 1987 ‘Pan
Trinbago’ (a Steelband Association) and in 1991 ‘The Regiment of Trinidad
and Tobago Defence Force’ and ‘The Trinidad and Tobago Police Service’ were
awarded the Trinity Cross. The Trinity Cross has also been awarded to
scientists, lawyers, cricketers, sailors, sports persons, doctors, beauty
e pageant winners, writers, carnival band leaders, artists and
community workers. Indeed, organisations were consulted in pursuance
of the creation of the Order of the Trinity and the establishment of
National Awards.
Given the purpose of the Trinity Cross, its availability to all citizens,
f the role that all citizens are invited to play in the process and the cross
section of awardees, this court cannot say with any reasonable degree of
certainty that these applicants do not or will not qualify to be nominated
for or awarded the Trinity Cross and hence to be disentitled to pursue
this action by reason of the s 14(1) limitation.
g In the present case, what is at stake is not only selection for
the honour, but also the entitlement to participate in the process, which
includes nominating citizens (natural and ‘corporate’ persons) and
being nominated. The evidence is that all of these applicants have been
approached to be nominated and have declined to be so nominated or to
h participate in the process of nomination because of the discrimination
alleged in this case.
In this court’s opinion, each one of these applicants is eligible for
consideration and entitled to engage the process, to be nominated
and/or to nominate; and in any of these situations I have no doubt on a
i balance of probabilities, given their history and involvement in the
society, that the a[plicants would be received and treated with regard and
respect by the National Awards Committee and the Prime Minister.
In so far as the first argument is concerned, in addition to the above
factors, the following are noteworthy.
First, the quoted statements of Warner JA are obiter dicta, as in the a

case under consideration the issue was one of unfair treatment and no
relief was granted as a consequence of any breach of religious beliefs or
observances. In my opinion, a religious organisation can subscribe to
specific religious dogmas, practices and observances and therefore
arguably may enjoy the protection of rights with respect to same. b
Second, the first and third applicants are not corporate citizens of a
primarily commercial character; but are corporate citizens with a
religious purpose, involved in the society on the basis of certain religious
principles. For example, in the case of the first applicant, it is responsible
for numerous Mandirs and schools throughout Trinidad and Tobago c
where Hindu religious beliefs and observances (lifestyles) are taught,
shared and practiced.
Third, in Smith v LJ Williams (1982) 32 WIR 395 the Court of
Appeal of Trinidad and Tobago determined that corporate citizens are
entitled to claim a breach of the s 4 rights in relation to them (see (1982) d
32 WIR 395 at 417 and 422–423). Smith v LJ Williams is in fact
authority for the general principle that non-natural persons (including
corporate entities) are entitled to the protection of such of the provisions
of ss 4 and 5 of the 1976 Constitution as by their nature they are capable of
enjoying—(1982) 32 WIR 395 at 423. e
In this court’s opinion it is quite clear that a ‘person’ who may apply to
the High Court for s 14(1) relief includes both a ‘natural person (and)
also non-natural persons’, such as the first and third applicants. The real
test, it would appear, is whether it can be shown in relation to the first
and third applicants that by their natures, they are capable of enjoying f
4(h) rights and are also entitled to protection for breaches of same. In my
opinion, the answers to both of these questions are in the affirmative.
For example, in relation to the first applicant the following
is noteworthy. By Ordinance No 15 of 1932 there was ‘established in the g
Colony (of Trinidad) an Association known as the Hindu Sanatan
Dharma Association of Trinidad … which is representative of the Hindus in
the Colony’. Subsequently, by Ordinance No 19 of 1932 the
incorporation of certain persons as trustees of the Sanatan Dharma
Board of Control was effected. Then, by Ordinance No 41 of 1952 the
h
above stated Association and Board of Control ‘resolved to amalgamate
the two bodies into one Association to be known as and called the
Sanatan Dharma Maha Sabha of Trinidad and Tobago’ (the first
applicant). Thus, the first applicant has since 1952 been the corporate
body considered by the State as ‘representative’ of Hindus in Trinidad
and Tobago. From the 2002 census data issued by the Central Statistical i
Office, of a population of 1,262,000 people, 22.5 per cent (or 283,950
persons) are Hindu. As already stated the first applicant the Sanatan
Dharma Maha Sabha (SDMS) has many schools and colleges and
temples spread throughout Trinidad and Tobago. These institutions are
TPC SDMS v A-G 419
a owned, managed and run by the SDMS and represent and meet the
religious, educational, cultural and lifestyle needs and interests of
Sanatanis Hindus in Trinidad and Tobago.
In my opinion, the above is clear evidence of the intent, purpose and
reach of the SDMS and therefore indicative of its ‘nature’.
b In my opinion, if the State were to, say, attempt to curb or inhibit
unconstitutionally the practices and observances legitimately conducted
at the SDMS institutions, the SDMS would in my opinion be entitled to
seek s 14(1) protection and relief. The fact of its ‘non natural’
personhood should not be a bar to locus standi or relief.
c In my opinion, one of the clear rights that the first applicant,
the SDMS, is capable of enjoying as a religious institution is the right to
nominate persons for and be nominated for the award of the
Trinity Cross. The advertisement soliciting nominations is addressed to
individuals and organisations. And, already in its history at least on three
d occasions non-natural persons have been awarded the Trinity Cross.
A similar process of analysis and application shows that the third
applicant, like the first applicant, is also entitled to seek s 14(1)
protection and relief in the circumstances of this case.
e THE EQUALITY PROVISIONS, SECTION 4(B) AND (D), 1976 CONSTITUTION

Section 4(b) and (d) of the 1976 Constitution states:
‘4. It is hereby recognised and declared that in Trinidad and

Tobago there have existed and shall continue to exist, without
f discrimination by reason of race, origin, colour, religion or sex, the
following fundamental human rights and freedoms, namely: …
(b) the right of the individual to equality before the law
and the protection of the law; …
(d) the right of the individual to equality of treatment from
g any public authority in the exercise of any functions.’
It is clear and accepted that these fundamental rights and freedoms

existed even before the creation of a written constitution or the
h conferring of constitutional status on them. It is also clear and accepted
that with respect to all of the enumerated rights and freedoms,
non-discrimination ‘by reason of race, origin, colour, religion or sex’ is prohibited
and deemed unconstitutional. Independently of (and together with) this
general prohibition, the 1976 Constitution guarantees the rights and
i
freedoms stated in the 4(b) and (d) equality provisions.
Thus, an individual is constitutionally guaranteed equality before the
law; the protection of the law; equality of treatment from any public
authority in the exercise of any functions; and also the enjoyment of
these without discrimination by reason of race, origin, colour, religion
or sex. Thus, because of the structural arrangement in s 4, the 4(b)
and (d) guarantees are not limited by the general non-discrimination a

prohibition, although it also applies to them (see Smith v LJ Williams
(1982) 32 WIR 395 at 427 and 435).
However, for any constitutional complaint on the basis of inequality
or discrimination to be justiciable it must fall within these
equality provisions. b
All persons are entitled to the enjoyment of these fundamental rights
(see para (a) of the preamble to the 1976 Constitution; s 11(1) of the
Interpretation Act; Powell v Kempton Park Racecourse Co Ltd [1899] AC
143 at 157, 185 and 192–193 and Matthew v The State [2004] UKPC 33,
c
(2004) 64 WIR 412 per Lord Walker).
In Trinidad and Tobago, the interpretation and application of these
equality provisions (4(b) and (d)) have been considered in the context of
two categories: (i) legislation and (ii) administrative action (acts of public
authorities/officials—in the administration of the law) (see Smith v LJ d
Williams (1982) 32 WIR 395 at 410—in relation to 4(b)).
The local courts have so far appeared to have interpreted and applied
both 4(b) and (d) rights without any insistence on separate intention
or purpose. Indeed, in Smith v LJ Williams, Kelsic JA interpreted
‘equal treatment’ in 4(d) in terms of the definition of ‘equal protection’ e
in 4(b)—((1982) 32 WIR 395 at 415). However, as Bernard J obviously
recognised in Smith v LJ Williams, 4(d) was concerned with ‘equality of
treatment’ by ‘public authorities’ ((1982) 32 WIR 395 at 411–414).
It would appear to me that what can be gleaned from the case law is
that s 4(d) is restricted to administrative actions by public authorities in the f
exercise of any functions, whether that power is exercised by an
authority or an individual (Smith v LJ Williams (1982) 32 WIR 395
at 411–412). However, the case law also suggests that common to both
4(b) and (d) is the understanding that ‘equality’—whether as ‘equal
protection’ or ‘equal treatment’ means ‘equal treatment in similar g
circumstances’, so that ‘there should be no discrimination between one person and
another if as regards the subject matter … their position is the same’ (Smith v LJ
Williams (1982) 32 WIR 395 at 415). Or, as Cross JA put it (in the
context of 4(d)): ‘It is the lack of even-handedness in … treatment …
against which the prohibition in section 1(d) of the Constitution [1962] h
is directed’ ((1982) 32 WIR 395 at 448).
It would also appear from the case law that the equality provisions in
s 4 are ‘among the most important of the fundamental guarantees’ (Smith
v LJ Williams (1982) 32 WIR 395 at 412).
In this context it is therefore important to reiterate, that rights such as i
the rights to individual liberty, freedom of speech, freedom of religion
and the equality rights, are original freedoms, which are essential
conditions for life in a free, fair and peaceful society.
TPC SDMS v A-G 421
a The historical move to written constitutions and to the statement of

fundamental rights and freedoms was not primarily a creative exercise,
but one of the codification of pre-existing principles, found necessary
for the creation of free and peaceful societies.
Post World War II and consequent upon the creation of the
b United Nations, in about 1966 the International Convention of Civil
and Human Rights (ICCHR) was agreed by member states of the
United Nations (as were the International Convention on Economic,
Social and Cultural Rights and the Convention on the Elimination of
All Forms of Racial Discrimination). These documents were created
c primarily in the service of peace and freedom in and among the states of
the world. Trinidad and Tobago is a signatory of the ICCHR. This is
significant, because it signals the commitment of Trinidad and Tobago to
the project of peace and freedom both within Trinidad and Tobago and
in its international relations.
d It is self evident that there can be no real and meaningful peace or
freedom without equality, fairness and non-discrimination. Thus,
these values are essential if a truly democratic way of life is to be
achieved and their protection critical.
For these reasons, one can safely state that at the heart of the equality
e
provisions in s 4, is the intention and purpose of eradicating unfairness
and discrimination and the creation of true freedom and peace in
Trinidad and Tobago. This intent and purpose is no doubt particularly so
given the context of the multi-ethnic and multi-religious society that
exists in Trinidad and Tobago; a society that existed for all practical
purposes as such from the time of its emergence as an independent
f
nation state.
Returning to the two categories in which the equality provisions
operate, that is legislation and administrative action, the law in Trinidad
and Tobago at present appears settled with respect to the former and
quite unsettled with respect to the latter, certainly in so far as the tests
g for proof of same are concerned.
A. Legislation
h In Smith v LJ Williams (1980) 32 WIR 395, Bernard J, citing with
approval Basu’s Shorter Constitution of India (7th edn, 1976) vol 1
(where art 14 of the Indian Constitution is dealt with and in particular
equality before the law and the equal protection of the law), accepted
that ‘equal protection’ may be denied either by legislation or by
i
administrative acts. And, that “when a law is challenged as discriminatory
the relevant consideration is the effect of the law and the intention of
the legislature’. (Basu at p 47). These requirements were in
contradistinction to the requirement for proof of ‘mala fides’ in the
administration of a particular enactment (Smith v LJ Williams
(1982) 32 WIR 395 at 411).
Bernard J was of the view that with respect to legislation, a

a presumption of constitutionality existed and the burden was on the
aggrieved party to show a breach of the fundamental rights provisions.
In the Court of Appeal Kelsick JA, in adopting the principles stated by
Laskin J in the Supreme Court of Canada’s decision in Curr v R (1972)
26 DLR (3d) 603 at 611 on the Canadian Bill of Rights, opined that b
with respect to s 4(b), in so far as legislation is concerned, ‘inequality of the
law is not confined to discrimination on the grounds prescribed in the
introductory clause’ but that legislation may ‘none the less
be offensive … if it is violative of what is specified in any of the
paragraphs’ (a) to (k) in s 4 ((1982) 32 WIR 395 at 427 and 425); c
and thereby seems to have also accepted the ‘effect’ aspect of the test
stated by Laskin J (with respect to s 223 of the Criminal Code Canada)
as is implicit from what is quoted below:
‘It is, therefore, not an answer to reliance by the appellant on d

section 1(a) and section 1(b) of the Canadian Bill of Rights that
section 223 does not discriminate against any person by reason of
race, national origin, colour, religion or sex. The absence of such
discrimination still leaves open the question whether section 223
can be construed and applied without abrogating, abridging or e
infringing the rights of the individual listed in section 1(a) and
section 1(b).’
It is important to note however, that in Smith v LJ Williams the judicial

statements with respect to legislation were all obiter dicta as the case f
involved inequality of treatment by reason of administrative action
(the application of a law and not the law itself). The ‘effect’ test has also
been endorsed, again as obiter dicta, by Hamel-Smith JA in CBS Ltd v
A-G (Civil Appeal No 16 of 2004) at para 21 of the judge’s opinion.
As we have already seen in Smith v LJ Williams (and will continue to g
see when we deal with equality rights in the context of
administrative action), the local courts have drawn heavily on the Indian
Jurisprudence on art 14 of the Indian Constitution. (At ‘14. Equality
before Law’—‘The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India’.) h
And, in particular on the statements of the Indian court in State of West
Bengal v Anwar Ali Sarkar [1952] SCR 284, (1952) 39 AIR 75;
and specifically those of Mukherjea J (see for example (1982)
32 WIR 395 at 407, 408–409; A-G v KC Confectionery Ltd
(1985) 34 WIR 387 at 400–402, 403 and 415). i
In the Anwar Ali Sankar case it was clearly established that in
determining whether an impugned law violated art 14, no proof of
mala fides or of purposeful or intentional discrimination in its enactment
was required (contrary to the case of administrative action). In that case
Mukherjea J stated ([1952] SCR 284 at 324):
TPC SDMS v A-G 423
a ‘If it is established that the person complaining has been

discriminated against as a result of legislation and denied equal
privileges with others occupying the same position, I do not think
that it is incumbent upon him … to assert and to prove that in
making the law, the legislature was actuated by a hostile or inimical
b intention against a particular person or class.’
And Fazal Ali J stated ([1952] SCR 284 at 311):
‘I suggest … that it will be extremely unsafe to lay down that

c unless there was evidence that discrimination was “purposeful
or intentional” (Art. 14) would not be infringed … It should be
noted that there is no reference to intention in Art. 14 and the
gravamen of that Article is equality of treatment. In my opinion,
it will be dangerous to introduce a subjective test when the Article
itself lays down a clear and objective test.’
d
HM Seervai (Constitutional Law of India (2nd edn)) supporting the
view of Basu (cited above) states the ‘correct test’ as being: ‘that the effect
of the impugned Act on the personal right conferred by Art. 14 must be
ascertained, and if the Act involved an infringement of such right,
e the object of the Act, however laudable, would not obviate the
prohibition contained in Article 14’ (at p 204).
Several opinions of the Human Rights Committee on art 26 of the
International Covenant on Civil and Political Rights (ICCPR) were
cited to this court.
f Article 26 of the ICCPR states:
‘All persons are equal before the law and are entitled without
any discrimination to the equal protection of the law. In this
respect, the law shall prohibit discrimination and guarantee to all
g persons equal and effective protection against discrimination on any
ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or
other status.’
h In SWM Broeks v Netherlands (No 172/1984, ICCPR), the following

statements were made in the opinion handed down on the scope and
application of art 26 of the ICCPR:
‘For the purpose of determining the scope of Article 26,

i
the Committee has taken into account the “ordinary meaning” of
each element of the article in its context and in the light of its
object and purpose (art. 31 of the Vienna Convention on the Law
of Treaties). The Committee begins by noting that article 26 does
not merely duplicate the guarantees already provided for in
article 2. It derives from the principle of equal protection of the
law without discrimination, as contained in Article 7 of the a

