Roodal v. The State (Trinidad and Tobago)  UKPC 78 (20 November 2003)
Privy Council Appeal No. 18 of 2003
Balkissoon Roodal Appellant
The State Respondent
THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 20th November 2003
Present at the hearing:-
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
[Majority judgment delivered by Lord Steyn]
- In Trinidad and Tobago judges have assumed that there is a fixed penalty for murder, namely death. Last year this assumption was tested in the Court of Appeal: the Court ruled that under the law of Trinidad and Tobago the penalty for murder is a mandatory sentence of death. Now the issue before the Privy Council is whether the penalty for murder is a mandatory or discretionary death sentence. It raises profoundly important questions about the application of the death penalty in Trinidad and Tobago and the working of the Constitution.
I. The Proceedings Below.
- On 15 July 1999 at the San Fernando Assizes a jury convicted the appellant of murder. Section 4 of the Offences Against The Person Act 1925 provides that "Every person convicted of murder shall suffer death as a felon". The judge imposed what he regarded as a mandatory sentence of death. On 7 April 2000 the Court of Appeal of the Republic of Trinidad and Tobago dismissed the appellant's appeal against conviction. On 2 November 2000 the Privy Council dismissed a petition by the appellant for special leave to appeal against his conviction. On 12 November 2001 the Privy Council granted leave to appeal against the sentence of death and remitted the matter to the Court of Appeal to reconsider the matter of sentence. On 17 July 2002 M A de la Bastide CJ delivered the judgment of the Court of Appeal which dismissed the appellant's appeal against sentence and affirmed the mandatory sentence of death imposed on him.
II. The Issues.
- There were three principal issues before the Court of Appeal namely
(a) whether construed in the light of section 68 of the Interpretation Act 1962 section 4 of the 1925 Act prescribes a maximum and not the only penalty;
(b) alternatively, whether section 4 requires modification so as to provide for a discretionary death sentence in order to bring it into conformity with the 1976 Constitution of Trinidad and Tobago;
(c) in the further alternative, whether the imposition of a mandatory death sentence violates the constitutional principle of separation of powers.
The Court of Appeal rejected the contentions of the appellant on each of the issues. The Privy Council must now examine a challenge to the decision of the Court of Appeal. Before that can be done it is necessary to describe the matrix of the problem.
III. The Exorbitant Reach of the Death Penalty for Murder.
- In Trinidad and Tobago the crime of murder is based on the English common law. Murder covers an extraordinarily wide spectrum of cases of homicide, most of which would not be regarded as murder in ordinary parlance. In R v Powell (Anthony)  1 AC 1, this point was explained (at 14H-15E):
"In English law a defendant may be convicted of murder who is in no ordinary sense a murderer. It is sufficient if it is established that the defendant had an intent to cause really serious bodily injury. This rule turns murder into a constructive crime. The fault element does not correspond to the conduct leading to the charge, i.e. the causing of death. A person is liable to conviction for a more serious crime than he foresaw or contemplated: see Williams, Textbook of Criminal Law, 2nd ed. (1983), pp. 250-251; Ashworth, Principles of Criminal Law, 2nd ed. (1995), pp 85, 261; Card, Cross & Jones, Criminal Law, 12th ed. (1992), pp 203-204. This is a point of considerable importance. The Home Office records show that in the last three years for which statistics are available mandatory life sentences for murder were imposed in 192 cases in 1994; in 214 cases in 1995; and in 257 cases in 1996. Lord Windlesham, writing with great Home Office experience, has said that a minority of defendants convicted of murder have been convicted on the basis that they had an intent to kill: 'Responses to Crime', vol. 3 (1996), at 342, n. 29. That assessment does not surprise me. What is the justification for this position? There is an argument that, given the unpredictability whether a serious injury will result in death, an offender who intended to cause serious bodily injury cannot complain of a conviction of murder in the event of a death. But this argument is outweighed by the practical consideration that immediately below murder there is the crime of manslaughter for which the court may impose a discretionary life sentence or a very long period of imprisonment. Accepting the need for a mandatory life sentence for murder, the problem is one of classification. The present definition of the mental element of murder results in defendants being classified as murderers who are not in truth murderers. ... It results in the imposition of mandatory life sentences when neither justice nor the needs of society require the classification of the case as murder and the imposition of a mandatory life sentence."
These observations apply with far greater force in Trinidad and Tobago where it is also sufficient to establish murder to prove an intent to cause serious bodily harm and where at present the view is that all who fall within the class of convicted murders must be sentenced to death.
- The Report of the Royal Commission on Capital Punishment (1949-1953) (Cmd 8932) at para 21 states that "there is perhaps no single class of offences that varies so widely both in character and in culpability as the class comprising those which may fall within the comprehensive common law definition of murder". The Royal Commission illustrated this point with many examples which need not be set out. For present purposes it is sufficient to say that at one end of the range of cases may be the serial killing of young children and at the other end an assault which went wrong and unexpectedly resulted in the death of another.
- The Royal Commission further observed (para 22) that no one would now dispute that for many of these crimes "it would be monstrous to inflict the death penalty". The same applies to the current practice in Trinidad and Tobago. It appears from the statistics provided by the Royal Commission that in England in the first half of the 20th Century 45 per cent of persons sentenced to death were reprieved, and of those twice as many served terms under five years (in some cases less than one year) as served terms over 15 years. In Trinidad and Tobago for the period 1961-1988 in 29 out of the 51 cases, which were referred to the Advisory Committee on the Power of Pardon, executions were carried out: The Prescott Commission's Report on the Death Penalty in Trinidad and Tobago (1990), Appendix 3. In the other cases the prisoners were mostly released within 15 years. In three cases the prisoners were released within 5 to 6 years. This further illustrates how unjust it is to impose on all persons convicted of murder a mandatory death sentence.
- This view is reinforced by the judgment of 21 June 2002 of the Inter-American Court of Human Rights in Hilaire, Constantine and Benjamin Et Al v Trinidad and Tobago. The Court observed about section 4 (at paras 104-106):
"The Court finds that the Offences Against the Person Act has two principal aspects: a) in the determination of criminal responsibility, it only authorizes the competent judicial authority to find a person guilty of murder solely based on the categorization of the crime, without taking into account the personal conditions of the defendant or the individual circumstances of the crime; and b) in the determination of punishment, it mechanically and generically imposes the death penalty for all persons found guilty of murder and prevents the modification of the punishment through a process of judicial review.
The Court concurs with the view that to consider all persons responsible for murder as deserving of the death penalty, 'treats all persons convicted of a designated offence not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the death penalty'. [The citation is from Woodson v North Carolina (1976) 428 US 280, 304; 49 L Ed. 2d 944, 961.]
In countries where the death penalty still exists, one of the ways in which the deprivation of life can be arbitrary under Article 4(1) of the Convention is when it is used, as is the case in Trinidad and Tobago due to the Offences Against the Person Act, to punish crimes that do not exhibit characteristics of utmost seriousness, in other words, when the application of this punishment is contrary to the provisions of Article 4(2) of the American Convention."
A mandatory sentence of death is contrary to the Inter-American Convention on Human Rights: Schabas, The Abolition of the Death Penalty in International Law, 3rd ed., 2002, at 111.
IV. The Approach to the Issues.
- The first issue focuses on the Interpretation Act and the second on the Constitution. The Court of Appeal approached these two issues as if they must legally be put in separate boxes. That is not entirely right. The Constitution, statute law and common law coalesce in one legal system. The Constitution has a direct effect on statute law and common law as well as an indirect radiating influence on both. It is therefore ultimately not possible to consider the Interpretation Act divorced from the constitutional dimension. Subject to this important qualification, it is possible to start with a preliminary examination of the first issue.
V. Issue (a): The Application of the Interpretation Act.
- Section 64 of the Interpretation Act 1962 provides:
"Where a written law provides (in whatever terms) that a person is liable to a penalty if he commits a specified act, that act shall be deemed to have been constituted an offence by such written law."
Section 68 of the Interpretation Act provides:
"(1) Where a punishment is provided by a written law for an offence against the written law, the provision indicates that the offence is punishable by a punishment not exceeding that provided.
(2) Where in any Act or statutory instrument provision is made for any minimum penalty or fine, or for any fixed penalty or fine, as a punishment for a criminal offence, such Act or statutory instrument shall have effect as though no such minimum penalty or fine had been provided, or as though the fixed penalty or fine was the maximum penalty or fine, as the case may be."
The question is what the impact of the provisions of the Interpretation Act is on section 4 of the 1925 Act.
- Counsel for the appellant submits that by reason of section 64 of the Interpretation Act murder is constituted an offence by written law. On that supposition section 68 of the Interpretation Act comes into operation and has the effect that the fixed penalty under section 4 becomes a maximum penalty. Hence the sentence for murder is discretionary.
- The Court of Appeal dismissed this submission for three reasons. First, the Court of Appeal held that murder is not an offence against written law within the meaning of section 68. The Court of Appeal did not, however, consider how this view is reconcilable with section 64 of the Interpretation Act. The Court of Appeal was mistaken on this point. This view has now been abandoned by the respondent.
- Secondly, in considering the scope of section 68 of the Interpretation Act, the Court of Appeal held that "any reduction should be in the same currency, so to speak, as that in which the fixed penalty or fine is expressed". This view is not correct. For example, reduction of a disqualification to a fine is not in the same currency. And the section permits the substitution of a fine for a term of imprisonment. In any event, this restrictive interpretation is not supported by anything in the language of the statute. It is not inherent in the language nor is necessarily to be implied. It is also inappropriate in the context of remedial legislation. The second reason of the Court of Appeal for dismissing the argument based on the Interpretation Act is flawed.
- Thirdly, the Court of Appeal observed:
"It is incredible that in 1941 in the midst of the Second World War the Legislative Council of Trinidad and Tobago which was effectively controlled by a colonial Governor, would have intended when it enacted the Minimum Penalties and Fines (Removal) Ordinance, to make such a fundamental change in the law as to abolish the mandatory death penalty, more so as it still remained at that time part of the law of England. It is a basic principle of statutory construction that long standing rules, whether statutory or common law, are not to be overturned by a side wind."
This statement must be read with the conclusion of the Chief Justice that
"... it was not the intention of the legislature, either when the Legislative Council enacted the 1941 Ordinance or when the pre-Independence Parliament replaced it in 1962, to change the long standing and fundamental rule of both statute and common law that every person convicted of murder should be sentenced to death."
The view that it was inconceivable that in colonial times a mandatory death sentence would be turned into a discretionary one is too simplistic: such changes were made in India, Pakistan, South Africa and Southern Rhodesia: see Report of the Royal Commission, paras 73-76. In any event, the question arises whether interaction between section 4 of the 1925 Act and the Interpretation Act must be approached as always speaking legislation to be construed in the world of today. This principle of construction was explained by the House of Lords in R v Ireland  AC 147. How is it to be determined whether legislation is an always speaking or tied to the circumstances existing when it was passed? In R v Ireland the House of Lords held (at 158):
"In cases where the problem arises it is a matter of interpretation whether a court must search for the historical or original meaning of a statute or whether it is free to apply the current meaning of the statute to present day conditions. Statutes dealing with a particular grievance or problem may sometimes require to be historically interpreted. But the drafting technique of Lord Thring and his successors has brought about the situation that statutes will generally be found to be of the 'always speaking' variety ..."
Section 10(1) of the Interpretation Act 1962 spells out this principle for Trinidad and Tobago by providing that "Every written law shall be construed as always speaking ...".