Universal Declaration of Human Rights, which prohibits
discrimination in law or in practice in any field regulated and
protected by public authorities. Article 26 is thus concerned with
the obligations imposed on States in regard to their legislation and
the application thereof. b
The right to equality before the law and to equal protection of
the law without any discrimination does not make all differences of
treatment discriminatory. A differentiation based on reasonable and
objective criteria does not amount to prohibited discrimination
within the meaning of Article 26.’ c
And, at para 16, the committee noted that although there was no
intention to discriminate, the effect of the impugned legislation was to create
a discrimination based on gender (sex).
In Karnel Singh Bhinder v Canada (No 208/1989, ICCPR), d
the impugned legislation was not found to be in breach of art 26 because
it was determined that its purpose (of having certain workers wear hard
hats for their protection—challenged by a Sikh) was reasonable, directed
to objective purposes and justified.
In Althammer v Austria (No 998/2001, ICCPR), the complaint was
that though certain amendments to regulations were objective on the e
face of it, they were discriminatory in effect:
‘The authors claim that that they are victims of discrimination
because the abolition of the household benefits affects them, as
retired persons, to a greater extent than it affects active employees. f
The Committee recalls that a violation of Article 26 can also result
from the discriminatory effect of a rule or measure that is neutral at face
value or without intent to discriminate. However, such indirect
discrimination can only be said to be based on the grounds
enumerated in Article 26 of the Covenant if the detrimental effects g
of a rule or decision exclusively or disproportionably affect persons
having a particular race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or
other status. Furthermore, rules or decisions with such an impact
do not amount to discrimination if they are based on objective and h
reasonable grounds.’ (Emphasis mine.)
In the Althammer case the committee concluded that the impugned
measure was based on objective and reasonable grounds and did not
amount to discrimination as prohibited by art 26 of the ICCPR. i
This consideration of the above stated opinions of the HRC is based
on two factors. First, the obvious commonalities in intention and
purpose between art 26 of the ICCPR and s 4(b) and (d) of the
1976 Constitution (when read together with the general
non-discrimination prohibition). Second, the desirability of interpreting
TPC SDMS v A-G 425
a local legislation, so far as is reasonably possible, in harmony with the

international treaty obligations of the State (see, Boyce v R
[2004] UKPC 32 at [26], [54], (2004) 64 WIR 37 at [26], [54],
[2005] 1 AC 400 per Lord Hoffmann).
In light of all of the above, and having considered the inclination of
b the local courts, the approach of the Indian courts and the opinions of
the HRC on art 26 of the ICCPR, I am of the following opinions with
respect to the interpretation and application of the general prohibition
against discrimination and s 4(b) of the Constitution, in so far as laws
are concerned.
c First, in deciding whether there has been a violation of the general
prohibition and/or s 4(b) both intention/purpose and effect must be considered.
In this regard, three possibilities exist which can result in a breach of the
guaranteed rights:
d (i) the intention/purpose of the law may be discriminatory, that

is, it is discriminatory ‘on its face’;
(ii) the effect of the law may be discriminatory though its
intention/purpose is laudable;
(iii) both the intention/purpose and the effect may
e be discriminatory.
It would appear that in both (i) and (iii) a fortiori, the law would be
deemed in violation of the equality/non-discrimination provisions.
However, regarding category (ii), though a law may in its effect be
f discriminatory, it may not be considered a breach of the constitutional
equality provisions so as to warrant relief under s 14 (see: Harrikissoon v
A-G (1979) 31 WIR 348, [1980] AC 265 per Lord Diplock).
Two obvious examples come to mind: (a) trivial and frivolous claims;
and (b) justifiable, objectively purposeful and reasonable provisions (as in
g the Karnel Singh Bhinder case).
Within the second category of reasonableness, objective
purposefulness and justifiability, several considerations would no
doubt apply. Indeed, each case would have to be evaluated on its own
particular circumstances. However, some considerations would likely be:
h is the effect of the differential treatment disproportionate or arbitrarily
exclusive; are there objective and reasonable grounds for the differential
treatment which are at least compatible with the values (principles and
beliefs) enumerated in the preamble to the Constitution and with a
democratic way of life; is there reasonable accommodation for those
i
who experience the effects of the differential treatment; and what is the
historical, cultural, sociological, economic and political context (reality)
in which the law is to function (for example, is there some general
disadvantage, such as historical alienation or religious marginalisation or
political powerlessness or social stigma or economic depravation
associated with those who will experience the differential treatment or
conversely general advantage in the stated categories)? Clearly, wherever a

reasonableness must be shown, fairness is an essential component.
Second, with respect to the general non-discrimination prohibition
(by reason of race, origin, colour, religion or sex), in my opinion these stated
factors create a special category of discrimination which, if present, affect the
approach of the courts in determining whether there has been a breach b
of the s 4 rights and freedoms.
As already pointed out, in Trinidad and Tobago, s 4(b) and (d) co-exist
together with the general non-discrimination prohibition in s 4.
The general prohibition applies to all of the 11 enumerated rights
and freedoms. An analysis of the five stated aspects of the general c
prohibition reveal that they consist of personal characteristics of the
individual and, but for religion, are matters which are immutable, in the
sense that they cannot be changed solely by the choice of the individual.
Clearly they go to the core identity of a person. Seen in this light it is
not surprising that religion is included, because anthropologists agree d
and it is the common experience that one’s religion is an aspect of
identity generally conferred at birth and that its values, assumptions and
beliefs become deeply embedded in an individual’s consciousness. Thus,
one may say that these five stated personal characteristics distinguish
people on the basis of inherent attributes rather than on e
behavioural traits. They describe more who and what a person is, rather
than how a person acts or what a person does. However, because of the
nature of religion, these observations apply equally to a community of
believers and impact also on behaviour.
This general prohibition against non-discrimination thus prohibits f
laws that differentiate between people on the basis of their inherent
personal characteristics and attributes. A court is entitled to consider
granting constitutional relief, where the claim is that a person has been
discriminated against by reason of a condition which is inherent and
integral to his/her identity and personhood. Such discrimination g
undermines the dignity of persons, severely fractures peace and
erodes freedom.
Courts will not readily allow laws to stand, which have the effect of
discriminating on the basis of the stated personal characteristics.
Justification, reasonableness and objective purposefulness would have to h
be clearly established and one would have to carefully consider issues of
proportionality and whether adequate accommodating measures were
present or available.
Third, legislative discrimination could be intentional or unintentional.
In terms of effect it could be direct or indirect. For example, if a benefit i
available to others similarly circumstanced is denied or unavailable to a
complainant by reference to a distinction stated or implied, or by
reference (explicit or implicit) to any of the stated personal
characteristics in the general prohibition, then barring satisfactory
justificatory factors, a breach of s 4 could be established.
TPC SDMS v A-G 427
a In my opinion, subject to justification and assuming similar

circumstances, it would generally be enough to show that the impugned
law results in disadvantageous treatment, whether direct or indirect,
especially where one of the personal characteristics in the general
prohibition is at stake.
b Fourth, there is inherent in the equality provisions an inescapable
comparative element. There is no such thing as absolute equality, in the
sense that the law must treat every person equally: penal provisions,
income tax and succession legislation demonstrate legitimate differential
treatment. However, what the concept of equality encompasses is the
c idea that persons who are alike (similarly situated/circumstanced) should
be treated alike; and that persons who are not alike could be treated
differently, though in some proportion to the differences. Thus a person
is treated unequally if that person is treated differently (and worse) than
others who (the comparison group) are similarly situated (circumstanced)
d to the complainant. In Bhagwandeen v A-G [2004] UKPC 21, (2004)
64 WIR 402, Lord Carswell stated (at [18]):
A claimant who alleges inequality of treatment or its synonym
discrimination must ordinarily establish that he has been or would be
treated differently from some other similarly circumstanced person or
e persons, described by Lord Hutton in Shamoon v Chief Constable of the
Royal Ulster Constabulary [2003] UKHL 11 at [71], [2003] 2 All ER 26
at [71] as actual or hypothetical comparators. The phrase which is
common to the anti-discrimination provisions in the legislation of the
United Kingdom is that the comparison must be such that the relevant
f circumstances in the one case are the same, or not materially different,
in the other.
Critical in this analysis therefore is the determination of who is
similarly situated/circumstanced to whom and what kinds of different
treatment are appropriate for those who are similarly situated/
g circumstanced.
Fifth, the burden of proof is on the complainant to show both likeness and
differential treatment (inequality). Once that is done, the burden shifts to the
State to show reasonableness, objective purposefulness, justification,
accommodation etc. In my opinion, this is so even though there is a
h presumption of constitutionality in favour of the impugned legislation.
Further, where the alleged discrimination is on the basis of one of the
stated personal characteristics in the general prohibition, then
discrimination is established upon proof of likeness and differential
treatment on one of the stated personal characteristics. Here, the level of
i scrutiny by the courts, of the state’s justification, is high. Discrimination
based on personal characteristics is a special category in s 4.
Sixth, ‘equality before the law’ and ‘the protection of the law’ (4(b))
encompass both the negative concept that ‘no person is above the law’ and the
positive concept that all persons have an inalienable right to enjoy their
constitutional rights and freedoms, unrestrained except by equal and a

impartial laws and provided the same are reasonably justifiable in a
democratic society (s 13(1) of the Constitution).
VG Ramachandran in his text Fundamental Rights and Constitutional
Remedies (discussing the scope of art 14 of the Indian Constitution—
at p 212) states the position as follows: b
‘No individual or groups of individuals should have differential or

preferential treatment over other individuals or groups of individuals
similarly circumstanced and with equal qualifications.’
c
Thus, a complainant must show that he/she has suffered some form of
differential treatment or disadvantage, by reason say of one of the
personal characteristics in the general non-discrimination prohibition.
This differential treatment or disadvantage may be direct or indirect.
For example, a law which results in preferential treatment of a group by d
reason of religion, in comparison to others similarly circumstanced, with
the effect that those others experience some disadvantage, could amount
to discrimination by reason of religion and a breach of the protection of
the law aspect of the 4(b) equality provision (which is accentuated given
the constitutional right to enjoy freedom of religious belief and e
observance—s 4(h)).
In determining the protection of the law aspect of s 4(b) regard must
also be had to, inter alia, the constitutionally guaranteed rights
and freedoms.
Seventh, in determining effect—differential treatment and disadvantage, a f
difficult question arises as to whether the test is objective or subjective.
In my opinion, especially when dealing with the personal characteristics
in the general prohibition, it is unrealistic to have an entirely
objective test. I would therefore frame the test as ‘subjective objectivity,’
in order to capture the idea that it is not either one or the other but a g
synthesis of both, to be applied appropriately in the circumstances of
each case, having regard in particular to the ground of the alleged
discrimination or inequality.
An example will illustrate the dilemma and the recommendation:
‘conscience and religious belief.’ Conscience and religious belief are h
clearly highly subjective matters—both of which are considered critical
to the democratic way of life which the 1976 Constitution affirms,
sustains and protects. Yet an objective element is necessary, for a court
must be under a duty to inquire whether the alleged beliefs are
reasonable and rational (from the individual’s point of view) and i
sincerely subscribed to (that is honestly believed in and not fictitious
or capricious).
Eight, the time at which the court must make its interpretation and
assessment is the present time. That is, the court must look at the
circumstances as they exist at the present time and determine whether
TPC SDMS v A-G 429
a there is a breach of the Constitution or not (see Boyce v R

(2004) 64 WIR 37 at [54]–[59]: ‘Constitution as a living instrument’).
Ninth, as indicated first and fifth above, regard must be had
specifically to the intention/purpose of the law and an evaluation made
as to the justifications for and the reasonableness and legitimate aims of
b the provisions.
B. Administrative action
In Trinidad and Tobago, the law as to what is required to prove
inequality of treatment or discrimination in the application of laws by
c administrative action is in a state of uncertainty. In the Court of Appeal
there is no clear agreement as to what is required. In Bhagwandeen v A-G
(2004) 64 WIR 402 the Privy Council having noted the decisions of the
Court of Appeal in Smith v LJ Williams (1982) 32 WIR 395 and in A-G
v KC Confectionery Ltd (1985) 34 WIR 387 and the stated necessity for a
d
claimant to establish mala fides or a clear and intentional discrimination
on the part of a public official or authority, observed that:
(i) ‘Deyalsingh J reasoned cogently’ in the judgment at first
instance that was overturned in the Court of Appeal in the
KC Confectionary case.
e (ii) The Privy Council was ‘inclined to the view that there may
have been a degree of confusion between two distinct concepts,
the presumption of regularity and the necessity for proof of
deliberate intention to discriminate in a claim of inequality
of treatment’.
f (iii) In discrimination cases in the UK the ‘preferred’ test was
‘the causative to the subjective construction … that discrimination
could be established even though the respondent had not intended
to discriminate’ (at [20]–[23] of Lord Carswell’s judgment).
g Further, in my opinion, the Board invited the local courts to

reconsider these issues.
That opportunity for reconsideration arose in CBS Ltd v A-G
(Civil Appeal No 16 of 2004), in which Hamel-Smith JA, Warner JA
and Mendonca JA all gave written decisions. Except for outcome there
h was no obvious agreement on which of the causative or subjective
approaches should be adopted.
Mendonca JA clearly was of the opinion that the test should remain
the subjective one, with a claimant having to prove mala fides, or ‘at least
an element of deliberateness’, or proof of an intentional and purposeful
i
or irresponsible act (paras 28, 31 and 34).
In particular, Mendonca JA also stated: ‘It is not the law that once
inequality of treatment is found that the onus shifts on the State to
provide some explanation for it’ (at para 34), and that ‘the onus could
not be shifted where the presumption is subsumed on mere evidence
of inequality. What has to be established is an intentional and purposeful
act of unequal treatment which in turn connotes mala fides’ (at para 36). a
And further, despite the invitation of the Privy Council in the
Bhagwandeen case, the judge stated: ‘I do not think it appropriate to
express any view on whether the law as it now stands needs to be altered
and in what way’ (at para 38).
Warner JA was, in my opinion, prepared to go further than b
Mendonca JA and to:
(i) acknowledge the invitation of the Privy Council (para 23);

(ii) accept that ‘the dicta in KC Confectionary may be revisited
legitimately’ (para 28); and c
(iii) find a breach of the equality provisions (para 35) even
though mala fides had not been established (paras 19 and 35) and
where there could be no case that the claimants had been
‘deliberately selected for unfair treatment’.
d
Warner JA then proceeded, under the heading ‘The case for equality’,
to state her opinion as follows:
‘The entire foundation of the appellants’ case has not however,

in my view, been destroyed. The relevant authority had established e
a procedure in accordance with powers vested in it under
the Ordinance. While I would not presume to hold that the
Minister is not empowered to request that an application is
expedited, the relevant authority had dealt with the comparator
(Citadel) an entity similar circumstanced, with expedition, but had f
not applied the same standard to the appellants’ application. It is no
excuse that the application ‘may have been lost,’ or that there was a
shift in the Ministry’s location.
This type of situation, it appears to me, has always come within
the sweep of Section 4(d), as Persaud J.A. has demonstrated. g
Accordingly, there will be no departure from the rule of stare
decisis when I find a breach of the equality provision on this limb.’
It would therefore appear that in circumstances of proof only of

differential treatment, with no mala fides or any element of h
deliberateness and with an unsatisfactory justification by the state,
Warner JA found a breach of the 4(d) equality provision. If this is a
correct analysis of the judge’s reasoning, then Warner JA, without being
explicit, applied a causative test to a claim of inequality of treatment
based on administrative action. i
However, Hamel-Smith JA was explicit in his openness to (if not
acceptance of) the causative test. He accepted that proof of mala fides
was not always necessary and acknowledged that discrimination could be
established without an intention to discriminate (para 19). In the words
of the judge (at para 21):
TPC SDMS v A-G 431
a ‘It is only reasonable to conclude that his action was the

deliberate and intentional exercise of a power (or discretion for that
matter), the exercise of which was arbitrary and unreasonable in the
circumstances of this appeal. Hence, it was contrary to law and
resulted in unequal treatment. Whether such action connotes
b mala fides is another issue.’
And, in specific reference to the reasoning of Mendonca JA,
Hamel-Smith JA had this to say (at paras 23–29):
‘Mendonca J.A. was of the view that the facts in the instant
c
appeal did not fall within the category where mala fides need not
be alleged. He found however, given the scarce resource available
to applicants, that the deliberate selection of Citadel by the
Minister for a grant of a licence above all other applicants,
including the appellants who were all similarly circumstanced,
d while there was in place (i) a suspension of recommending licences
and (ii) a clear stated policy of considering applications in order of
submission, was an arbitrary and/or unreasonable exercise of his
power resulting in unequal treatment. That action was sufficient to
displace the presumption and it required an explanation from
e the Minister. I agree with Mendonca J.A. but while his decision
maintains the need to displace the presumption with proof of
mala fides I am inclined to accept that there was no such onus on
the appellants.
Their Lordships in Bhagwandeen suggested that there may have
f been some confusion between the two concepts viz., the
presumption of regularity and the necessity for proof of deliberate
intention to discriminate. The observation is well placed because
inherent in the presumption is the absence of evidence, one way or
the other. Once cogent evidence of discrimination is placed before
g the Court, whether or not the presumption operates in the official’s
favour, the onus shifts to the official to show that his action was
justified or reasonable. The presumption in those circumstances
would have been of little or no use to the official.
The requirement that an applicant prove mala fides as a
h prerequisite may be to place a fetter on the right itself.
Discrimination can be practised, and usually is, by stealth.
That feature makes it difficult to discern particularly when the
applicant is on the outside depending, so to speak, on the good
faith and integrity of the decider on the inside. I agree with
i
Persaud J.A. that if there is an allegation of mala fides then the
applicant must prove it in order to succeed. But there will be cases
where it is not alleged and need not be proved. In either instance
the presumption is of little use and to insist that it be displaced with
proof of mala fides may be lifting the bar to an extraordinary and
unnecessary height.
It may be that a different approach should be adopted. The right a

to equal treatment in the Mauritius Constitution is different from
section 4(d) in that the protection there is entrenched on specific
grounds but the test to determine whether there has been an
infringement of the right is an attractive and compelling one.
In [Jaulin v DPP [1976] MR 96], the Supreme Court ruled that: b
“There is inherent in the term discriminate and its
derivatives as used in the Constitution a notion of bias and
hardship which is not present in every differentiation and
classification … The difference of treatment will be justified
when it pursues a legitimate aim and there exists at the same c
time a reasonable relationship of proportionality between the
means employed and the aim sought to be realised.
This test was adopted by the Privy Council in [Bishop of Roman
Catholic Diocese of Port Louis v Tengur [2004] UKPC 9, (2004)
d
16 BHRC 21] and formulated in this way:
“Where apparently discriminatory treatment is shown, it is
for the alleged discriminator to justify it as having a legitimate
aim and as having a reasonable relationship of proportionality
between the means employed and the aim sought to e
be realised.”
The test does not require proof of mala fides and ensures that a
prima facie violation of the right is not lightly sanctioned. It places
the onus on the official to justify the breach and eliminates any
spurious or impractical aims. It may be that he would have to show f
some pressing need, social or otherwise, to justify the breach but
one would think that the more substantial the interference the
greater the justification will have to be before the court is satisfied
that the decision is reasonable.’
g
I prefer and endorse the approach and reasoning of Hamel-Smith JA.