- Counsel for the respondent was not prepared to accept that this principle is applicable in the present case. But he was not able to point to specific features of the legislation which exclude the principle. Given that in R v Ireland the principle was applied to a Victorian criminal statute, it is difficult to see why it should not be equally applicable in the present context. The Court of Appeal may have erred in searching for an original intent. The better view may be that the legislation "should be interpreted in the light of its place within the system of legal norms currently in force": Sir Rupert Cross, Statutory Interpretation, 3rd ed., (1995), p 52. What this entails in regard to Trinidad and Tobago will be discussed in the next section of this judgment.
- There is, however, another idea implicit in the reasoning of the Court of Appeal, namely that the legislature would not have abolished the mandatory death sentence by "a side wind". On examination this is an argument that Parliament could not in fact have intended to change the regime from a mandatory to a discretionary death sentence. Again, however, this approach is not necessarily right. In Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg A G  AC 591, Lord Reid observed (at 613G):
"We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said."
This statement has been repeated on many occasions in the House of Lords and the Privy Council. The question may therefore simply be whether, in the context of the contemporary legal system of Trinidad and Tobago, the statutory language can fairly be said to permit the reduction of the fixed penalty of a mandatory death sentence to a discretionary one.
- That leads to the general question of the construction of section 68. The Chief Justice observed that "approached purely as a matter of semantics, the death 'penalty' would prima facie seem to qualify as a 'fixed penalty'". Counsel for the respondent took the same position. Prima facie the text of the statute supports the view that it is a fixed penalty. On the other hand, even if due allowance is made for the always speaking canon of construction, there is an argument that one would not expect the Interpretation Act to be used to effect a fundamental change in respect of the mandatory death sentence.
- It is permissible to conclude that there are respectable arguments supporting the view that under section 68 the death penalty is the maximum penalty, the sentence being in the discretion of the trial judge. It is, however, necessary to defer a decision on this point until the constitutional dimension together with the applicable norms of today have been explored.
VI. Issue (b): Constitutional Modification.
- An Order in Council of 1961 contained a Constitution of Trinidad and Tobago. It was replaced by a new Constitution as part of the Trinidad and Tobago (Constitution) Order in Council 1962. The 1962 Constitution contained in sections 1 and 2 a bill of rights. In section 2 there was a guarantee against the imposition of cruel and unusual treatment or punishment. Section 3 provided:
"Sections 1 and 2 of this Constitution shall not apply in relation to any law that is in force in Trinidad and Tobago at the commencement of this Constitution."
Section 4(1) of the Order provided:
"Subject to the provisions of this section, the operation of the existing laws after the commencement of this Order shall not be affected by the revocation of the existing Order but the existing laws shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Order."
"Existing laws" mean legislation "having effect as part of the law of the Colony of Trinidad and Tobago immediately before the commencement of this Order": section 4(5) of the Order.
- In 1976 the Constitution of the Republic of Trinidad and Tobago Act was enacted. The Constitution was a schedule to the Act. Section 2 of the Constitution provides:
"This Constitution is the supreme law of Trinidad and Tobago, and any other law that is inconsistent with this Constitution is void to the extent of the inconsistency."
It came into force on 27 July 1976.
- The bill of rights under the 1976 Constitution was cast in absolute terms. There are undoubtedly implied limitations on these guarantees. One such limitation may derive from section 53 of the Constitution which vests in Parliament the power to make laws for the peace order and good government of Trinidad and Tobago: see Demerieux, Fundamental Rights in Commonwealth Caribbean Constitutions, 1992, at 87-89. Section 13 which contains the requirement that legislation inconsistent with the bill of rights must be "justifiable in a society that has a proper respect for the rights and freedoms of the individual" and be passed by a three fifths majority, is also relevant. This point is, however, not material to the problem presently before the Privy Council.
- Section 4 of the Constitution provides:
"It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist without discrimination by reason of race, origin, colour, religions or sex, the following fundamental human rights and freedoms, namely:-
(a) the right of the individual to life ... and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law ...;"
Section 5 of the Constitution provides:
"(1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognised and declared.
(2) Without prejudice to subsection (1), but subject to this Chapter and to section 54, Parliament may not
(b) impose or authorise the imposition of cruel and unusual treatment or punishment."
The first question before the Court of Appeal was whether a mandatory death sentence is a cruel and unusual punishment within the meaning of section 5(2)(b). Following the decision of the Privy Council in Reyes v The Queen  2 AC 235 the Court of Appeal held that the mandatory sentence of death is a cruel and unusual punishment. The correctness of this ruling is not disputed. In these circumstances it is unnecessary to consider whether section 4 of the 1925 Act is in conformity with the right to life guarantee under section 4(a) of the Constitution. The fact that it is conceded by the state that the mandatory sentence of death in Trinidad and Tobago is a cruel and unusual punishment under the 1976 Constitution must not be allowed to obscure the fact that the condemnation of this punishment is the framework within which the issues on this appeal must now be considered.
- It is now necessary to turn to the provisions in the Act and in the Constitution which govern the position of existing laws. Such provisions are to be found in a number of Caribbean Constitutions, and there are decided cases in various contexts on such provisions. Generalising about the effect of such provisions in different contexts is to be avoided. An intense focus on the particular provisions applicable in Trinidad and Tobago, in the context of the specific problem before the Privy Council, is necessary. Section 5(1) of the 1976 Constitution Act, provides:
"Subject to the provisions of this section, the operation of the existing law on and after the appointed day shall not be affected by the revocation of the Order in Council of 1962 but the existing laws shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Act."