Clearly this approach to administrative action is consistent with the
approach I have outlined above with respect to legislation. It is an
approach that acknowledges effects, maintains a presumption of h
regularity and affords an opportunity to justify seemingly discriminatory
action. It is difficult to flaw such a fair and even-handed approach to the
analysis of equality claims. This is especially so given the
disproportionality of resources and access to information between the
ordinary claimant and the state. i
In this court’s opinion, given the requirement that the
1976 Constitution be interpreted as a living instrument and given the
review by the Court of Appeal after the Bhagwandeen case of the
requirements for proof of discrimination by administrative action, the
‘majority’ view of Warner JA and Hamel-Smith JA is to be considered
TPC SDMS v A-G 433
a most persuasive (and binding) on the lower courts in Trinidad

and Tobago. No doubt the Privy Council will soon settle this vexing
issue once and for all.
Equality as fairness
b John Rawls (A Theory of Justice (1999 edn)) is famous for his theory of
justice as fairness. A theory which is premised on two principles:
(i) Each person should have an equal right to the most extensive
basic liberties as can be guaranteed and as are compatible with
c similar liberties for all others.
(ii) Inequalities in society are acceptable provided they are
arranged so that the inequalities operate to the advantage of all
(especially the less fortunate) and are attached to positions and
offices that all have an equal opportunity to attain.
d
Without getting into the merits of Rawls’s contention, it is my
opinion that quintessentially equality is to be understood, interpreted
and applied as fairness.
Aristotle is credited with the formulation: ‘equality consists of treating
e equals equally and unequals unequally.’ It is the principle of fairness that
demands that equals should be treated alike. It is consequently unfair to
treat equals differently, unless some objectively justifiable reasons exist for
so doing, in which event there is no unfairness. Thus, discrimination and
inequality only have real meaning in the context of fairness.
f In terms of the general prohibition against discrimination in s 4,
in my opinion, the 1976 Constitution intended to legislate that it is
fundamentally unfair to effect different treatment on the basis of race,
origin, colour, religion or sex. This is because these aspects of
personhood and citizenship are fundamental to one’s inherent dignity,
g worth and identity and to the free and peaceful co-existence of mutually
respected citizens in a civil society—who expect to be treated fairly.
Discrimination may therefore be described as a distinction, whether
intentional or not, but based on grounds relating to personal
characteristics, which has the effect of unfairly imposing burdens,
h obligations, or disadvantages not imposed on others in a comparable
position, or which unfairly withholds or limits access to opportunities,
benefits or advantages available to others in a comparable position in
the society.
Thus, the focus is not only on the alleged ground of discrimination
i
(to ascertain whether or not it is an enumerated ground), but also on the
alleged effects of the challenged distinction. Further, since it is accepted
that not all distinctions and differentiations are necessarily discriminatory
and unfair, a determination must be made as to whether there is
inequality or discrimination that is justiciable under the
1976 Constitution.
In regard to alleged discrimination based on personal characteristics, a

in my opinion, one must look not only at the challenged law and the
alleged effect, but very importantly also at the larger historical, cultural,
sociological, political and legal context. An examination of this larger
context assists a court in determining whether differential treatment
results in inequality, discrimination or unfairness. Indeed, a finding of b
discrimination will be unlikely unless there is also some significant and
unjustifiable disadvantage and unfairness.
In my opinion, it is clear and unquestionable that a law may be
discriminatory even if it is not directly or expressly so. That is, a law may
be discriminatory by reason of its adverse effects: c
‘adverse effects discrimination.’
Whereas direct discrimination involves a law which plainly,
on its face, discriminates on the basis of one or more of the prohibited
grounds in the general non-discrimination prohibition in s 4 of the
1976 Constitution, adverse effects discrimination occurs when a law, d
though on its face appears neutral, has a disproportionate and unjustified
negative impact on a person or group because of the personal
characteristics of that person or group (for example, because of their
race, origin, colour, religion or sex). What is therefore required to
establish adverse effects discrimination, is that the alleged differentiation e
or distinction has the effect of unfairly imposing some burden, obligation
or disadvantage which is not imposed on others in a comparable
position, or of unfairly withholding, limiting, inhibiting or restricting
access to opportunities, benefits or advantages which are available to
others in a comparable position.
That is, adverse effects discrimination occurs where it has been f
demonstrated that without any objective and reasonable justification or
accommodation, there is a failure to ensure that there is equal benefit for
all and/or a failure to take steps to remove unequal disadvantages for
some—amongst those who are all equals. This is so because such
circumstances are fundamentally unfair. g
RELIGIOUS BELIEF AND OBSERVANCE, SECTION 4(H), 1976 CONSTITUTION

Section 4(h) of the 1976 Constitution states:
‘4. It is hereby recognised and declared that in Trinidad and h

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: …
(h) freedom of conscience and religious belief and
observance; … i
The applicants have argued for a breach of their s 4(h) rights on two
bases. First, that Trinidad and Tobago is a secular State and like the
United States of America, any entanglement by the State in matters of
TPC SDMS v A-G 435
a religion is unconstitutional. Second, that the Constitution recognises a

need for religious equality and provides for the equal treatment and
respect for all religions, which is a reading of the 1976 Constitution that
conforms with its preamble.
On the first submission, this court is of the opinion that the
b 1976 Constitution is materially different from its USA equivalent.
In Trinidad and Tobago, there is no establishment
clause (or its equivalent) as appears in the First Amendment to the
United States Constitution (or any incorporating provision as contained
in the Fourteenth Amendment to the US Constitution). Thus,
c neither the Lemon Test (Lemon v Kurtzman 403 US 602 at 612–13)
nor its modification as the Endorsement Test (see American Civil Liberties
Union of Kentucky v Kentucky 354 F 3d 438 at 446) have any direct
relevance to the jurisprudence of Trinidad and Tobago.
In the USA, State practice does not violate the First and Fourteenth
d Amendments to the US Constitution if:
(i) it has a secular purpose;

(ii) its primary or principal effect neither advances nor
inhibits religion; and
e (iii) it does not foster excessive entanglement with religion
(the Lemon criteria for analysis).
Under the ‘Endorsement Test’, the ‘entanglement’ prong is dispensed

with and the court combining an objective version of the ‘purpose’
f prong with the ‘effect’ prong asks whether a reasonable observer would
believe that a particular State action constitutes an endorsement
(or disapproval) of religion by the government—see Modrorich v
Pennsylvania (2004) 385 F 3d 397. In determining whether State action
impermissibly endorses religion, the forensic exercise for the court is to
g determine whether an objective observer, acquainted with the impugned
subject, its history and implementation, would view it as State
endorsement of religion (the American Civil Liberties case at 446
and 458). Thus, content, context and history are relevant in assessing
purpose/intention and effect/endorsement.
h The considerable time spent by attorneys on the American position
has not all been wasted. From the American jurisprudence, it is clear that
their way of dealing with their country’s history and religious diversity,
was to legislate constitutionally so as to provide that ‘government may
not promote or affiliate itself with any religious doctrine or organization,
i
may not discriminate among persons on the basis of their religious
beliefs and practices, may not delegate a governmental power to a
religious institution and may not involve itself too deeply in such an
institution’s affairs’ (Glassroth v Moore, Chief Justice of Alabama
335 F 3d 1282 at 1293). This position was achieved through specific
amendments to the US Constitution. Apart from s 4(h) and the general
non-discrimination prohibition (which includes religion), no such a

provisions exist in the 1976 Constitution. None should be read in
or assumed. Noteworthy however, is the American forensic approach to
discovering whether or not there has been association with religion.
Here purpose and effect are both considered in the light of content,
context and history. In this regard the approach is similar to that taken in b
the common law jurisdictions to interpreting and applying the
equality provisions.
In Trinidad and Tobago, whether or not it is a secular state, there is no
constitutional prohibition on State promotion, affiliation or association
with religion. Indeed, the very first provision of the preamble of c
the Constitution states:
‘Whereas the People of Trinidad and Tobago have affirmed that

the Nation of Trinidad and Tobago is founded upon principles that
acknowledge the supremacy of God, faith in fundamental human d
rights and freedoms …’ (Emphasis mine.)
Though not a theocratic state, Trinidad and Tobago constitutionally

affirms the nation’s acknowledgement of the supremacy of God,
clearly over and above even the Constitution itself. e
However, in my opinion, the way the 1976 Constitution regulates
State involvement and association in religion is through the general
prohibition of non-discrimination based on religion and by the
guarantee of freedom of conscience and religious belief and
observance (4(h)). These two provisions introduce the idea of equality f
and fairness into the state’s involvement and association with religion.
When one considers also the general equality sections (4(b) and (d)),
then it becomes clear that any State involvement or association with
religion must be impartial, fair, non-preferential and based on principles
of equality. Such a reading of the 1976 Constitution treats it as a whole g
living document and honours the ideals in the preamble for respect for
‘the dignity of the human person and the equal and inalienable rights
which all members of the human family’ are entitled to.
Constitutionally, the idea of the supremacy of God, is not the
supremacy of any one person’s or group’s God over and above another’s, h
but the equal supremacy of all persons’ understandings of God.
In Trinidad and Tobago the only local case which was cited that had
any real relevance to the substantive meaning and interpretation to be
given to s 4(h) was Belafonte v A-G (Civil Appeal No 24 of 2004).
In the Court of Appeal the court stated that the trial judge came to i
certain findings of fact (para 6). Though this was not itself clear from the
judge’s reasons, the Court of Appeal nevertheless determined that:
‘In view of the undisputed breach of the appellant’s constitutional
rights … the case should be remitted to the judge below to
enter judgment … in the following terms: […] (ii) A declaration that the
TPC SDMS v A-G 437
a Appellant’s right to freedom of conscience and religious belief and

observance was infringed’ (para 26). Unfortunately, neither the trial
judge nor the Court of Appeal gave any guidance as to how and when
the rights at 4(h) arose and were violated; and in particular as to what
constituted constitutionally guaranteed ‘conscience’, ‘religious belief ’ and
b ‘religious observance’.
In the Belafonte case it appears that the evidence was simply that
Belafonte ‘had his Rastafarian “dreadlocks” shorn off against his will and
was subjected to a meat diet’ and was ‘deprived of his vegetarian diet’
(paras 5, 6(iv), 21).
c In my opinion s 4(h) can be interpreted as follows. First, it guarantees
‘freedom’ to be and to act in accordance with conscience and religion.
Freedom is based on dignity and equal and inalienable rights (para 1 of
the preamble). Freedom is present where there is an absence of
compulsion or restraint. And both coercion and constraint can be
d effected by direct and indirect means. Freedom in its negative sense is
the absence of coercion and constraint and in its positive sense, is the
right to hold and manifest beliefs and practices.
Thus, the essence of the concept of freedom of religion is the
inalienable right to hold such religious beliefs as an individual chooses,
e and to embody and declare them openly and freely. Freedom of religious
observance is equally the inalienable right to manifest, express and
participate in such rituals, practices and activities which are a part of and
consistent with avowed religious beliefs.
No constitutional freedom is absolute and even the freedom of
f religious belief and observance is subject to such limitations as are
legitimate and necessary to protect the democratic way of life and having
regard to the fundamental rights and freedoms of all citizens and their
equal and inalienable right to enjoy same. Included among legitimate
limitations could be such limitations as are necessary to protect the
g
security of the state, public safety, order and well-being (health).
Such an interpretation is not inconsistent with Trinidad and Tobago’s
international obligations (see art 18 of the ICCPR). However, I do not
agree with the applicants that the above limitations are exhaustive of
those that are constitutionally permissible.
h Because the freedom of religious belief and observance is
characteristically individualistic, the ‘subjective objectivity’ test mooted
above is in this court’s opinion the forensic exercise to be undertaken in
order to determine whether the belief or observance is legitimately and
constitutionally ‘religious’.
i
Thus, in ascertaining whether a claimed belief or observance is
‘religious’, the court is obliged to inquire into the doctrine or practice
and to determine whether the individual demonstrates sincerity in the
belief or in the practice (ie simply whether the belief or practice is
subscribed to honestly or whether it is contrived or fictitious). Further,
both the belief and practice to qualify as ‘religious’ should be consistent
with a person’s perceptions of self, humankind, nature and a

(where relevant) with a higher, greater or different order of being
(one’s cosmology). And, in assessing the above, this exercise is to be done
irrespective of whether a particular belief or practice conforms with
and/or is prescribed by ‘official’ religious dogma or tradition or the
opinions of religious officials. b
In my opinion, such an understanding of the s 4(h) guarantee is
consistent with a personal and subjective understanding of the stated
freedom and its linkage to ‘conscience’.
Clearly, apart from trivial or insubstantial or frivolous claims (which
suggests that the impediment to the freedom must be integral or essential c
or fundamental), the 1976 Constitution protects the actual or reasonably
anticipated (s 14) infringement of the religious beliefs and observances of
individuals and groups who can qualify for protection, whether such an
infringement is direct, indirect, intentional, unintentional, foreseeable or
unforeseeable (by the alleged offender). d
One can therefore suggest a 3-step process with respect to
this freedom:
(i) has the claimant demonstrated an honest (sincere) conviction e

in the practice or belief that has a legitimate nexus with religion;
(ii) if so, is the alleged abridgement trivial, insubstantial
or frivolous;
(iii) if not, is there some legitimate, objectively purposeful and
reasonable justification for the abridgement of the freedom. f
This third step is introduced, because similar to the equality

provisions, there can be no absolute freedom of religious belief and
observance and an assessment of the intention and purpose of the g
challenged law or action ought to be considered before declaring it
unconstitutional.
Further, once purpose has been evaluated as unconstitutional, a
neutral effect cannot save the breach. However, even if purpose is valid,
effect may constitute a breach of the freedom. h
Finally, as stated above, there is clearly some overlap and
interconnection between the general prohibition against non-
discrimination based on religion in s 4 and the 4(h) guarantee and also
the 4(b) and (d) equality provisions. In Trinidad and Tobago not only is
there guaranteed freedom of religious belief and observance, but there is i
a prohibition of discrimination based on religion and also the
entitlement to equality (in both its positive and negative senses) and
equal treatment from the law and from administrative actions. A single
case may involve an inequality case, as well as a breach of the freedom of
religion case, as well as a discrimination on the basis of religion case.
TPC SDMS v A-G 439
a SYNTHESIS/APPLICATION
On the evidence, it is clear that the State has had knowledge (direct
and indirect), as well as advice, that the Trinity Cross is a controversial
national award and that that controversy arises from its
Christian associations.
b As I have already stated, in my opinion, considering the design,
motifs, symbols and words which together constitute the Trinity Cross,
when reasonably and objectively interpreted according to content,
context and history, as is relevant to Trinidad and Tobago, it is quite clear
that the words ‘Trinity’ and ‘Cross’ can at present be associated with the
c Blessed Trinity and the cross of the Christian religion and that the
linking of those words reinforces that association.
Further, I accept without reservation that given the historical,
sociological and religious experience of Hindus and Muslims in Trinidad
and Tobago (beginning with the colonial indentured experience) and
d given the religious beliefs and observances of Hindus and Muslims, it is
reasonable, rational and legitimate for both to perceive the Trinity Cross
as having unequivocal Christian associations and for both to have an
aversion to the Trinity Cross. And as such, it is objectively reasonable,
rational and legitimate for Hindus and Muslims in Trinidad and Tobago
e not to participate in the process of nominating persons or being
nominated for or consenting to accept or receive or wear the
Trinity Cross.
All of these applicants have demonstrated a legitimate interest in this
constitutional issue. They have all meet the s 14(1) threshold requirement
f of having been, or are being or are likely to be affected by the alleged
contraventions of s 4 in relation to them.
All of the applicants satisfy the preliminary comparative condition of
being similarly circumstanced in relation to their challenge and the
subject award (with respect to their equality and non-discriminative
g claims). They are all members of the class of citizens of Trinidad and
Tobago who can nominate citizens for, be nominated for, consent to and
accept and wear the Trinity Cross and join the Order of the Trinity.
All of the applicants have established, at least prima facie, that, though
the purpose of the Trinity Cross is religiously neutral in that it is an
h honour and award for distinguished and outstanding service to Trinidad
and Tobago, its effects are indirectly discriminatory, in that it represents
and constitutes preferential treatment, approval and acceptance of overt,
exclusive and historically marginalising Christian symbolism and
associations, in a multi-religious, multi-cultural State with significant
proportions of Hindus and Muslims, which has been the case since at
i
least Independence.
To this extent the effects of the Trinity Cross, as the highest single
award in Trinidad and Tobago for distinguished and outstanding service,
are to impose a disadvantage upon a significant proportion of the
population and upon sincere Hindus and Muslims, which are not equally
imposed upon an equally significant proportion of the population a