Section 6 of the Constitution provides:
"(1) Nothing in sections 4 and 5 shall invalidate
(a) An existing law;
(3) In this section
'Existing law' means a law that had effect as part of the law of Trinidad and Tobago immediately before the commencement of this Constitution, and includes any enactment referred to in subsection (1);"
The question is whether the power to make modifications under section 5(1) of the Act is wide enough to cover what appears to be a mandatory sentence of death under section 4 of the 1925 Act so far as such a mechanical rule is not in conformity with the Constitution.
- The Court of Appeal directly addressed this issue. The Chief Justice concluded:
"We hold that the power to construe with modifications under section 5(1) of the Act is wide enough to enable a court to remove or correct virtually any inconsistency with the Constitution that may be found in an enactment. The Privy Council has in Reyes ( 2 AC 235); Hughes ( 2 AC 284); and Fox ( 2 AC 259) sanctioned its use for the purpose of removing the mandatory death penalty by amending the laws which prescribed it. We have no doubt that it could be used for that purpose in Trinidad and Tobago. It would take no more than the same amendment of section 4 of the Offences Against the Person Act as was made to the corresponding provision in St. Christopher and Nevis in Fox and possibly an amendment of section 68(2) of the Interpretation Act to give the court power to impose a sentence of imprisonment on a person convicted of murder."
[References to decisions on appeal from Belize, St Lucia and St Christopher and Nevis added]
It is common ground that section 5(1) is wide enough to accommodate the modification of section 4 of the 1925 Act by providing for a discretionary death sentence.
- But the Chief Justice concluded that the mandatory death penalty is saved by section 6. The Chief Justice observed:
"The effect of this modification would be to recognise and give effect to the invalidity of the mandatory death penalty. Such a modification is the consequence of partial invalidity rather than an alternative to, or substitute for, it. The mandatory death penalty, however, is saved from invalidity by section 6(1) of the Constitution and so section 5(1) of the Act cannot be pressed into service to remove it. However strictly and narrowly the word 'invalidate' may be construed, we do not consider that it can with any semblance of rationality, be understood to mean render invalid pursuant to section 2, if, but only if, the cause of the invalidity cannot be removed by modification under section 5(1) of the Act. Such an interpretation would strip existing laws of virtually all the protection which they were afforded under the special savings clause in the 1962 Constitution. We do not accept that that was what Parliament intended by the language of the special savings clause in the Constitution." [Emphasis added]
It will be noted that the Chief Justice invoked the position under the 1962 Constitution. The question is whether the Chief Justice construed section 6 correctly.
- The Chief Justice assumed that the extent of the power of modification under the 1962 and 1976 Constitutions remained the same. A comparison between the powers of modification under section 4 of the 1962 Order and under section 5(1) of the 1976 Constitution Act can be made. But equating section 3 of the 1962 Constitution and section 6(1) of the 1976 Constitution is not justified. The former is a straightforward "shut out" provision: see de Freitas v Benny  AC 239, at 244G-H. Modifying section 4 of 1925 Act by providing for a discretionary life sentence is plainly ruled out by section 3 of the 1962 Constitution. The 1976 Act and Constitution adopted a more open textured scheme in respect of existing laws. This change in language from "shall not apply" to "shall not invalidate" could not have been unintended. Otherwise one would have expected a continuance of the "shut out" provision in the 1962 Constitution in respect of existing laws. In 1976 the door was opened to the argument now before the Privy Council.
- In any event, there is another possible interpretation. It is to the effect that the first stage is to determine whether section 4 of the 1925 Act can be modified under section 5 of the 1976 Act, by reading down, reading in, or severance, so as to render the words of the statute in conformity with the Constitution. Section 6 of the Constitution only comes into operation to preclude invalidation of an existing law which has proved irremediable by resort to modification. In that event section 2 renders the provision void unless it is saved in respect of section 4 or 5 non-conformity by section 6. It is true, of course, that there is a potential tension between sections 5 and 6. This interpretation has the merit of giving a generous interpretation to section 5 and at the same time it does not give an extensive interpretation to what Part II describes as the "Exceptions for Existing Law", which include section 6(1). Exceptions contained in constitutional bills of rights are ordinarily to be given a narrow, rather than broad, construction. This approach is justified on orthodox canons of construction.
- While great care must be taken about comparing constitutional provisions cast in different terms, it is permissible to note that such a two stage interpretative process would operate in a broadly similar fashion to the obligation of "reading down" provisions in the bills of rights of Canada, New Zealand, South Africa and the United Kingdom, which must undertaken before incompatibility or sometimes invalidity is considered: see Schachter v Canada  2 SCR 679, at 695-6: Moonen v Film and Literature Board of Review  2 NZLR 9; S v Manamela  3 SA l; 2000(5) BCLR 491; section 3 and 4 of the Human Rights Act 1998. It is a workable and benign technique to give a reasonable measure of protection to fundamental rights in a practical world where there are inevitably tensions between individual rights and good democratic government.
- The suggested interpretation allows the constitutional power to modify in cases of non conformity to play a dynamic but not extravagant role. For example, it would not warrant a challenge to the death sentence as such. On the other hand, the interpretation of the Court of Appeal allows only minimal scope for the operation of section 5 of the 1976 Act. The context of fundamental rights in respect of issues of life and death demands "a generous interpretation" avoiding what has been called 'the austerity of tabulated legalism', suitable to give to individuals the full measure of the fundamental rights and freedoms referred to": Minister of Home Affairs v Fisher  AC 319, at 328. Instead the Court of Appeal has adopted a more technical approach.