(Christians), who have historically also enjoyed in relation to Hindus and
Muslims general preferential treatment in Trinidad and Tobago. The
existence of the Trinity Cross award also has the continuing effects of
denying, limiting, restricting or inhibiting participation by sincere
Hindus and Muslims in the processes linked to the award of the Trinity b
Cross and access to the advantages, benefits and opportunities available
to other equally comparable members of the society who can participate
in the processes linked to and the advantages, benefits and opportunities
derived from the nomination for and receipt of the award of the Trinity
Cross and membership to the Order of the Trinity. c
In my opinion, this is a case of indirect adverse effects discrimination.
The differentiating and distinctive condition in the Trinity Cross is its
overt Christian associations which identifies it with a religious subset of
the society (Christians) and so differentiates and distinguishes it
comparatively with Hindu and Muslim religious symbols, associations d
and beliefs. The Trinity Cross thus imposes, because of the special
characteristics of Hindus and Muslims, restrictive and inhibiting
conditions which are not equally imposed on, at least, the Christian
members of the society. (This indirect adverse effects discrimination can
also quite obviously impact negatively on all non-Christians and e
on atheists.)
The applicants have also shown an honest conviction in their religious
beliefs, observances and experiences, which are fundamental, essential
and integral to their religions.
The evidential onus therefore shifts upon the respondent to show f
whether some reasonable steps have been taken to accommodate Hindus
or Muslims or to show some legitimate, objectively purposeful and
reasonable justification that could offset the discriminatory effects of
the award.
Is there any legitimate aim and sufficiently objective and reasonable g
basis for the naming and design of the Trinity Cross as the nation’s
highest award?
This question is to be distinguished from the inquiry whether there is
a legitimate aim and an objective and reasonable basis for creating the
award per se: that is, for honouring distinguished and outstanding service h
to Trinidad and Tobago. Such an aim, purpose and intention is
unquestionably legitimate and reasonable.
Ostensibly the justification for the name and design of the Trinity
Cross as such is that it is: ‘Based on the Trinity Hills.’ This is the only
official explanation given for the choices of design, motifs and words i
used in the award. As we have seen the ‘Trinity Hills’ have a special
signification and symbolism in the history of Trinidad and Tobago.
The ‘Trinity Hills’ do not simply describe a geological formation, but
predominantly identify and are associated with Columbus’s first sighting
of Trinidad in 1498; when upon seeing ‘a range of three mountains …
TPC SDMS v A-G 441
a recited the Salve Regina and gave thanks to the Lord’ and remembering
his vow to name the first land he saw after the ‘Blessed Trinity’ of the
Roman Catholic faith cried out ‘La Trinidad’.
Though the decision to name and design the Trinity Cross based on
the Trinity Hills may be considered by some an objective and reasonable
b basis for doing so, in my opinion, in the context of:
(i) the overall religious, cultural and sociological history of

Trinidad and Tobago;
(ii) the experiences of the Indian indentured Hindus and
c Muslims and their successors;
(iii) the proportions of Hindus and Muslims to the
total population;
(iv) the above stated legitimate attitude of Hindus and Muslims
to the Christian symbolism and associations inherent in the
d Trinity Cross; and
(v) the fact that the award was only introduced
after Independence,
the above stated basis is an inadequate justification. That this basis is an

e insufficient justification in the circumstances of this case is reinforced by
the general and overriding constitutional prohibition against
discrimination on the basis of religion.
It is relevant to note that the more substantial the interference with a
protected fundamental right the greater must be the justification for any
f limitation or inhibition. Furthermore, there must also be proportionality
between the means employed (the Trinity Cross) and the aim sought to
be realised (to give effect to the intention to honour citizens for
distinguished and outstanding service).
In my opinion, given the indirect adverse effects discrimination
g caused by the design, motifs and words of the Trinity Cross and the
likely extent of those effects, combined with the high degree of
protection afforded to non-discrimination on the basis of religion,
there is a disproportionate adverse effect caused by the Trinity Cross that
negates any justification which is based on the Trinity Hills.
h In my opinion, in an assessment such as is demanded in a case like this,
a court is required to take a practical, realistic and pragmatic approach.
Further, no evidence of accommodation has been brought to the
attention of this court. The respondent’s position is primarily that as a
question of fact the Trinity Cross is not and cannot be viewed as overtly
i
Christian in content, context or history and has no exclusive
unequivocal Christian motifs or associations. This justification is
maintained in the face of the history of the controversy outlined above
and in light of the Cabinet-appointed de la Bastide Committee
(and Spinks) Report and Recommendations on the National Awards and
the Trinity Cross.
The second aspect of ‘justification’, which is really more a matter of a

law than of fact, is that the Trinity Cross does not constitute an award
that is indirectly discriminatory or in breach of any 4(b), (d) or (h) rights
and freedoms. This has been dealt with above.
The final ‘justification’ is that the Trinity Cross is by reason of s 6(1) of
the 1976 Constitution, the savings clause, an existing law which is b
protected from being invalidated on the basis of any violations of ss 4
and 5 of the 1976 Constitution.
In my opinion, leaving aside the savings clause argument for the
moment, the respondent has shown no accommodation whatsoever to
c
ameliorate the indirect adverse discriminating effects of the award of the
Trinity Cross on the applicants as Hindus and Muslims and as corporate
citizens representing Hindus and Muslims in Trinidad and Tobago. And,
the respondent has also not shown any legitimate, objectively purposeful
or reasonable (or proportionate) justification for the indirect adverse
discriminatory effects of the award of the Trinity Cross on the applicants. d
In my opinion, the applicants would be entitled to a finding by this

court that their constitutionally guaranteed rights to non-discrimination
on the basis of religion and to equality and equal treatment by law and
by administrative action have been breached and continue to be e
breached by the creation and continuation of the award of the
Trinity Cross.
As regards the s 4(h) freedom of religious belief and observance, I am
not of the opinion that any isolated breach of that freedom has occurred
in this case even though the effect of the Trinity Cross may be seen as an f
indirect curtailment of the enjoyment of that freedom. In my opinion,
the clearer infringement is through the conjoint effect of s 4(h) and 4(b)
and (d)—the equality provisions; and it is here that I would prefer to
locate any breach of the s 4 rights and freedoms of the applicants in
this case. g
As the nation’s highest national award the Trinity Cross has been in
existence since 1969—that is, for some 36 years. That is a relatively short
period of time. Its creation came at a time after Independence when
Trinidad and Tobago was already an established multi-religious society
with a written Constitution in place (the 1962 Constitution) h
guaranteeing the same fundamental rights and freedoms that are under
consideration in this case.
Were it not for the arguments that will be dealt with shortly under the
savings of existing law submission of the respondent, this court would
have given serious consideration to the s 14(2) constitutional mandate to i
grant relief as is appropriate to enforce, secure and protect the rights and
freedoms of the applicants that have been abridged by the creation and
continued existence of the award of the Trinity Cross.
TPC SDMS v A-G 443
a EXISTING LAW, SECTION 6(1), 1976 CONSTITUTION

The respondent argued that the Order of the Trinity, which provides
for the Trinity Cross is existing law for the purposes of s 6(1)(a) and as
defined at sub-s 6(3) of the 1976 Constitution.
‘Existing law’ is defined at s 6(3) as ‘a law that had effect as part of the
b law of Trinidad and Tobago immediately before the commencement of
this Constitution’—that is, before 1 August 1976.
‘Law’ is defined in s 3 of the 1976 Constitution as follows:
‘ “Law” includes any enactment, and any Act or statutory

c
instrument of the United Kingdom that before the commencement
of this Constitution had effect as part of the law of Trinidad and
Tobago, having the force of law and any unwritten rule of law.’
Section 6(1) of the 1976 Constitution provides that: ‘Nothing in

sections 4 and 5 shall invalidate—(a) an existing law.’
d The respondent’s argument is that the Letters Patent establishing the
Order of the Trinity were made by Her Majesty in 1969 under and by
virtue of s 56 of the 1962 Constitution (which vested the executive
authority of Trinidad and Tobago in Her Majesty, and which included
the Royal Prerogative). And, that Letters Patent issued under the
e Royal Prerogative, in the form of the ‘Letters Patent establishing the
Order of the Trinity’, are law and have the force of law (as opposed to
being an executive or administrative instruction as argued by
the applicants).
Support for this latter contention of the respondent is found in an
f article written by Roy Jordan, entitled ‘A Rare Form of Law Making:
Legislation made outside of Parliament’ (written from an Australian
colonial/commonwealth perspective). In that article Letters Patent issued
under the Royal Prerogative are described as: ‘an ancient form of law
making inherited from England and are instruments made by the
g monarch without reference to Parliament under the royal prerogative
which is that power of the Crown still existing and not superseded by
parliamentary legislation.’ Jordan gives as an example the ‘Order of
Australia Constitution and Ordinances’, which he explains as follows:
h ‘Legislation establishing the Order of Australia was made by the

Queen under Letters Patent in 1975 and published in the Australian
Government Gazette dated 17 February 1975 (no. S. 28).
The Constitution of the Order may be found in the schedule to
the Letters while section 30 provides for ordinances to be made.’
i
The parallels in the above Letters Patent creating the Order of
Australia to the Letters Patent creating the Order of the Trinity
are obvious.
The rationale and legitimacy for the exercise of this prerogative
power is, as Jordan explains, in the accepted tradition that the Sovereign
was considered to be ‘the fountain of all honour and dignity’ and a

traditionally enjoyed the sole right of conferring all titles of honour,
dignities and precedence.
As is explained by David Clark in ‘Principles of Australian
Public Law’ (2003), at paras 8:23 and 8:24, the royal prerogative may be
defined today as: ‘the residue of original royal legal power not based b
on statute.’ Its source is considered technically to be the common law
and it is not to be exercised arbitrarily, but ‘per legum’ (by the law) and
‘sub modo legis’ (under the law). As such, Clark speaks of offices
‘created by a prerogative legislation called the Letters Patent’.
There is no question of the legitimacy of the exercise of the c
prerogative power by Her Majesty in 1969 in issuing Letters Patent to
create the Order of the Trinity. What is contended by the applicants is
that that action was an executive/administrative instruction and not a
legislative act which carries the force of law.
I disagree with the applicants on this issue. In my opinion, d
as Lord Diplock pointed out in Thornhill v A-G (1979) 31 WIR 498
at 513 (in relation to ss 1, 2 and 3 of the 1962 Constitution, which for
the purposes of this issue are of similar effect of ss 4, 5 and 6 of the
1976 Constitution), ‘law’ as defined in s 3 of the 1976 Constitution
includes any unwritten law and therefore includes rules ‘of which the e
only legal source is the common law itself ’. And, as Lord Hoffmann
explained in relation to s 6(1) of the 1976 Constitution (in Matthew v
The State [2004] UKPC 33 at [1] and [2], (2004) 64 WIR 412 at [1]
and [2], [2005] 1 AC 433), albeit in relation to the mandatory
death penalty:
f
‘[1] … [Section] 6(1) provides that “nothing in sections 4 and 5

shall invalidate … an existing law”. The law decreeing the
mandatory death penalty was an existing law at the time when the
Constitution came into force and therefore, whether or not it is an g
infringement of the right to life or a cruel and unusual punishment,
it cannot be invalidated for inconsistency with ss 4 and 5. It follows
that despite s 2, it remains valid.
[2] The language and purpose of s 6(1) are so clear that,
whatever may be their lordships’ views about the morality or
h
efficacy of the death penalty, they are bound as a court of law to
give effect to it.’
In my opinion, there can be little doubt that the Letters Patent

establishing the Order of the Trinity are ‘existing law’ as defined by s 6(3) i
of the 1976 Constitution (and are ‘law’ as defined by s 3 thereof).
Not only is this view supported by the official publication of the
Letters Patent and the annotations accompanying it in the Constitution
of the Republic of Trinidad and Tobago Act, Ch 1:01—which states that
the Letters Patent are deemed to be issued under s 6 of the Act
TPC SDMS v A-G 445
a (which provides for the exercise of a prerogative under an ‘existing law’);

but the actual form, language and content of the Letters Patent suggest
an intention to legislate and to create rules which have the force of law.
As such, the exercise of the Royal Prerogative under s 56 of the
1962 Constitution was a legitimate exercise of executive power,
b which included the power to create prerogative legislation for the
creation of rules with the force of law for conferment of Honours.
In my opinion therefore, by reason of s 6(1) of the 1976 Constitution,
the Letters Patent were an existing law at the time the 1976 Constitution
came into force; and therefore, even though the Presidential
c confirmation of and the continuing existence and awarding of the
Trinity Cross has been and is likely to continue to be in breach of the
applicants’ rights and freedom guaranteed by s 4 of the Constitution,
neither the Letters Patent nor the Trinity Cross created and administered
by and through it can be invalidated for inconsistency with the
d provisions of s 4. This result follows if one is committed to construe and
apply the 1976 Constitution as the ‘supreme law’ of Trinidad
and Tobago, as a court is constitutionally mandated to do.
This court is therefore duty bound to apply s 6(1)(a) of the
Constitution as the majority of the Privy Council in the Matthews case
e
has decreed, whatever this court’s view may be about the legitimate or
ethical underpinnings of the continued existence of the Trinity Cross as
this nation’s highest honorary award.
COSTS
f In my opinion, this case raised serious issues of great national interest.
The applicants have successfully argued the discrimination and inequality
issues, though they have failed on the secular state, non-entanglement
issues and ultimately on the savings of existing law arguments. In the
exercise of my discretion and given the public interest in and the sharing
of success on the issues raised and argued, this court will order that each
g
party is to bear its own costs.
DISPOSITION
I have come to the conclusion that the creation and continued
h existence of the Trinity Cross, given the historical, religious and
sociological context of Trinidad and Tobago, combined with the
experiences, as well as the religious beliefs of Hindus and Muslims,
amount to indirect adverse effects discrimination against Hindus
and Muslims.
i
However, by reason of the savings of existing law provision in the
1976 Constitution, the Letters Patent establishing the Constitution of
the Order of the Trinity and the Trinity Cross, are deemed to be existing
law and therefore cannot be invalidated for inconsistency with the s 4
rights and freedoms under the 1976 Constitution. In the circumstances,
the applicants’ action is dismissed. Each party is to bear its own costs.
I wish to thank all counsel involved for their research and a

presentations and for their assistance to this court.
In my opinion, the recommendation in the de la Bastide Committee
Report that there be a full public debate on the issues concerning
National Awards is one worth heeding. There is clearly an urgent need
for such public consultation and for subsequent consensual decision b
making regarding the award of the Trinity Cross. In this process all are
well advised to consider carefully the suggestion of SPINKS, that all
‘religious symbolism’ be avoided in the designs and naming of our
National Awards.
c
Action dismissed.
Appeal
The appellants, Sanatan Dharma Maha Sabha of Trinidad and d
Ishmael appealed to the Court of Appeal of Trinidad and Tobago
(Civil Appeal No 71 of 2006) from the decision of the High Court
(Jamadar J) of 26 May 2006 declining to make declarations to the effect
that the Trinity Cross of the Order of Trinity discriminated and
continued to discriminate against non Christians, contrary to s 4(b), (d) e
and (h) of the Constitution of the Republic of Trinidad and
Tobago 1976. The respondent was the Attorney General of Trinidad and
Tobago. The facts are set out in the judgment of Hamel-Smith CJ (Ag).
f
Sir Fenton Ramsahoye and Anand Ramiogan (of the Trinidad & Tobago
Bar) for the appellants.
R Armour SC and K Garcia for the respondent.
20 December 2007. The following judgments were delivered. g
HAMEL-SMITH CJ (Ag).
This appeal is about the Trinity Cross, the country’s highest national
award. The appellants challenged the constitutionality of the award,
claiming that its very name rendered it discriminatory of their h
fundamental rights and freedoms protected under the Constitution.
For the purposes of this appeal it will suffice to state that the trial
judge found that the award infringed the equality provisions of the
Constitution viz, s 4(b), (d) and (h). The State has not challenged those
findings but has in fact, as a consequence of it, taken steps to have the i
award replaced.
What has aggrieved the appellants, however, is the fact that the trial
judge declined to make a declaration of unconstitutionality.
What happened was this: the judge, while expressing the view that the
award offended certain fundamental rights of the applicants, was not
TPC SDMS v A-G 447
a prepared to go the step further and declare the award unconstitutional.