- So far as possible the Constitution should also be interpreted so as to conform to the international obligations of Trinidad and Tobago. On 28 May 1991 Trinidad and Tobago ratified the American Convention on Human Rights 1969. It is true that on 26 May 1998 Trinidad and Tobago denounced the Convention. The denunciation took effect on 26 May 1999. But at the time of the murder, namely on 19-20 August 1995, Trinidad and Tobago was a party to the American Convention on Human Rights. It is accepted by the state that the law in force at the time of the commission of the offence is determinative. It is therefore applicable to the present case. Article 4.2 of the Convention provides "that the death sentence may only be imposed for the most serious crimes": Advisory Opinion OC 3/83 of 8 September 1983 by the Inter-American Court of Human Rights: Restrictions to the Death Penalty (Articles 4(2) and 4(4) of the American Convention on Human Rights, para 54. The imposition of a mandatory death sentence is inconsistent with article 4 of the Convention as explained by the Inter-American Court of Human Rights in its judgment in Hilaire discussed in paragraph 7 above. If possible an interpretation consistent with the Convention should be adopted.
- Moreover, Trinidad and Tobago is still a member of the Organization of American States. Initially, the American Declaration of the Rights and Duties of Man (1948) was not viewed as creating legal duties. On the other hand, before Trinidad and Tobago ratified the American Convention on Human Rights in 1991 the organs created by the Convention had commenced to give normative effect to the Declaration: see Resolution No. 3/87, Roach and Pinkerton v United States, by the Inter-American Commission on Human Rights, 22 September 1987; Advisory Opinion by the Inter-American Court of Human Rights, OC 10/89, dated 14 July 1989, given at the request of the Government of Colombia; Oppenheim's International Law 9th ed., 1992, 1027-1029; Schabas, op cit, 315. That was the basis on which Trinidad and Tobago became members of the Organization of American States. Trinidad and Tobago is subject to the petition procedure before the Commission for violations of the American Declaration. The American Declaration is applicable to Trinidad and Tobago: the Inter-American Commission on Human Rights Report No. 48/01 in cases numbers 12.067 (Edwards), 12.068 (Hall), and 12.086 (Schroeter and Bowley) against The Bahamas dated 4 April 2001. The Declaration contains a guarantee in article XXVI against cruel, infamous or unusual punishment. The Commission concluded in their adjudication of 4 April 2001 that a mandatory sentence of death is, amongst others, in breach of article XXVI: paras 137, 138 and 147. The basis of this ruling is that the sentence has "the effect of depriving a person of their rights to life based solely on the category of the crime ... without regard for the offender's personal circumstances or the circumstances of the individual offence". A mandatory sentence of death is inconsistent with the international obligations of Trinidad and Tobago under the Declaration. An interpretation consistent with the international obligations of Trinidad and Tobago is to be preferred.
- For all these reasons the Board concludes that section 4 of the 1925 Act should be interpreted as providing for a discretionary life sentence.
- How is the modification to be effected? That brings one back to the Interpretation Act, construed now in the world of today and in the light of the Constitution as well as domestic and international norms. So interpreted section 68 of the Interpretation Act should be read as providing not for a fixed penalty of death for murder but for a maximum penalty of death. In other words the imposition of the death penalty for murder is discretionary. The obvious alternative to it is imprisonment. No further modification of section 4 of the 1925 statute is required.
VII. Issue (c) Separation of Powers.
- Given the conclusions on issue (a) and (b) it unnecessary to consider the separation of powers argument. The Board expresses no view on this part of the case.
VIII. The Respective Roles of Parliament and the Courts.
- Before leaving this matter it is necessary to refer to the following observation of the Chief Justice:
"We are firmly of the view that if the death penalty is no longer to be mandatory in Trinidad and Tobago, this change must be effected by Parliament. There are some advantages to doing it by legislation rather than by judicial decision. Parliament will be able to determine and prescribe whether the alternative punishment for murder should be imprisonment for life or for a term to be decided by the Judge. It may also provide some guideline as to the factors which the Judge is to take into account in determining whether or not to impose the death penalty. Parliament may also wish to address the question of what role, if any, the jury should play in determining the sentence to be imposed on a convicted murderer. This consideration, however, has played no part in leading us to the conclusion we have reached."
The Constitution is the supreme law of Trinidad and Tobago. The Constitution itself has placed on an independent, neutral and impartial judiciary the duty to construe and apply the Constitution and statutes and to protect guaranteed fundamental rights, where necessary. It is not a responsibility which the courts may shirk or attempt to shift to Parliament. Loyalty to the democratic legal order of the Constitution required the Privy Council to grapple with the question before it and to decide it.
- The Privy Council quashes the mandatory sentence of death imposed on the appellant and remits the matter for the trial judge to decide as a matter of discretion what sentence to impose.
Dissenting judgment delivered by Lord Millett and
Lord Rodger of Earlsferry
- In this critically important appeal we have the misfortune to disagree, respectfully but profoundly, with the opinion of the majority of the Board. To explain our reasons, we examine each of the appellant's four arguments in turn.
Section 68 of the Interpretation Act 1962
- Mr Fitzgerald began by arguing that, by reason of section 68(2) of the Interpretation Act 1962 ("the Interpretation Act"), the mandatory death penalty for murder in section 4 of the Offences against the Person Act 1925 ("the 1925 Act") was to be regarded as a maximum sentence and that the courts had a discretion to impose a lesser sentence of imprisonment.
- We do not spend time in considering whether section 68(1) of the Interpretation Act applies. The Court of Appeal held that it did not, on the ground that murder remains a common law offence (section 3 of the 1925 Act) and is therefore not an "offence against the written law". The majority reject the Court of Appeal's view as being irreconcilable with section 64 of the Interpretation Act. In truth section 64 has nothing to do with a section, such as section 3 of the 1925 Act, which provides that anyone who commits a specified act is deemed to be guilty of murder, manslaughter, buggery or rape, as the case may be all of them offences. Section 64 is concerned, rather, with provisions, such as sections 10 and 25(1) of the 1925 Act, which say that a person who commits a specified act is liable to a penalty (imprisonment) without actually saying that the act in question constitutes an offence. By section 64 that act is deemed to have been constituted an offence by the provision in question.