The respondent persuaded him that the Order of the Trinity was part of
existing law when the 1976 Constitution was introduced.
Accordingly, he found that the Letters Patent issuing the Order of the
Trinity were part of the existing law for the purposes of s 6(1)(a) as
b defined in s 6(3) of the 1976 Constitution and therefore immune
from challenge.
Section 6(1) provides that:
‘Nothing in sections 4 and 5 (the fundamental rights and
c freedoms) shall invalidate—(a) an existing law.’
Subsection 6(3) defines ‘existing law’ as—
‘a law that had effect as part of the law of Trinidad and Tobago
d
immediately before the commencement of this Constitution.’
‘Law’ is defined in s 3 of that Constitution as including—
‘Any enactment, and any Act or statutory instrument of the UK

that before the commencement of the Constitution had effect as
e part of the law of Trinidad and Tobago, having the force of law and
any unwritten rule of law.’ (My emphasis.)
There are two elements to that definition: (i) it specifically refers to

‘any enactment’, Act or statutory instrument having the force of law, and
f (ii) any unwritten rule of law. I would think that Letters Patent do not
fall within the first element. As will be demonstrated shortly, it is more
likely to fall within the second.
‘Unwritten rule of law’ would be a reference to the common law. In a
paper on the common law by Tim A Thomas JD, he defined it as
g including those—
‘rules of law which do not rest for their authority upon any
express or positive statute or other written declaration but rather
upon statements of principles found in the decisions of the courts.
h Common law is the law of necessity and is applied in the absence
of controlling statutory law … it is not limited to published judicial
precedent but, includes the entire wealth of received tradition and
usage, fundamental principles, modes of reasoning and the
substance of its rules as illustrated by the reasons on which they are
i based, rather than the mere words in which they are expressed.’
In due course it will be demonstrated that the prerogative of the

Monarch is derived from the common law. But, first, it may be helpful
to give a brief history of the Letters Patent in question. It is necessary to
go back to the year 1962 when Trinidad and Tobago attained
independent status. A new Constitution was proclaimed and it provided a

for the creation of a Parliament. Section 22 of the Constitution provided
that there shall be a Parliament consisting of Her Majesty, a Senate and
a House of Representatives. Parliament was vested with the power to
make laws for the peace, order and good government of the
independent State (s 36). Laws would be introduced to the Parliament by b
way of Bills that required the approval of the Senate and House of
Representatives and the assent of the Governor-General on behalf of
Her Majesty (s 44).
Executive power or authority was vested in Her Majesty, exercisable
by the Governor-General on Her Majesty’s behalf (s 56). A Cabinet was c
constituted and vested with the power for the general direction and
control of the government, with collective responsibility to Parliament.
Counsel for the appellant submitted that with the introduction of its
own Parliament, albeit headed by Her Majesty, the State became solely
responsible for the making of its own laws and was no longer subject to d
any new laws passed by the Parliament of the United Kingdom.
It followed that whatever legislative powers Her Majesty possessed in
relation to the state, including her prerogative powers (which in itself
included the power to legislate by Letters Patent), ceased to exist.
Her Majesty simply could no longer legislate for or on behalf of the e
independent state.
The submission at least recognises that the Queen possessed
prerogative legislative powers, but with the caveat that they had ceased to
be of effect after 1962. In any event, it was counsel’s submission that the
issue of Letters Patent by Her Majesty in 1969, creating the Order of the f
Trinity, was an exercise of Her Majesty’s executive power under s 56 of
the 1962 Constitution. The Letters were issued on the advice of Cabinet
in accordance with the provisions of s 63 of that Constitution and were
therefore distinguishable from a legislative act that required the approval
of both Houses of Parliament. Accordingly, it remained an executive act g
and could not be considered an existing law in 1976.
Further, counsel contended, the right to confer honours had always
been an executive act, not a legislative one and therefore it could not be
said that the Letters Patent were part of existing law when the
1976 Constitution took effect. Counsel referred to the case of Campbell h
v Hall [1558–1774] All ER Rep 252 as authority for his proposition.
In the Campbell case, constitutional authority was conferred on the
legislative Assembly of Grenada, thereby giving it power to make
legislation for the island. Subsequent to this conferment, the King,
by way of Letters Patent, purported to impose a tax on the export of i
products from Grenada. The court declared the imposition of the
tax invalid. Having vested power to legislate in the Assembly of Grenada,
it was no longer possible for the King to pass an Edict in the United
Kingdom that imposed such a tax. The reasoning of the court was that
the imposition of taxes was one of the most significant legislative powers
TPC SDMS v A-G 449
a that one could imagine and could only be done by way of legislation
through the Assembly, and was therefore outside the prerogative powers
of the King.
Counsel submitted that the Sovereign had an inherent power to
confer honours in the same manner in which she could create a Duke or
b an Earl or appoint a Governor-General for that matter. The exercise of
that power was an executive act and was not justiciable. The power was
sometimes exercised on the advice of the Cabinet or the Prime Minister
and sometimes on Her Majesty’s own accord, but it none the less
remained an executive act.
c For all these reasons counsel maintained that the Letters Patent were
nothing more than the product of an executive act that, not unlike the
power vested in the Queen to confer honours, simply empowered the
Governor-General to bestow certain honours on citizens on Trinidad
and Tobago from time to time. To be truly ‘existing law’, counsel argued,
d it would have been necessary to lay it before both Houses of Parliament
for approval and thereafter for the Sovereign’s assent. Anything outside
this constitutional procedure could not be considered ‘law’.
In the Constitution of the Republic of Trinidad and Tobago Act,
Ch 1:01 (‘the 1976 Act’) under the heading ‘Subsidiary Legislation’,
e
there is reference to Orders relating to Existing Laws Amendment and
Modification Orders and the Letters Patent creating the Order of
the Trinity. Under that heading there is a note ‘Orders issued under
section 5(2) of the Act’. It is made clear by the note that ‘only those
provisions of the Orders that constitute general adaptation provisions and
that are still relevant are published below. The gaps are indicated by
f dotted lines’.
Section 5(2) permits the President, by Order published in the Gazette,
to make such modifications to any existing law as may appear to him to
be necessary or expedient to bring that law into conformity with
the Constitution.
g And s 5(5) provides that—
‘subject to any Order made under subsection (2), in any existing

law which continues in force after the appointed day or in any
public document, in relation to any time or any period
h commencing after the appointed day, unless the context otherwise
requires—
(a) any reference to Her Majesty the Queen, … or to the
Crown in respect to Trinidad and Tobago, shall be read and
construed as if it were a reference to the State;
i
(b) Any reference to the Governor-General shall be read
and construed as a reference to the President; …’
However one may read the Letters Patent appended to the 1976 Act,
whether as existing law or a public document, it seems clear, at least
from the footnote to the Letters Patent, that the references to a

Her Majesty and to the Governor-General were modified in accordance
with s 5(5) to be read as if the former were a reference to the State and
the latter to the President.
Further, there is a further note appended to the Letters Patent
establishing the Order of the Trinity that reads ‘deemed to be issued b
under section 6 of the Act’. Section 6(1) of the Act provides that—
‘Where under any existing law any prerogative or privilege is

vested in Her Majesty the Queen or the Crown in respect of
Trinidad and Tobago, that prerogative or privilege shall, on the c
appointed day, vest in the State and, subject to the Constitution and
any other law, the President shall have power to do all things
necessary for the exercise thereof.’
Accordingly, it is clear that the prerogative of Her Majesty or the d

Crown was part of the existing law at the relevant time and the Act
vested that power in the state, exercisable by the President. Further,
one is able to conclude that the Letters Patent were modified pursuant
to s 5 (and amended, see reg 18) and issued pursuant to s 6. Counsel for
the appellant indicated that this did not in any way alter his submission e
that the Letters were not existing law. He pointed out that in the Order
itself reference was made to compliance with the advice of the Cabinet for
the establishment and constitution of the society of honour. In other
words, he considered it an executive act by the President on the advice
of the Cabinet and not a legislative one. Legislation was not necessary, f
he submitted, for the grant of honours.
Counsel for the respondent submitted that in 1962 when the
Sovereign was retained as head of the newly independent state, it
permitted Her Majesty to continue to exercise her common law
prerogative powers over Trinidad and Tobago, either on the advice of the g
Cabinet or on her own accord, depending on the nature of the power
being exercised. In the case of Letters Patent creating the Order of
the Trinity, Her Majesty exercised her prerogative on the advice
of Cabinet. The issuing of the Letters Patent, counsel contended, was a
legislative act on Her Majesty’s part and as such they were part of the h
existing law in 1976.
The short issue and really the only area of contention between the
respective arguments is whether the exercise of the prerogative is an
executive act which does not have the force of law thereby excluding the
Letters Patent from the ‘existing law’ provision or whether the power i
under which they were issued was a form of legislative power inherent in
the Sovereign that had the force of law and fell within the ‘existing law’
provision.
Counsel for the respondent submitted that the prerogative vested in
Her Majesty had its source in the common law. To this end, there was
TPC SDMS v A-G 451
a express provision that ‘law’ in the Constitution included unwritten law

and the common law was part of that unwritten law (see Tim Thomas,
above). He referred to Sankerali v A-G (Civil Appeals Nos 58, 59 and 60
of 1999) (unreported) a case in which the Court of Appeal had to deal
with the issue of ‘existing law’ in relation to the form of execution for
b persons convicted of murder.
Murder is a common law offence and the Offences Against the Person
Act Ch 11:08 prescribes that any person found guilty of murder shall
suffer death. No form of execution is prescribed but the accepted form is
by hanging. That is the common law position but s 57 of the Criminal
c Procedure Act gives statutory approval to that form of execution by
reference to ‘hanged by the neck’ in the warrants issued for execution in
the second schedule to the Act. The instructions issued under those two
warrants are in furtherance of the sentence.
De la Bastide CJ (as he then was) held that that form of punishment
d was clearly authorised by the existing law before the commencement of
both the 1962 and 1976 Constitutions, both under the common law and
under statute. Accordingly, it was not open to the prisoner to claim that
the sentence of death was unconstitutional (see also the decision of the
Privy Council in De Freitas v Benny (1975) 27 WIR 318, [1976] AC
e 239).
In an article by David Clark ‘Principles of Australian Public Law’ the
author included as part of the common law the prerogative power, citing
several authorities in support (see in particular A-G v De Keyser’s Royal
Hotel Ltd [1920] AC 508, [1920] All ER Rep 80). One such authority
f was Gratwick v Johnson (1944) 70 CLR 1) in which it was stated: ‘… the
royal prerogative is itself part of the common law’ and ‘which at any
given time is legally left in the hands of the Crown’.
Clark described the power as ‘the residue of original royal legal power
not based on Statute. Technically, the prerogative is now part of the
g common law, though it did not originate as part of the common law as
the result of judicial decisions’. Its source, the author opined, was
considered technically to be the common law, not to be exercised
arbitrarily, but per legume (by the law) and sub modo legis (under the law).
In an article written by Roy Jordan, the author describes the
h prerogative as an ancient form of legislation, which has the force of law.
He described Letters Patent as an official document granting a
legal right. It was derived from the Latin literae patentes, meaning letters
lying open (to public inspection). He says that outside of the
well-known methods of law making (parliamentary legislation) there is
another form of legislation made under Letters Patent which are
i
prerogative instruments and includes legislation setting out procedures for
granting honours and awards which are made without parliamentary scrutiny and
have practically no review procedures.
He describes them as an ancient form of law making inherited from
England. They are instruments made by the monarch without reference
to Parliament under the royal prerogative, which has not been a

superceded by parliamentary legislation. Further, he states that once
signed by the Sovereign they are usually notified and published in
the Gazette. Not all Letters Patent, he says, will have legislative effect,
eg the formal source of power for State Governors and
Governors-General, which are to be found in Letters Patent. b
The author then proceeds to list a host of legislation made under
Letters Patent. Included in that list is legislation establishing the Order of
Australia made by the Queen under Letters Patent in 1975.
The Constitution of the Order is to be found in the schedule to
the Letters, while there is provision for Ordinances to be made c
eg the Insignia Ordinance 1977. The Department of the Prime Minister
and Cabinet and the Australian Honours Secretariat of Government
House jointly administer the Order of Australia and its regulations.
It is interesting to note that when implementing the Order of
Australia in 1975, the author relates that the Prime Minister continued the d
ancient practice of instituting the Order by Royal Letters Patent rather than by
parliamentary legislation. One advantage of this, the author says, was to
provide a degree of tradition and continuity with the old scheme of imperial
honours giving the appearance of the Monarch rather than the government making
the change and thereby avoiding parliamentary scrutiny. e
If that is an acceptable description it would follow that in exercising
her prerogative, Her Majesty would be carrying out a common law
function and it would be erroneous to say that in the exercise of the
prerogative power the Queen would be attempting to legislate
independently of Parliament. Her prerogative power permitted to her f
do so, independently of Parliament and, as with any legislation, the
Letters Patent would have the force of law.
Accordingly, when the 1962 Constitution conferred executive
authority on Her Majesty, inherent in her residual powers was the royal
prerogative to issue Letters Patent. And it was an exercise of that g
common law prerogative power that in 1969 Her Majesty issued the
Letters Patent creating the Order of the Trinity. It may be, as Jordon
suggests, that the executive decided to continue the ancient practice of
instituting the Order by Royal Letters Patent rather than by parliamentary
legislation.
h
The judge accepted the respondent’s submissions and held that the
exercise of the Royal Prerogative under s 56 of the 1962 Constitution
was a legitimate exercise of executive power, which included the power
to create ‘prerogative legislation’ for the creation of rules with the force
of law for conferment of Honours. This led him to the conclusion that
i
the Letters Patent were to be considered ‘existing law’ and thereby saved
from being deemed unconstitutional.
The trial judge drew a comparison between the Letters Patent
creating the Order of Australia and the Letters Patent establishing the
Order of the Trinity and found the parallels to be obvious. In other words,
TPC SDMS v A-G 453
a Trinidad and Tobago took the lead from the form of legislation resorted
to by Australia and did exactly the same—implemented the right to
confer honours by way of Letters Patent rather than by
parliamentary legislation.
The judge followed what Jordan had said as the rationale and
b legitimacy for the exercise of the prerogative power as being in the
accepted tradition that the Sovereign was considered to be ‘the fountain
of all honour and dignity’ and traditionally enjoyed the sole right of
conferring all titles of honour, dignities and precedence.
The trial judge also followed what Lord Diplock had said in Thornhill
c v A-G (1979) 31 WIR 498 at 513, in relation to ‘law’ in the
corresponding sections to the 1976 Constitution (ss 4, 5, and 6). ‘Law’,
his Lordship stated, as defined in the Constitution, includes any
unwritten law and therefore includes rules ‘of which the only legal
source is the common law itself ’. He relied on what was said by
d Lord Hoffmann in Matthew v The State [2004] UKPC 33 at [1], [2],
(2004) 64 WIR 412 at [1], [2], [2005] 1 AC 433 in relation to the
death penalty.
The judge reasoned that there could be little doubt that the Letters
Patent are ‘existing law’ as defined by s 6(3) of the 1976 Constitution
e and are law as defined by s 3. He considered that not only was this view
supported by the official publication of the Letters Patent and the
annotations accompanying it in the 1976 Act (referred to above) but also
that the actual form, language and content of the Letters Patent
suggested an intention to legislate and to create rules which were to have
f the force of law.
It was on this reasoning that he concluded that the exercise of the
Royal Prerogative under s 56 of the 1962 Constitution was a legitimate
exercise of executive power but one that was exercised to create
prerogative legislation viz, the creation of rules with the force of law for
g conferment of Honours.
This court has not been shown any additional authorities that could
assist it in determining the issue. The gist of the appellant’s argument is
that the conferment of honours is an executive act. With that I
would agree. But it seems to me that the focus there is on the act of
h conferment and appears to disregard the source of the power to confer.
Traditionally, it seems that the power to confer honours lay within the
Sovereign’s prerogative powers. As long as the Sovereign exercised that
power there could be little or no argument that it was a power that had
the force of law in that it was recognised by the law as a power that was
legitimately exercisable by the Sovereign.
i
With the advent of independence, England’s former colonies were
being granted the power to legislate for themselves (parliamentary
legislation) but a State could retain (by appropriate provision in its
Constitution) the Sovereign as Head of State with the plenitude of her
powers, which included her prerogative powers that were capable of
making legislation. Like Australia, it seems to me that Trinidad and Tobago a

opted for this form of independence and retained the Sovereign with the
attendant prerogative powers.
With the attainment of Republican status, Trinidad and Tobago opted
to retain the prerogative powers of the Sovereign by vesting them in the
State and exercisable by the President. The power therefore to confer b
honours, as distinct from the act of conferment of honours, thereafter
rested with the President, exercisable on the advice of Cabinet.
Without the power there could be no conferment of national awards.
Authors, Clark and Jordan, seem to indicate that the power to confer
honours could have been introduced by parliamentary legislation but c
that Australia took a decision to do it by the ancient form of law making.
Counsel for the appellant submitted that the conferment of honours
was not law in the sense that there was anything to enforce or breach of
which led to certain legal consequences or penalties. I do not think that
that is a sufficient basis upon which to conclude that it is not law. d
There is much legislation that grants power to perform certain acts
without any legal consequences eg the power of appointment by certain
commissions. Without such power the commission would be powerless
to appoint someone to a particular office. The fact that the person could
refuse to accept the post (or award in this case) would be irrelevant in e
determining whether the power was part of the law. Accordingly, the
fact that there is no provision to enforce the conferment of honours does
not detract from the fact that it is part of the existing law. The reality is
that the Letters Patent confer a power on the President to do something
that he would not otherwise have been able to do on his own. It may be, f
however, that if the President attempted to confer the Medal of Merit
on a person not a citizen of the State, the issue may be reviewable since
he may have acted ultra vires the Letters Patent. I do not however decide
that point.
It is interesting to note that in England the Public Administration g
Select Committee, in its 2002–03 session (Press Notice No 12) was
considering radical new law to make ministers more accountable and for
them to seek approval for the use of their very wide range of powers
under the ‘royal prerogative’ including the right to confer honours.
The suggestion was that the new Act be the sole authority for the use of h
these powers. The anticipated effect would be to produce a better
balance between the powers of Parliament and the (prerogative) powers
of Ministers.
In an Issue and Question Paper it was stated that the Royal
Prerogative was recognised by the courts as part of the common law. i
What formed the main subject matter of the inquiry were the ministerial
prerogative (or executive) powers, powers that were handed down to
ministers by the monarch by constitutional convention so that the
powers came to be used by ministers on the monarch’s behalf.
The complaint was that Parliament was not involved in the transfer of
TPC SDMS v A-G 455
a power and so the powers were dubbed ‘Ministers’ executive powers’.

Were it not for these ancient powers, the paper stated, governments
would have had to take equivalent authority through parliamentary
legislation. Listed among the several executive powers is the conferment
of honours.
b The paper further recognised that most powers used by ministers
today come from statute (parliamentary legislation) rather than from the
prerogative. Ministers’ use of these powers had been delegated for over a
century by the monarch to ministers. Parliament was not involved and
did not agree to the transfer. The most that could be said was that
c Parliament had acquiesced in the change.
There is one point that needs to be made. It is that there is a
fundamental flaw in the presumption that nothing the ‘executive’ does
can have ‘legislative’ effect. This is indeed a fallacy when one considers
the question of delegated legislation. There are certain Acts of Parliament
d that confer power on a minister to make regulations. The minister may
be doing an executive act but the regulations made by him have
legislative effect.
Further, the Constitution itself contemplates that there may be
another form of legislation. Section 61(1) provides that ‘… the power of
e Parliament to make laws shall, except where otherwise authorized by statute,
be exercised by Bills passed by the House of Representatives and
the Senate …’ The words in italics suggest that an Act of Parliament can
stipulate a provision that allows the making of laws by Parliament
otherwise than through the procedure of a Bill. Further, s 6(1) of the
f 1976 Constitution Act vests the prerogative in the State (exercisable by
the President). The prerogative, as demonstrated above, is an ancient
form of law making and could fall within the exception of s 61(1).
I find it difficult to fault the trial judge in his findings. Admittedly,
there is little or no authority available, at least to this court, and the little
g we have been able to unearth (some with the assistance of counsel) leads
to the conclusion that while the power to confer honours is an executive
one it has the force of law that allows it to qualify as existing law under
the provisions of the Constitution.
h
Accordingly, I would dismiss the appeal with costs. Since there has
been no order for budgeted costs, it seems to us that Pt 67.14 of the
Civil Proceedings Rules 1998, requires that the costs be determined on
the basis of two-thirds of the amount allowed on the prescribed scale.
We do not so decide but shall invite submissions in writing on the
question of quantum in order to determine these costs. The parties shall
i do so within 14 days hereof.
WARNER JA.
I have read the judgment of Hamel-Smith CJ (Ag) and for the reasons
given I agree that the appeal be dismissed with costs.
ARCHIE JA. a
I have read the judgment of Hamel-Smith CJ (Ag) and I too agree
that the appeal be dismissed with costs.
Appeal dismissed.
b
Appeal
The appellants, Sanatan Dharma Maha Sabha of Trinidad and
Ishmael appealed from the decision of the Court of Appeal of Trinidad
and Tobago (Hamel-Smith CJ (Ag), Warner and Archie JJA) c
on 20 December 2007 dismissing their appeal against the decision of the
High Court (Jamadar J) of 26 May 2006 declining to make declarations
to the effect that the Trinity Cross of the Order of Trinity discriminated
and continued to discriminate against non Christians, contrary to s 4(b),
(d) and (h) of the Constitution of the Republic of Trinidad and d
Tobago 1976. The respondent was the Attorney General of Trinidad
and Tobago. The facts are set out in the judgment of the Board delivered
by Lord Hope.
Sir Fenton Ramsahoye and Anand Ramiogan (of the Trinidad and
Tobago Bar), Alan Newman QC and John Horan (instructed by e
Bankside Commercial Ltd) for the appellants.
James Dingemans QC and Anoushka Ramsaram (instructed by
Charles Russell LLP) for the respondent.
28 April 2009. The following judgment of the Board and concurring f

judgment were delivered.
LORD HOPE OF CRAIGHEAD.
[1] By Letters Patent dated 26 August 1969 a society of honour was
established by Her Majesty the Queen in Trinidad and Tobago by and g
with the advice of the Cabinet. Its purpose was to accord recognition to
citizens of Trinidad and Tobago and other persons who had rendered
distinguished or meritorious service or for gallantry. It was to be known
as the Order of Trinity. The highest award was to be the Trinity Cross of
the Order of Trinity. Except for the Victoria Cross and the George h
Cross, it was to take precedence over all other decorations. The other
awards, in descending order of importance, were to be the Chaconia
Medal, the Humming Bird Medal and the Medal of Merit. The Letters
Patent were gazetted on 6 September 1969. Thereafter a National
Awards Committee for the order was set up as provided for by the i
Constitution for the order set out in the schedule to the Letters Patent,
nominations were received and awards began to be made.
[2] The Cabinet’s decision to advise Her Majesty that the order
should be established was taken on the advice of a committee that was
set up in 1963 to make recommendations on national awards. It
TPC SDMS v A-G 457
a collected data on national awards from the United Kingdom, from

emergent countries of the Commonwealth and from the United States
of America. The nation of Trinidad and Tobago is a multi-cultural and
multi-racial society. So the committee also sought the views of, and held
discussions with, various religious and other organisations. It was on its
b recommendation, after having taken all these steps, that the name of the
order and of its highest award was chosen. But questions soon began to
be raised about the propriety of the Trinity Cross as the nation’s highest
award. It was perceived by Hindus and Muslims living in Trinidad and
Tobago as an overtly Christian symbol both in name and in substance.
c [3] In February 1997 the National Awards Committee was asked to
examine the national awards system after public consultation. Its
Chairman was Michael de la Bastide, then Chief Justice of Trinidad
and Tobago. It acknowledged that the highest award had attracted
negative criticism, especially as the word ‘Cross’ was perceived by many
d to be a Christian symbol. It noted that the word ‘Trinity’ too might be
regarded as a Christian reference, although that objection if taken to its
logical conclusion would mean that the country’s name would also have
to be changed. A majority of the committee favoured a change of name
to the Order of Trinidad and Tobago. No immediate action was taken on
e the publication of its report.
[4] On 16 November 2004 the appellants applied by way of a
constitutional motion in the High Court for various declarations to the
effect that the Trinity Cross of the Order of Trinity discriminated and
continued to discriminate against them and others who are not
f Christians, contrary to s 4(b), (d) and (h) of the Constitution of the
Republic of Trinidad and Tobago 1976. On 26 May 2006 the trial judge,
Jamadar J, held that, but for the savings clause for an existing law in
s 6(1) of the Constitution, the appellants were entitled to a finding that
their constitutionally guaranteed rights to non-discrimination on the
g basis of religion and to equality and equal treatment by law and
administrative action had been and continued to be breached by the
creation and continuation of the award of the Trinity Cross. As he
explained at p 76 of his judgment, he located the infringement of heads
(b), (d) and (h) of s 4 through the conjoint effect of those provisions. But
h he declined to make the declarations that the appellants had asked for.
This was because in his opinion the Letters Patent establishing the
Constitution of the order of Trinity and the Trinity Cross must be
deemed to be existing law, so they could not be invalidated on the
ground of their inconsistency with the rights and freedoms declared in
i
s 4. He dismissed the action and held that each party must bear its own
costs. On 20 December 2007 the Court of Appeal (Hamel-Smith CJ
(Ag), Warner and Archie JJA) dismissed, with costs, the appellants’ appeal
against the decision of the trial judge. It is against that decision that the
appellants now appeal, with leave of the Court of Appeal, to their
Lordships’ Board.
THE ISSUE BEFORE THE BOARD a

[5] Before the Court of Appeal the State did not challenge the trial
judge’s findings that the award of the Trinity Cross infringed s 4(b), (d)
and (h) of the Constitution. On the contrary, as Hamel-Smith CJ (Ag)
noted at the outset of his judgment, it has taken steps to have the award
replaced. A committee was appointed to review all aspects of the award b
of the Trinity Cross. On 17 April 2008, having considered a follow-up
report of the committee, the Cabinet agreed that the name of the
highest national award should be The Order of the Republic of Trinidad
and Tobago, that the name of the Society to replace the Order of the
Trinity should be The Distinguished Society of Trinidad and Tobago, that c
the highest national award should be re-designed so as to replace the
cross with a medal and that the Letters Patent should be amended to give
effect to those decisions. The question whether the award of the Trinity
Cross was discriminatory in the respects found by the trial judge is
therefore no longer in issue.
d
[6] The issue which their Lordships have been asked to consider is
whether the Letters Patent which established the Order of Trinity were
part of the existing law of the Republic of Trinity and Tobago within the
meaning of s 6(1)(a) of the 1976 Constitution. The appellants maintain
that they have an interest to argue this point notwithstanding the
decisions that have now been taken to replace the Trinity Cross. The e
respondent has not sought to argue the contrary, and their Lordships
consider that he was right not to do so. It is clear that, but for his finding
that the Letters Patent were part of the existing law, the trial judge
would not have dismissed the action but would have granted at least
some of the declarations the appellants sought. Moreover, while the f
decisions that have now been taken have resolved the issue for the future,
they do not alter the fact that, for as long as it continued to be the
nation’s highest award, the Trinity Cross had been since its creation, for
the reasons explained by the trial judge, discriminatory. The appellants
are entitled to a declaration to that effect, if this is not precluded by the g
existing law clause.
THE EXISTING LAW PROVISIONS
[7] Section 6(1)(a) of the 1976 Constitution provides that nothing in
ss 4 and 5, which enshrine fundamental human rights and freedoms and h
provide for their protection, shall invalidate ‘an existing law’. ‘Existing
law’ is defined by s 6(3) of the 1976 Constitution as meaning a law that
had effect as part of the law of Trinidad and Tobago immediately before
the commencement of the Constitution. ‘Law’ is defined in s 3(1),
which states that it—
i
‘includes any enactment, and any Act or statutory instrument of
the United Kingdom that before the commencement of this
Constitution had effect as part of the law of Trinidad and Tobago,
having the force of law.’
TPC SDMS v A-G 459
a [8] The Constitution of the Republic of Trinidad and Tobago

Act 1976 (‘the 1976 Act’) contains a number of transitional and savings
provisions. Section 18 deals with enactments. The expression
‘enactments’ has a narrower meaning here than the word ‘law’ as defined
by s 3(1) of the Constitution, as s 18 makes clear. It does not cover the
b same ground, as the meaning that is given to this expression for the
purposes of s 18 is a qualified one. It states:
‘All enactments passed or made by any Parliament or person or

authority under or by virtue of the former Constitution and not
c before the appointed day declared by a competent Court to be void
by reason of any inconsistency with any provision of the former
Constitution, including in particular sections 1 and 2 thereof, and
that are not repealed, lapsed., spent or that had not otherwise had
their effect, shall be deemed to have been validly passed or made
d and to have had full force and effect as part of the law of Trinidad
and Tobago immediately before the appointed day, even if any such
enactments were inconsistent with any provision of the former
Constitution including in particular sections 1 and 2 thereof.’
[9] The expression ‘the former Constitution’ refers to the Trinidad

e and Tobago Constitution set out in Sch 2 to the Trinidad and Tobago
(Constitution) Order in Council 1962 which was replaced by the 1976
Constitution when Trinidad and Tobago became a Republic on 1 August
1976. Sections 1 and 2 of the 1962 Constitution were the predecessors
of what are now ss 4 and 5 of the Constitution of 1976. Section 22
f provided for the establishment of Parliament, and s 36 conferred on it
the power to make laws. Existing laws were preserved for the 1962
Constitution by s 4 of the Trinidad and Tobago (Constitution) Order in
Council 1962. But the power to make laws for the colony that was
vested in the Crown prior to the coming into force of the 1962
g Constitution was not preserved by it.
THE APPROACH OF THE COURTS BELOW
[10] The trial judge held that the Letters Patent establishing the
Order of Trinity were made by Her Majesty under and by virtue of
h s 56(1) of the 1962 Constitution, which vested the executive authority
of Trinidad and Tobago in Her Majesty, and that this included the
exercise of the royal prerogative. But he rejected the appellants’ argument
that this was to be seen simply as an administrative or executive act
beyond the reach of the existing law clause. In his opinion it was a
i
legislative act which had the force of law. He said, at p 79 of his
judgment, that it was a legitimate exercise of executive power, which
included the power to create prerogative legislation with the force of law
for the creation of honours.
[11] The judge found support for this view in the official publication
in the Laws of Trinidad and Tobago (LRO 1/2006) of the Letters Patent
and the annotations accompanying it in the index of subsidiary a

legislation annexed to the 1976 Act, Ch 1:01. He also had regard to the
form, language and content of the Letters Patent themselves, which in
his opinion suggested an intention to legislate. The annotations that
accompany the publication of the Letters Patent in the annex state that
they were originally issued by command of Her Majesty, had been b
modified in accordance with s 5 of the 1976 Act so as to be brought into
accord with the Act and the Constitution and were deemed to be issued
under s 6, which conferred power on the President of the Republic to
do all things necessary for the exercise under any existing law of any
prerogative or privilege vested in Her Majesty. Following Matthew v The c
State [2004] UKPC 33, (2004) 64 WIR 412, [2005] 1 AC 433, in which
it was held that whether or not the law decreeing the mandatory death
penalty was an infringement of the right to life or a cruel and unusual
punishment it could not be invalidated for inconsistency with ss 4 and 5
because it was an existing law, the judge held that he had no alternative d
but to apply s 6(1)(a) of the Constitution whatever his view might be
about the legitimate or ethical underpinning of the continued existence
of the Trinity Cross as the nation’s highest honorary award.
[12] It should be noted in passing that the statement in the
annotations to the publication of the Letters Patent that they had been e
modified in accordance with s 5 of the 1976 Act which were mentioned
by the trial judge may not be accurate. The Existing Laws Modification
Order 1976, which was made by the President under s 5(2) of the 1976
Act and published in the Gazette on 2 September 1976, makes no
reference to the Order of Trinity. The Letters Patent which established f
the order appear to have been added to the modification order by the
Law Revision Committee at a later date. It is not the function of the
Law Revision Committee to alter the substance of the law: Law
Revision Act, s 17(1). But, as their Lordships will show later, nothing
turns on these points. g
[13] Delivering the judgment of the Court of Appeal,
Hamel-Smith CJ (Ag) said that he agreed with the appellants that the
conferment of honours was an executive act. But it seemed to him that
this argument appeared to disregard the source of the power to confer
them, which lay within the sovereign’s prerogative powers and had the h
force of law as it was a power that was legitimately exercisable by the
sovereign. Although there was no provision to enforce the conferment of
honours, the reality was that the Letters Patent conferred a power on the
President to do something that he would not otherwise have been able
to do on his own. He rejected the argument that nothing that the i
executive did could have legislative effect. In his view, the prerogative
was an ancient form of law making which could fall within the
exception of s 61(1) which permits Parliament to make laws otherwise
TPC SDMS v A-G 461
a than by a Bill. His conclusion was that, while the power to confer
honours was an executive one, it had the force of law which allowed it
to qualify as ‘existing law’ under the Constitution.
[14] The critical question in both courts was seen to be whether the
issuing of the Letters Patent was simply an executive or administrative act
b or was a means of making law in the exercise of the royal prerogative. It
was assumed that, once it had been decided that this was a means of
making law, there was no further room for argument. The honours
system which the Letters Patent created must be taken to have been
existing law when Trinidad and Tobago became a republic in 1976. The
c effect of the 1976 Constitution was plain. If existing laws are found to be
inconsistent with the rights and freedoms that were declared in s 4, it
will be for Parliament to provide the remedy: Matthew v The State (2004)
64 WIR 412; see also Watson v R [2004] UKPC 34 at [52]–[54], (2004)
64 WIR 241 at [52]–[54], [2005] 1 AC 472. It was not suggested in
d either court that there might be a reason for examining the situation in
1969, which was the time when the Letters Patent were issued. The
question which they did not address was whether the institution of the
Trinity Cross as the nation’s highest honour was compatible with the
guarantees of equality, equal treatment and freedom of conscience and
e
religious belief that were set out in the 1962 Constitution.
THE COMPATIBILITY ISSUE
[15] The same guarantees of equality, equal treatment and freedom of
conscience and religious belief as those set out in s 4(b), (d) and (h) of
the 1976 Constitution were recognised and declared by s 1 of the 1962
f Constitution. The opening words of s 2 of the 1962 Constitution, too,
are to the same effect as s 5(1) of the 1976 Constitution. They provide:
‘Subject to the provisions of sections 3, 4 and 5 of this