- What matters, of course, is that section 68(2) of the Interpretation Act applies where provision is made in any Act for any minimum penalty or fine, or for any fixed penalty or fine. As the Court of Appeal acknowledged, if approached purely as a matter of semantics, the death "penalty" in section 4 of the 1925 Act would prima facie seem to qualify as a "fixed penalty" in terms of section 68(2). But they went on to test that semantic argument. The majority criticise their reasoning. We look at the arguments in a slightly different order.
- The Court of Appeal made the point that it was incredible that in 1941 in the midst of the Second World War the Governor and legislative council of the colony of Trinidad and Tobago would have intended, by enacting the Minimum Penalties and Fines (Removal) Ordinance, to make such a fundamental change in the law as to abolish the mandatory death penalty, the more so as it still remained at that time part of the law of England. In part at least, the Court of Appeal were making much the same point as the Board had made a few months before in relation to section 252 of the 1888 Criminal Code of Saint Lucia in R v Hughes  UKPC 12;  2 AC 259, 272fg: bearing in mind that the death sentence was mandatory in the United Kingdom until 1957, their Lordships regarded it as "unthinkable" that it would ever have been the intention in 1888 to make the death penalty discretionary in what was then the colony of Saint Lucia. In so holding they were in substance applying the long-established presumption that Parliament should not be taken to have changed an important legal rule by a sidewind. See, for instance, Bennion, Statutory Interpretation (4th edition, 2002), pp 693694 and Bennett v Chappell  Ch 391. As the Court of Appeal observed, that approach is equally applicable in the present case.
- As supposed grounds for questioning the view of the Court of Appeal about the likely intentions of the Governor and legislative council of a Crown colony in 1941, the majority cite provisions in the legislation of India, Pakistan, South Africa and Southern Rhodesia which were described in Appendix 11, paras 7376 of the Report of the Royal Commission on Capital Punishment (1949-1953) (Cmd 8932). All are irrelevant to that issue.
- When India and Pakistan became independent in 1947, their criminal law continued to be found in the amended version of the Indian Penal Code 1860. The code was first drafted by Macaulay in 1837 and, having been debated for decades, was eventually passed by the legislative council and Governor General in the wake of the Indian Mutiny. Section 302 of that painstakingly considered measure is expressed in unambiguous terms. It is no basis for supposing that the 1941 Trinidad and Tobago Ordinance was intended sub silentio to make the death penalty discretionary or indeed for questioning the construction which the Board recently placed on section 252 of the 1888 Criminal Code of Saint Lucia. So far as South Africa is concerned, the South Africa Act 1909 instituted a Parliament with full power to make laws for the peace, order and good government of the Union. The Union thus became a self-governing Dominion. Section 61(a) of the General Law Amendment Act, No 46 of 1935, amended section 338 of the Criminal Procedure and Evidence Act, No 31 of 1917, so as to make the death penalty discretionary where there were extenuating circumstances. That amending provision, again in unambiguous terms, was passed following a suggestion of the Judges' Conference in 1933 and after full debate in the House of Assembly when General Smuts was the minister of justice. The constitutional position of Southern Rhodesia under the 1923 Constitution was in many respects anomalous: it lay somewhere between a self-governing colony and a Dominion. The important point is, however, that the Criminal Procedure and Evidence Amendment Act, No 52 of 1949, which reproduced the South African legislation exactly, was also an express enactment of the Legislative Assembly which had all the necessary powers in this sphere. Neither the South African nor the Southern Rhodesian provisions cast any light on the likely intentions of the Governor and legislative council of the Crown colony of Trinidad and Tobago in 1941. Nor do they touch the Court of Appeal's reasoning.
- Further support for that reasoning is in any event available. Counsel for the appellant placed before the Board an extract from the speech by the Attorney General to the Governor and legislative council, when he moved the second reading of what became the 1941 Ordinance. From that speech it is obvious that the focus was on minimum and maximum fines. The government thought that it would make for better justice if the fetters of these minima and maxima were removed and the courts were left free to exercise their discretion. Of course, the scope of the Ordinance went beyond fines. But it is utterly unrealistic to suppose that, if the Attorney General had been proposing a reform which would have made the death penalty discretionary in this particular colony, he would have ignored that aspect and would have justified the measure by referring to the problems caused by minimum and maximum fines. Not surprisingly therefore, practitioners and judges continued to regard the death penalty as mandatory in the case of murder. As Mr Fitzgerald acknowledged, that is not a factor which the Board either can or should ignore.
- The legislature has been equally consistent. Section 48 of the Criminal Procedure Act 1925 allows the court to impose a fine in lieu of, or in addition to, any other penalty "where a person is convicted on indictment of any offence other than a capital offence". The qualification in italics presumes that anyone convicted of a capital offence is sentenced to death. The same applies to section 50 which provides for corporal punishment in certain circumstances "if any person is convicted of an arrestable offence, not punishable with death ...". The same also goes for section 72 of the Interpretation Act itself. It gives the court the power to bind over "in the case of a person convicted of an offence other than a capital offence". If there were any question of a court imposing a sentence other than death for capital offences, these provisions would all have had to be framed so as to apply only where the death sentence was actually imposed.
- The majority assert that the Court of Appeal were not correct when they said that in terms of section 68(2) any reduction in a fixed penalty "should be in the same currency, so to speak, as that in which the fixed penalty or fine is expressed". By giving the example of reducing a disqualification to a fine as being possible under section 68(2), the majority simply assume the answer to the point in issue. The point is, however, by no means straightforward. If for some offence Parliament provides a fixed penalty of disqualification from driving for a period of twelve months, section 68(2) may well be apt to turn that period into the maximum period of disqualification and to permit the court to impose a shorter period. But it is a large leap in reasoning to suggest that section 68(2) means that Parliament would necessarily have been content for the court not to disqualify at all and simply to fine the motorist. Section 48 of the Criminal Procedure Act 1925, which the majority leave out of account, does not support their reasoning. Moreover, once the currency of a penalty is changed, all kinds of problems of "rates of exchange" occur: for instance, is six months imprisonment plus corporal punishment a lesser penalty than twelve months imprisonment without the corporal punishment? It is noteworthy that in the United Kingdom, where Parliament permits the reviewing authority to substitute a lesser sentence for the sentence of a court martial, it lays down the hierarchy of punishments, precisely to avoid such difficulties: Army Act 1955, sections 71(1) and 113. The reasoning of the Court of Appeal, which may well reflect the accepted interpretation of section 68(2), cannot be swept aside without due consideration of all the implications.
- In fact, however, a much deeper but related flaw lies at the heart of the reasoning of the majority. Section 4 of the 1925 Act provides that "Every person convicted of murder shall suffer death". No other penalty for murder is provided in the 1925 Act or anywhere else in the statute book. The relevant provisions of the Interpretation Act are concerned with the interpretation of penal provisions which are to be found in statutes. Unless, like section 72, they do so expressly, the provisions of the Interpretation Act are not intended themselves to confer on the courts substantive powers of punishment. There is, therefore, no statutory provision which authorises the courts to impose a sentence of imprisonment on someone who is convicted of murder. Accordingly, by reason of section 4 of the 1925 Act, except in the case of an expectant mother (section 62 of the Criminal Procedure Act 1925), it is unlawful for a court to impose any sentence other than death on anyone convicted of murder. It would be lawful only if section 4, in so far as making the death sentence mandatory, were inconsistent with the Constitution and had to be made consistent by modifying it, in terms of section 5(1) of the Constitution of the Republic of Trinidad and Tobago 1976 Act, so as to authorise the court to impose a sentence of imprisonment in an appropriate case.
- For these reasons we are satisfied that the Court of Appeal were right not to accept the appellant's argument that the mandatory death penalty was abolished in 1941. We reject as far-fetched and indeed more than a little patronising the implication in the appellant's submission that for the last sixty years the public, the legal profession, the courts and the legislature of Trinidad and Tobago not to mention past members of this Board in, for instance, de Freitas v Benny  AC 239, 245D - have all been acting under a totally mistaken belief that the death penalty for murder was mandatory.
- Even the majority hesitate to affirm this. Instead they seek to rely on the fact that section 68(2) is "always speaking": section 10(1) of the Interpretation Act. We accept that section 68(2) is of that character. We also accept the reasoning of Lord Wilberforce in his dissenting speech in Royal College of Nursing of the United Kingdom v Department of Health and Social Security  AC 800, 822:
"Leaving aside cases of omission by inadvertence, this not being such a case, when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention. They may be held to do so if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed."
That analysis was recently endorsed by the House of Lords in R (Quintavalle) v Secretary of State for Health  UKPC 13;  2 WLR 692. It has frequently been applied. So, for instance, in R v Ireland  AC 147 the House of Lords held that in the light of contemporary medical knowledge recognisable psychiatric illnesses fell within the phrase "bodily harm" in sections 20 and 47 of the Offences against the Person Act 1861, even though they would have been unknown to medical science when the Act was passed. Similarly, in Fitzpatrick v Sterling Housing Association Ltd  1 AC 27 the House had to construe the term "a member of the original tenant's family" in paragraph 3(1) of schedule 1 to the Rent Act 1977. It was accepted that, at the time when the legislation was passed, the phrase would not have covered the same-sex partner of a tenant. None the less, since the term "family" had been left undefined, it was proper to interpret it in the light of the social conditions today. On that basis, by a majority, the House held that a same-sex partner should be regarded as a member of the original tenant's family for the purposes of paragraph 3(1).
- The present case is entirely different, however. In 1941 the capital sentence was just as much a penalty as it is today. The legislature would have been well aware of its existence. No new state of affairs or new set of facts bearing on policy has come into existence since 1941. The mere passage of time cannot change the meaning of legislation. Therefore, if the expression "any fixed penalty or fine" in the 1941 Ordinance was not intended to apply to the mandatory death penalty in section 4 of the 1925 Act, there is no basis in the principle described by Lord Wilberforce for holding that the same expression in section 68(2) of the Interpretation Act should be interpreted differently today and held to apply to the death penalty.
- For all these reasons we reject the submission that the effect of section 68(2) of the Interpretation Act is to convert the mandatory death penalty in section 4 of the 1925 Act into a discretionary penalty.
- We turn therefore to Mr Fitzgerald's next submission. He argued that the mandatory death penalty in section 4 of the 1925 Act constituted "cruel and unusual punishment" in terms of section 5(2)(b) of the Constitution as set out in the schedule to the Constitution of the Republic of Trinidad and Tobago Act 1976 ("the 1976 Act"). Using the power in section 5(1) of that Act, the court could therefore modify section 4 of the 1925 Act so as to bring it into conformity with section 5(2)(b) of the Constitution. This was so despite section 6(1)(a) of the Constitution which says that nothing in section 5(2)(b) is to invalidate a law, such as section 4, which had effect immediately before the Constitution came into operation on 1 August 1976.
A Digression on the Reach of the Offence of Murder
- The Court of Appeal started their consideration of the appellant's argument from the premise established for them by the decision of the Board in Reyes v The Queen  UKPC 11;  2 AC 259. They accepted that the mandatory death penalty constituted cruel and unusual punishment and therefore was
"prima facie inconsistent with, and an infringement of, the constitutional right not to be deprived of life except by due process enshrined in section 4(a) of our Constitution, as that right is particularised in section 5(2)(b)."