Constitution, no law shall abrogate, abridge or infringe or authorise
g the abrogation, abridgement or infringement of any of the rights
and freedoms hereinbefore recognised and declared …’
[16] Section 3(1) of the 1962 Constitution provided that ss 1 and 2

were not to apply in relation to any law that was in force in Trinidad and
h Tobago at its commencement. Section 4 made provision for Acts passed
during a period of emergency, and s 5 enabled Parliament to declare that
an Act was to have effect notwithstanding ss 1 and 2, provided the final
vote on the Bill in each House was supported by not less than four-fifths
of its members. These exceptions do not apply to this case. The Letters
i
Patent were not issued until 1969, so they did not have the protection of
the existing law provision in s 3(1). Sections 4 and 5 plainly do not
apply either.
[17] In Maharaj v A-G of Trinidad and Tobago (No 2) (1978) 30 WIR
310 at 317–318, [1978] 2 All ER 670 at 677, the Judicial Committee
said that, while s 3 eliminated any argument that anything done that was
authorised by a law in force immediately before 31 August 1962 a

abrogated, abridged or infringed any of the rights or freedoms
recognised or declared in s 1, it did not legitimise for the purposes of s 1
conduct which infringed any of the rights and freedoms there described
and was not lawful under the pre-existing law. The protection which the
recognition of those rights and freedoms afforded was against b
contravention of those rights or freedoms ‘by the state or by some other
public authority endowed by law with coercive powers’: see also
Thornhill v A-G of Trinidad and Tobago (1979) 31 WIR 498 at 516, [1981]
AC 61 at 74. On the other hand if the creation of the Order of Trinity
by the Letters Patent was an enactment made under or by virtue of the c
former Constitution, as the respondent submits, the creation of the
Trinity Cross of the Order of Trinity will fall to be treated as valid under
s 18 of the 1976 Act notwithstanding any such incompatibility. It was
not declared by a competent court to be invalid before the date of
its commencement. d
THE SUBMISSIONS
[18] For the first and second appellants, Sanatan Dharma Maha
Sabha of Trinidad and Tobago Inc and Satnarayan Maharaj who represent
the Hindu community, Sir Fenton Ramsahoye SC adhered to the
argument that was presented below. In his submission the issue of the e
Letters Patent was an executive act. They were the evidence by which an
executive decree was disclosed to the nation, and no more than that. It
was not for Her Majesty to legislate for Trinidad and Tobago. When the
country attained independence in 1962 this became, under its
Constitution, the exclusive responsibility of its Parliament. Furthermore f
the award of honours was always, he said, an executive act on the part of
the sovereign. Mr Newman QC for the third and fourth appellants, the
Islamic Relief Centre Ltd and Inshan Ishmael who represent the Muslim
community, also submitted that issue of the Letters Patent was an
executive act, as it was done on the advice of the Cabinet and without g
the involvement of the legislature. But he presented an additional
argument. He submitted that the validity of the issuing of the Letters
Patent in 1969 must be judged by whether or not this act complied with
the 1962 Constitution. On the judge’s findings, this act breached the
human rights provisions in the Constitution, and the appellants were h
entitled to a declaration to that effect under s 14(1) of the
1976 Constitution.
[19] Mr Dingemans QC for the Attorney General objected to the
argument that the issue of the Letters Patent were invalid from the outset
being raised before the Board as the point had not been taken below. He i
said that it would not be a proper exercise of the appellate function for
the Board to declare that the institution of the Trinity Cross was
discriminatory in 1969. There was no finding by the trial judge that the
provisions of the 1962 Constitution had been infringed, nor had it been
suggested in either court that such a finding should be made. The judge’s
TPC SDMS v A-G 463
a findings had been based on the situation as he saw it at the time of his
judgment. The situation might well have been different in 1969 when
the Cabinet advised Her Majesty in the light of the report it received
from the committee. The only question was whether the system that was
created by the Letters Patent was existing law for the purposes of the
b savings clause in the 1976 Constitution. For this purpose they were to be
seen as part of the common law, as the issue of Letters Patent was a form
of executive legislation made in pursuance of the royal prerogative.
[20] A joint note was filed following the hearing of the appeal in
which the parties made further submissions, particularly with reference
c to s 18 of the 1976 Act to which their Lordships’ attention had not been
drawn during the hearing and which was not mentioned in the courts
below. For the appellants it was submitted that s 18 of the 1976 Act did
not apply to the Letters Patent as, after the creation in 1962 of an
independent legislature for the colony, there was no prerogative power
d left in the Crown to legislate. The creation of the Order of Trinity was
an executive act, which was permitted by s 56 of the 1962 Constitution.
The respondent accepted that the granting of honours was not the
making of ordinary laws. But it was submitted that this was nevertheless
an enactment of the kind mentioned in s 18 as it was an act of executive
e
prerogative legislation which had always been the preserve of the Crown.
As such, the Letters Patent were validated by that section as an existing
law for the purposes of the 1976 Constitution.
SECTION 18 OF THE 1976 ACT
[21] Their Lordships must deal first with the respondent’s argument
f that s 18 of the 1976 Act applies because the use of Letters Patent to
establish honours is a form of prerogative executive legislation. The
phrase ‘prerogative executive legislation’, which was also adopted by the
trial judge, is not a term of art. It does not have the weight of authority
behind it. Nor is it among the expressions used in the 1976 Act and the
g Constitutions of 1962 and 1976. It has been adopted for the purposes of
the respondent’s argument as a convenient label to distinguish this form
of law-making from the power to make ordinary laws under the general
legislative power that, under the 1962 Constitution, belonged exclusively
to Parliament. It combines within it the concepts of an act of
h law-making and something that is done in the exercise of the prerogative
power independently of Parliament. But the very fact that the words
‘executive’ and ‘legislation’ are put together in this way indicates that it is
a hybrid creature, whose precise character requires further analysis.
Attaching this label to the issue of the Letters Patent does not solve the
i
crucial question that has to be answered. The question is whether their
issue, however one describes it, was an ‘enactment’ of the kind that is
contemplated by s 18 of the 1976 Act—an enactment that was made
under or by virtue of the 1962 Constitution.
[22] The fact that the Letters Patent were issued under the royal
prerogative does not resolve the question whether this was an enactment
either. It is commonplace for appointments to senior positions to be a

made by Her Majesty by the issue of Letters Patent. These, plainly, are
executive acts only. Section 23 of the Constitutional Reform Act 2005,
which provides that Her Majesty may by Letters Patent appoint one of
the judges of the Supreme Court of the United Kingdom to be
President and one to be Deputy President, is one example. There are b
many others, including appointments to the rank and dignity of Queen’s
Counsel. This does not exhaust the purposes for which Letters Patent
may be issued. The prerogative in its original form enabled the sovereign
to do all manner of acts, including that of legislating. Although much
restricted, that power survives to the present day. In this case, however, c
the context requires a more precise analysis of how the act that was
performed in this case ought to be characterised. It cannot be detached
from its constitutional and colonial background.
[23] Sir Kenneth Roberts-Wray, formerly Legal Adviser to the
Commonwealth Relations Office and the Colonial Office, described the d
nature and use of Letters Patent in the Commonwealth context in his
book Commonwealth and Colonial Law (1966). At p 143 he discussed the
various legislative and executive powers possessed by the sovereign
derived, directly or indirectly, from the prerogative. The use of Letters
Patent, he said, is the instrument by which offices are created and powers e
relating to various matters such as the appointment and dismissal of
officers are delegated to the holders of such offices. This description of
their use suggests that, for some purposes, the use of Letters Patent may
indeed assume a legislative character. At p 144 he said that there is little
distinction of substance between Orders in Council and Letters Patent,
f
at any rate in the case of a ceded or conquered colony in which the
Crown’s legislative power remains intact. Here too is an indication that
Letters Patent may be used for a legislative purpose. Their availability for
this purpose is consistent with the nature of the royal prerogative under
which they are issued. Dicey described it as nothing else but the residue
of discretionary or arbitrary authority which at any given time is legally g
left in the hands of the Crown: Law of the Constitution
(10th edn, 1959), p 424.
[24] In Principles of Australian Public Law (2003), para 8.24, Professor
David Clark, describing the prerogative powers that still exist in
Australia, says that they take two forms, one of which he refers to h
as legislation:
‘First, several of the Governors of the States and the Governor

General of Australia are appointed under the Royal Prerogative.
Their offices are, in most cases, created by a prerogative legislation i
called the Letters Patent.’
The use of Letters Patent as a form of legislation within the accepted

procedures of rule-making in a democratic society is also discussed in a
TPC SDMS v A-G 465
a research note prepared by the Department of the Parliamentary Library

of the Commonwealth of Australia. After referring to Acts of Parliament
and delegated legislation, the author, Roy Jordan, states:
‘Outside of these well known methods of law making stands

b legislation made under Letters Patent, also known as prerogative
instruments, and includes legislation setting out procedures for
granting honours and awards which are made without
parliamentary scrutiny and have practically no review procedures.’
c [25] These references provide some support for the respondent’s

argument. But they do not address the question whether this was an
enactment of the kind referred to in s 18. The question whether an
executive act that takes the form of the issue of Letters Patent is an
executive act pure and simple or is an act of a legislative character seldom
d requires to be inquired into. Normally it is a matter of no importance at
all to analyse its precise character. This is not so where the issue of
Letters Patent must be subjected to scrutiny under the 1976
Constitution’s existing law clause. That the exercise of the prerogative is
open to scrutiny in this way is not in doubt. The question is whether a
e decision as to the legitimacy of its exercise in this case is pre-empted by
the validity that s 18 of the 1976 Act accorded to existing enactments.
[26] Section 18 applies to ‘enactments passed or made by any
Parliament or person or authority under or by virtue of the former
Constitution’. The phrase ‘person or authority’ is wide enough to apply
f to things done by Her Majesty in the exercise of the prerogative. But did
the 1962 Constitution authorise her to make enactments as part of the
law of Trinidad and Tobago? And, if it did, was the creation of the Order
of Trinity by the issue of Letters Patent an ‘enactment’ within the
meaning of s 18? Was it for the purpose of legislating under or by virtue
g of the Constitution that the prerogative was exercised?
[27] The general principle is that, if the Crown grants a
representative legislative body to a conquered colony without reserving
to itself power to legislate, the power to legislate under the prerogative is
no longer exercisable. In Campbell v Hall (1774) 1 Cowp 204, where the
h Governor General of Grenada had been authorised by Letters Patent to
establish a legislature, it was held that the King had precluded himself
from the exercise of legislative authority over the island.
In Re Lord Bishop of Natal (1864) 3 Moore PC (NS) 115 it was held that,
after the creation of an independent legislature in the Cape of Good
i
Hope and Natal, there was no prerogative power to establish
ecclesiastical authorities with coercive authority whose status and powers
the colony could be required to recognise. This was not something that
could be done without an Act of Parliament. In Sammut v Strickland
[1938] 3 All ER 693 at 703 the Board said that the Crown was not
deprived in these circumstances of the right to legislate irrevocably. But
it confirmed that, as a general rule, such a grant without the reservation a

of a power of concurrent legislation precludes the exercise of the
prerogative for this purpose while the legislative institutions continue
to exist.
[28] Sir Kenneth Roberts-Wray, Commonwealth and Colonial Law, pp
158–159, offered further guidance on this point. He drew attention to b
the difference between what he described as the constituent power—the
power to amend the Constitution—and the ordinary legislative power to
make laws for the peace, order and good government of the colony. He
said that it did not follow from the grant of legislative authority to the
local legislature that the sovereign could not amend the Constitution, or c
even revoke it, so long as the grant of legislative authority was preserved.
In his view, the power to amend the Constitution, including provisions
relating to the office of Governor, belongs to the Crown, whether
expressly reserved or not. But at p 162, having considered Re Lord Bishop
of Natal (1864) 3 Moore PC (NS) 115 and Sammut v Strickland [1938] d
3 All ER 693, he said that there was a strong case for maintaining that,
unless there is an express reservation to the contrary, the Crown does not
possess a concurrent power to make ordinary laws so long as legislative
institutions continue in the colony.
[29] The respondent accepts that the effect of the 1962 Constitution e
was that the Crown lost the power to make ordinary laws for Trinidad
and Tobago. In other words, to adopt the language of s 18 of the
1976 Act, Her Majesty was not able to make laws of that kind under or
by virtue of the former Constitution. If the issue of the Letters Patent
could be said to have been an enactment of the kind that was within the f
power that had been given exclusively to Parliament, it must follow that
it was not authorised by the Constitution and that s 18 of the 1976 Act
could not give it validity. But, says Mr Dingemans, the granting of
honours is not the making of ordinary laws. He does not suggest that it
is an exercise of the constituent legislative power that Roberts-Wray g
identified. That would not have assisted his argument. This is a power
that belongs to the Crown. If exercised, it is exercised by the sovereign
on her own authority, not under or by virtue of the Constitution that is
affected by it. On Roberts-Wray’s analysis of the powers of law-making
that the common law recognises, therefore, the creation of the order was h
neither one thing nor the other. It was not an act of ordinary
law-making, because the power to do that belonged exclusively to
Parliament. And it was not an exercise of the constituent legislative
power either. That does not exhaust the argument, however. The
respondent now submits in his contribution to the joint note that the i
validity of what was done as an act of prerogative executive legislation
depends on the true construction of s 57 of the 1962 Constitution.
[30] Section 57(1) of the 1962 Constitution was in these terms:
TPC SDMS v A-G 467
a ‘There shall be a Cabinet for Trinidad and Tobago which shall

have the general direction and control of the government of
Trinidad and Tobago and shall be collectively responsible therefor
to Parliament.’
b
It was by and with the advice of the Cabinet that the Order of Trinity
was established by Her Majesty. Constitutional validity was given in this
way to its creation by the executive. But the authority to create the
order lay not with the Cabinet but with Her Majesty in the exercise of
the prerogative. The sovereign is the fountain of all honours in all
c
territories of which she is Queen: Chitty Treatise on the Law of the
Prerogatives of the Crown (1820), pp 107–108. It was under and by virtue
of the prerogative that this was done, by and with the advice of the
executive. This is something that, as Roy Jordan says in his
Research Note, is done without parliamentary scrutiny. In other words,
d the additional step of parliamentary scrutiny was not required for
its validity.
[31] A striking feature of this arrangement, indeed, is that the
Cabinet did not seek the authority of the legislature. In Re Lord Bishop of
Natal (1864) 3 Moore PC (NS) 115 at 148–150, the Lord Chancellor
e referred to examples of cases where the appointments of bishops by
Letters Patent in various colonies were confirmed by Acts passed by the
legislature. The fact that the Cabinet did not think that this was
necessary for the establishment of the order is not, of course, conclusive.
But it is an indication that the act which was being performed was not
f something which had the character of what would ordinarily be called
an enactment. This understanding of its nature can be supported by an
examination of the Constitution for the order in the schedule to the
Letters Patent. It was, of course, within the powers of Her Majesty to lay
down the rules according to which the order which she was creating was
g to operate, and it was desirable that she should do so for the guidance of
the Governor General. In that very restricted and unusual sense it was a
kind of law-making. But there is nothing here to indicate that the award
of any of the honours that were being created was to carry with it any
kind of status or coercive authority, such as that given to the bishops
h referred to in Re Lord Bishop of Natal, that required the force of
legislation to support it.
[32] Taking all these considerations into account, their Lordships are
of the opinion that, while the issue of the Letters Patent may perhaps be
described as an act of law-making because it was designed to set up a
i
system for the order, it was not an enactment of the kind described in
s 18 of the 1976 Act. It was not something that was done under or by
virtue of the Constitution. Authority to create the order lay with Her
Majesty in the exercise of the prerogative. That being so, the order’s
creation is not exempt from scrutiny as to whether it was incompatible
with the equality provisions in the 1962 Constitution before it can be
treated as an existing law as defined by s 6(3) of the 1976 Constitution. a

For this purpose the word ‘law’ has the wide meaning given to it by
s 3(1). It ‘includes’, as the definition puts it, ‘any enactment, and any Act
or statutory instrument’. It also includes anything else that has the force
of law, of which the common law is the most obvious example.
b
THE 1962 CONSTITUTION
[33] Their Lordships consider that it is open to the Board to examine
the question whether, assuming that it was ‘law’ within the meaning of
s 3(1) of the 1976 Constitution, the issue of the Letters Patent was
incompatible with the equality provisions in the 1962 Constitution.
c
They appreciate, of course, that there are limits to the extent to which it
is open to a party to rely on arguments that were not deployed in the
lower courts. The overriding consideration is that of fairness. In this case
however the facts were explored by the trial judge in great detail in his
long and careful judgment. The history of the development of the
colony since its ‘discovery’ in 1498, and its need for labour for the d
plantations when slavery was abolished, is fully set out. He records the
arrival of the first East Indian ship, The Fatel Razack, in May 1845 and
the growth of the number of Indian immigrants that followed that event.
By 1871 East Indians made up 25 per cent of the population. By 1970
they made up 40 per cent, the majority of whom where either Hindu or e
Muslim. He also traces the slow progress that was made towards
recognition that Trinidad and Tobago had become a multi-cultural and
multi-religious society, not an exclusively Christian one.
[34] Furthermore, the judge’s conclusion that, given the experiences
and religious beliefs of Hindus and Muslims, the Trinity Cross amounted f
to indirect discrimination against them was not confined to the situation
at the date of his judgment. He states repeatedly that this was so from the
date of its creation. At p 76 of the judgment he finds that its creation
came at a time after Independence when Trinidad and Tobago was
already an established multi-religious society with a written Constitution g
in place (the 1962 Constitution) guaranteeing the same fundamental
rights and freedoms as those under consideration through the perspective
of the 1976 Constitution under which the declarations were being
sought. Had it not been for the saving of existing laws, he would have
given serious consideration to the mandate to grant relief under s 14(2) h
of the 1976 Constitution to enforce, secure and protect the appellants’
rights and freedoms which, as he put it, ‘have been abridged by the
creation and continued existence of the award of the Trinity Cross’.
[35] The judge was not asked to consider whether the issue of the
Letters Patent infringed the appellants’ rights and freedoms under the i
1962 Constitution. If the appellants’ argument that this was simply an
executive act and not law at all was sound an examination of that
question would, of course, have been unnecessary. What they failed to
do was to appreciate that, if they were wrong about this, and it was ‘law’
within the meaning of s 3(1) of the 1976 Constitution, the question as
TPC SDMS v A-G 469
a to the validity of this act under the 1962 Constitution was still open to
argument unless it must be taken to have been validated by s 18 of the
1976 Act. The existing law clause in the 1976 Constitution could not
save a law, if that was what this was, which was invalid under the 1962
Constitution. This is not, however, something that their Lordships can
b disregard as they contemplate the situation that the judge’s findings of
fact have revealed.
[36] By s 2 of that Constitution it was provided that ‘no law’ shall
abrogate, abridge or infringe or authorise the abrogation, abridgment or
infringement of any of the rights or freedoms recognised and declared in
c s 1. The effect of that provision is that a law which was at variance with
the 1962 Constitution was incapable of being saved as an existing law
under the 1976 Constitution unless it was contained in an enactment
within the meaning of s 18 of the 1976 Act. ‘Existing law’ is defined in
s 6(3) of the 1976 Constitution as ‘a law that had effect as part of the law
d of Trinidad and Tobago immediately before the commencement of this
Constitution’. That definition cannot extend to a law within the
meaning of s 3(1) which post-dated the commencement of the
1962 Constitution, was at variance with it at the time when it was made
and is not validated by s 18 of the 1976 Act.
e [37] The days are long past when a King could declare, as
King James VI of Scotland did in 1598 in his pamphlet entitled ‘The
Trew Law of Free Monarchies or The Reciprok and mutual duetie
betwixt a free King and his natural Subjects’: ‘The King is above the law,
as both the author and giver of strength thereto’ (see JP Somerville (ed)
f King James VI and I, Political Writings (1994), p 159). In 1603 King James
had also become King James I of England, and he carried with him his
belief in an absolute monarchy. But in 1611 it was resolved by the two
Chief Justices, upon conference with the Lords of the Privy Council,
that the King had no prerogative but that which the law of the land
g allowed him: Proclamations’ Case (1611) 12 Co Rep 74 at 75. It is now
well established that the courts have jurisdiction under the common law
to inquire into the existence or extent of any alleged prerogative: Council
of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935
at 942; 8(2) Halsbury’s Laws (4th edn reissue) para 368. In R (on the
application of Bancoult) v Secretary of State for Foreign and Commonwealth
h
Affairs [2008] UKHL 61 at [35], [2008] 4 All ER 1055 at [35], [2009]
AC 453, Lord Hoffmann said, with the agreement of all the other
members of the Appellate Committee, that he could see no reason why
prerogative legislation should not be subject to judicial review on
ordinary principles of legality, rationality and procedural impropriety in
i the same way as any other executive action.
[38] Mr Dingemans said that s 56(1) of the 1962 Constitution left it
open to the Queen, within very narrow limits, to legislate by means of
the royal prerogative. Their Lordships do not accept that the word
‘legislate’ is a correct description of what this was. The Letters Patent do
not have the general coercive force which is characteristic of an a

enactment. On the other hand, the meaning that s 3(1) of the 1976
Constitution gives to the word ‘law’ is, as has already been observed, a
wide one. It does not attempt a precise definition, so the word is left to
embrace anything that is within the ordinary meaning of ‘law’.
Professor HLA Hart The Concept of Law (1961), p 3 said that the b
question what this word means has given rise to a prolonged and
somewhat sterile controversy. But in its simplest form it may be said to
consist of a series of rules which forbid or enjoin certain types of
behaviour under penalty, rules requiring people to compensate those
whom they injure in various ways, and rules which specify what must be c
done to make wills, contracts or other arrangements which confer rights
and create obligations. These rules exist in a legal system which has
courts to determine what the rules are and give effect to them, and a
legislature which enacts laws to create new rules and abolish old ones.
That Her Majesty had power to create the Order of Trinity in the d
exercise of the prerogative is beyond question. As for whether this was
‘law’, the Letters Patent did not just create the order. They laid down
rules which were to have continuing effect for its administration. This
suggests that this was something more than an executive decision. The
rules by which a private club or society regulates itself are not ‘law’ in e
the usual sense of that expression. But there was a public aspect to the
creation of the order which indicates that rules of that kind do not
provide a precise analogy.
[39] Even if this was law making, one of the limits to any power to
make law was set by the declaration in s 2(1) of the Constitution that no
law was to authorise the abrogation, abridgement or infringement of any f
of the rights and freedoms declared in s 1. Full effect must be given to
that declaration, and it applies as much to the use of the prerogative to
create rules for the administration of a national awards system as it does
to an enactment by the legislature. This means that it was not open to
the monarch, whether by the issue of Letters Patent in the exercise of g
the royal prerogative or otherwise, to act in a manner that was
incompatible with the existence of the right to equality, the right to
equality of treatment from any public authority and the right to freedom
of conscience and religious belief. The effect of s 2(1) of the 1962
Constitution was that the principle that was described in Maharaj v A-G h
of Trinidad and Tobago (No 2) (1978) 30 WIR 310 at 317–318, [1978]
2 All ER 670 at 677 applied to the issue of Letters Patent, irrespective of
the description that is given to this act.
CONCLUSION
i
[40] The findings by the trial judge were directed to the rights and
freedoms described in s 4(b), (d) and (h) of the 1976 Constitution. But
they show just as clearly that the institution of the award of the Trinity
Cross as the nation’s highest honour was an infringement of the
enjoyment of the rights described in s 1(b), (d) and (h) of the 1962
TPC SDMS v A-G 471
a Constitution from the date of its creation. The issue of the Letters Patent
is not exempt from scrutiny as this was not an ‘enactment’ within the
meaning of s 18 of the 1976 Act. It was not an enactment in the wider
sense either. It is not necessary to reach a concluded view as to whether
this was an executive decision or was ‘law’ within the meaning of s 3(1)
b of the 1976 Constitution because it was, as Hamel-Smith JA put it at
p 10 of his judgment, an ancient form of law-making under
the prerogative. Either way, it was an infringement of the rights and
freedoms of members of the Hindu and Muslim communities in
Trinidad and Tobago and it was unconstitutional. For this reason,
c notwithstanding the listing in the annex to the 1976 Constitution in the
Laws of Trinidad and Tobago (LRO 1/2006), it is not entitled to the
protection that s 6(1)(a) of that Constitution gives to an existing law.
[41] For these reasons the appellants are entitled to a declaration that
creation of the Trinity Cross of the Order of Trinity established by the
d Letters Patent given on 26 August 1969 breached their right to equality
under s 4(b), their right to equality of treatment under s 4(d) and their
right to freedom of conscience and belief under s 4(h) of the
1976 Constitution. Their Lordships will allow the appeal and make a
declaration to that effect.
e [42] But their Lordships cannot overlook the fact that it was not
until November 2004 when these proceedings were brought that the
appellants made any legal challenge to the constitutionality of this award.
It was not until the hearing of this appeal by the Board that it was
suggested that its constitutionality should be determined under the
f 1962 Constitution as at the date of its creation. The retrospective effect
that normally attaches itself to a judicial declaration of the kind sought in
this case is undesirable in these circumstances. So nothing in this
judgment should be taken to apply to any awards of this high honour
that were made under the system that the Letters Patent established
g
before the date of the Board’s judgment. For the avoidance of doubt
their Lordships will make a declaration to that effect also.
LORD MANCE.
[43] Although I have had some doubt about the concept of an
‘enactment’ under s 18 of the Constitution of the Republic of Trinidad
h and Tobago Act 1976, I am on consideration content that this appeal
should succeed by the route indicated in the judgment of the Board
prepared by Lord Hope of Craighead.
[44] In my opinion, the appeal is also able to succeed by a shorter
route, which is that the Letters Patent involved an executive act, capable
i of being declared unconstitutional in so far as it breached the applicants’
rights under s 4 of the Constitution of the Republic of Trinidad and
Tobago 1976.
[45] Nothing in the 1962 or 1976 Constitutions removes from the
executive, in the form of Her Majesty until 1976 and the President
thereafter, any non-legislative prerogative power which the Crown had a

before 1962. The creation of the Order of Trinity falls in my view into
this category. True, the creation and conferring of honours may in some
contexts give rise to rights and duties. Some ancient United Kingdom
statutes deal with precedence and the United Kingdom Army and Air
Force Acts regulate the wearing of certain medals. Questions arising of b
about precedence, descent, the right to bear a coat of arms and ‘other
kindred matters of honour’ are technically within the jurisdiction in
England of the Court of Chivalry (held still to exist, after 200 years
desuetude, in Manchester Corp v Manchester Palace of Varieties Ltd [1955]
1 All ER 387, [1955] P 133) and in Scotland the Court of the c
Lord Lyon has a jurisdiction over the use of arms backed by
criminal sanctions.
[46] The Board was not referred to any equivalent legal
consequences of the Order of Trinity in Trinidad and Tobago (or any
equivalent jurisdiction capable of giving effect to them there). The d
establishment of such an order, with the grant of the entitlement to the
holder to ‘(a) have the letters “T.C.” placed after his name on all
occasions when the use of such letters is customary; and (b) wear as a
decoration the insignia prescribed by the President for recipients of the
Trinity Cross’, appears, of itself and in the absence of any apparent e
statutory under-pinning, to involve no legal rights or duties. The shame
of exposure is probably as good as any other method of deterring and
punishing those who assert unjustified honours or achievements of
whatever nature.
[47] The description, in the Australian publications to which the f
Board refers, of Letters Patent including procedures for granting honours
and awards as ‘legislation’ does not to carry matters far, when the same
publications appear to treat all Letters Patent as ‘an ancient form of law
making’, yet cite, as authority for their issue, s 61 of the Australian
Constitution, which is the section preserving the executive power of the g
Crown (and parallels in this respect s 56(1) of the 1962 Constitution and
s 74(1) of the 1976 Constitution).
[48] By way of footnote, I find it difficult to see how the Crown
could in 1969 have retained any relevant prerogative legislative power to
issue Letters Patent. Once the Crown exercises its prerogative power to h
grant a Constitution to one of its territories, then, unless the
Constitution becomes for some reasons inoperable, the Crown no longer
has the prerogative power to legislate which it had previously in respect
of such territory: Campbell v Hall (1774) 1 Cowp 204. Depending on
the terms of the grant, it may retain the ‘constituent’ power to replace or
amend the Constitution, but that is a different and presently i
immaterial matter.
[49] In the case of Trinidad and Tobago, the Constitution introduced
in 1962 by the Trinidad and Tobago (Constitution) Act 1962 was in the
conventional ‘Westminster’ style, with detailed provisions establishing a
TPC SDMS v A-G 473
a separation of the powers of Parliament (Ch V), the executive (Ch V) and
the judicature (Ch VI). Under Ch V the executive authority of the
territory was ‘vested in Her Majesty’, while under Ch III the Governor
General appointed by Her Majesty was to be Her representative in
the territory.
b [50] If the Letters Patent involved law-making, they cannot I think
have been an exercise of the ‘executive authority’ vested in Her Majesty
by Ch V, s 56(1), of the 1962 Constitution. Second, where it was
intended to preserve a royal prerogative having legal consequences, that
was expressly provided in the 1962 Constitution: see Ch V, ss 70–72,
c providing for the continuing prerogative powers of pardon and mercy,
etc. Section 69 also gave the Governor General power to constitute
offices for the territory, and to make and terminate appointments to
them. On the face of it, the 1962 Constitution is inconsistent with the
continuation of any other prerogative power to make anything that could
d be described as law.
[51] However, I do not think that this footnote needs pursuing.
I agree that this appeal should succeed, and also that any declaration of
unconstitutionality should be prospective only in effect for the reasons
given in [41], above, of the Board’s judgment.
e Appeal allowed. Declaration of invalidity granted with prospective effect.

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378 West Indian Reports 76 WIR

Sanatan Dharma Maha Sabha

of Trinidad and Tobago Inc and others v b

Attorney General of Trinidad and Tobago

HIGH COURT OF TRINIDAD AND TOBAGO

Trinidad and Tobago attained independence in 1962 and became a

for inconsistency with the s 4 rights and freedoms under the a

a Cases referred to in judgments

Smith v LJ Williams (1982) 32 WIR 395, Trinidad and Tobago HC a

26 May 2006. The following judgment was delivered.

a Her Majesty’s pleasure and was Her Majesty’s representative in Trinidad

are unfairly and discriminately encumbered in their capacity to nominate a

STRUCTURE OF THE JUDGMENT

• ‘Discovery’ and colonisation.

2. The Trinity Cross ([pp 395–416, below]).

3. Entitlement to relief, 1976 Constitution ([pp 416–419, below]).

4. The equality provisions, s 4(b) and 4(d), 1976 Constitution

a 5. Religious belief and observance, s 4(h), 1976 Constitution

• The American position.

6. Synthesis/application ([pp 439–442, below]).

d ‘And at the end of 17 days, during which the Lord granted me

The respected and reputable historians Michael Anthony, Gerard

‘Your Highness ought not to consent that any foreigner do a

This religious exclusivity was not limited to would be settlers but

‘Article 1st. All foreigners, the subjects of powers and nations in

‘in no other case suffer any man to be molested or disquieted in

a here practiced by us in England, and the recommending it to all

‘To many the East Indian was an unwelcome intruder and

Indians reciprocated by not participating fully in the society. a

‘The overriding concern of John Morton was:

a (iii) “[T]hat these (Hindus and Muslims) be saved from

It is indisputable that the generally prevailing attitude of the governing

e Ironically, this preferential/discriminatory attitude by the governing

‘The worst victims of colonialism in this respect (education)

And, the Keenan Report of 1869 records in relation to the East

‘Their moral and intellectual necessities were overlooked. a

Education was used by the Canadian Mission as a vehicle for

(i) ‘They (Hindus and Muslims) often opposed the missionaries’

Professor Samaroo makes a similar observation in ‘The Presbyterian

a ‘The Canadian Mission to the East Indians … possibly believing

preferential towards Christian marriages and children born out of same a

And, the following public holidays in recognition of Emancipation,

(ii) Emancipation Day—Order made on 15 October 1984. g

Once again the partiality towards Christian beliefs and observances as h

a beliefs (values) and observances. It cannot be over emphasised in this

a ‘It was therefore decided that the matter should be pursued on a

(i) The creation of a Standing National Awards Committee.

distinguished service’, or (b) made ‘very valuable a

(a) CIVIL AWARDS: e

a To members of the Public Service, Statutory Boards and

The recommendations of the Committee in its second report were for

The recommendations in the second report of the Committee were

‘A gold medal with dimensions 52 millimetres long by a

Trinidad, as a former colony of Britain and member of the a

‘When worn in Trinidad and Tobago by a citizen of Trinidad and

Thus, though it is clear from the Constitution of the Order of the

a recognised as a Saint among Christians. The banner of St George

In my opinion, the local conditions in Trinidad and Tobago, both a

a Religion is not an entirely intellectual affair. Religion is also about

can aspire evades their very presence by acknowledging the a

a priests—Arius. This dispute concerned the nature of the Trinity.

God (Allah)’. Islam stresses that Allah is self-subsisting and sufficient a

Orthodox Muslims therefore believe that the concept of the Holy f