On that basis, other things being equal, the mandatory death penalty in section 4 of the 1925 Act would be void by reason of section 2 of the Constitution. In his argument on behalf of the State before the Board Sir Godfray Le Quesne did not challenge that premise - provided that section 5(2)(b) of the Constitution applied to section 4 of the 1925 Act. His submission was that section 5(2)(b) did not apply in this way, however, since, by reason of section 6(1)(a), nothing in section 5(2)(b) can invalidate an existing law such as section 4 of the 1925 Act. The Court of Appeal accepted that argument. On behalf of the appellant Mr Fitzgerald submitted, however, that section 6(1)(a) did not save section 4 of the 1925 Act. The principal task for the Board is to decide between these rival submissions.
- Once the State had thus very properly conceded that only section 6(1)(a) stands between the mandatory death penalty for murder in section 4 of the 1925 Act and its invalidity in terms of section 2 of the Constitution, discussion of the reach of the offence of murder (and hence of the mandatory death penalty) in the law of Trinidad and Tobago became irrelevant to these proceedings.
- Indeed the point was never live in this particular case. The jury found that the appellant shot a man who had come to steal marijuana that was being cultivated illegally in Charuma Forest. When first seen, the appellant was sitting with a shotgun in his lap in a shelter at the marijuana field. An eye-witness gave evidence that, some time later, the appellant aimed and fired the shotgun at the deceased. A shotgun was found in the appellant's home and there was evidence to link a cartridge case found at the scene with that shotgun. The appellant did not give evidence but challenged the credibility of the witnesses for the State. This was murder in anybody's money. It is hardly surprising therefore that counsel for the appellant made no criticism of the scope of the definition of murder as derived from section 3 of the 1925 Act. It was simply not an issue.
- Despite this, the majority have gone out of their way to voice elaborate criticisms of the definition of murder in the law of Trinidad and Tobago on the ground that it covers a wide spectrum of cases of homicide, "most of which would not be regarded as murder in ordinary parlance". They have in effect transferred to the definition of murder in Trinidad and Tobago the obiter criticisms to which Lord Steyn, supported by Lord Mustill, subjected the equivalent definition in the law of England and Wales in R v Powell  1 AC 1, 14H15E. Those criticisms echoed earlier, long-standing, academic criticisms of that definition. Despite all the criticisms, both academic and judicial, the Parliament of the United Kingdom has not seen fit to change the law of England and Wales on the point. For the foreseeable future, English law seems likely to remain the same as the law of Trinidad and Tobago in these respects.
- The majority do not - indeed cannot - suggest that the width of the definition of murder makes section 3 of the 1925 Act inconsistent with any provision of the Constitution and so void. In these circumstances the width of the definition of murder is a matter for Parliament and not for the courts. Mutatis mutandis the proper role of the judiciary when considering whether a law is consistent with the Constitution is to be found in the well-known passage from the judgment of Lord Diplock in Hinds v The Queen  AC 195, 214FG:
in deciding whether any provisions of a law passed by the Parliament of Jamaica as an ordinary law are inconsistent with the Constitution of Jamaica, neither the courts of Jamaica nor their Lordships' Board are concerned with the propriety or expediency of the law impugned. They are concerned solely with whether those provisions, however reasonable and expedient, are of such a character that they conflict with an entrenched provision of the Constitution ..."
Since the majority's criticisms of the definition of murder are irrelevant to the actual issue before the Board, they merely risk obscuring it. We say no more about them for fear of prolonging this digression and fogging the true issue still further.
- We agree with the majority that the appeal raises profoundly important questions about the working of the present Constitution of Trinidad and Tobago ("the Constitution"). Indeed they are important for other countries too. The Constitution belongs to the family of Commonwealth Caribbean constitutions. Though they are all different, they have certain shared characteristics. In practice, therefore, the national courts, as well as the Board, have found that interpretations worked out in the context of one constitution will often cast light on the position under another. This shared experience has enriched the jurisprudence of all the Caribbean states. So, when we come to examine the provisions of the Constitution of Trinidad and Tobago, we must not leave out of account the wider insights into the working of these constitutions which the courts have built up over many years. To ignore them would be to risk distorting rather than applying the Constitution. It would also risk creating uncertainty in the interpretation of other constitutions.
- Although we are interpreting and applying the present Constitution, we must also look at the original constitution of Trinidad and Tobago, if only because the interpretation favoured by the majority presupposes that in 1976, as well as changing the country from a constitutional monarchy to a republic, Parliament fundamentally altered at least one other aspect of its constitutional arrangements.
The 1962 Constitution
- In 1962 Trinidad and Tobago became independent from Britain. The new country was a constitutional monarchy with Her Majesty the Queen as the head of state. Its constitution ("the 1962 constitution") was set out in the second schedule to the Trinidad and Tobago (Constitution) Order 1962. This constitution was unusual in that the provisions on human rights and fundamental freedoms were modelled not on the European Convention but on the Canadian Bill of Rights 1960. This appears to have come about as the result of objections that were taken by the Bar Association to the original draft of the constitution where the relevant rights and freedoms were set out in much the same way as in the European Convention: Report of the Constitution Commission of Trinidad and Tobago (1974), para 78. Naturally, the provisions as eventually adopted were not a slavish copy of the Canadian legislation. See S A de Smith, The New Commonwealth and its Constitutions (1964), pp 205210.
- Section 4(1) of the Order provided:
"Subject to the provisions of this section, the operation of the existing laws after the commencement of this Order shall not be affected by the revocation of the existing Order but the existing laws shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Order."
Chapter I of the Constitution was concerned with "The recognition and protection of human rights and fundamental freedoms" and comprised eight sections. Section 1, the relevant part of which was copied from section 1 of the Canadian Bill of Rights, provided inter alia:
"It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following human rights and fundamental freedoms, namely
(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law
Section 2 went on to say that
"Subject to the provisions of sections 3, 4 and 5 of this Constitution, no law shall abrogate, abridge or infringe or authorise the abrogation, abridgment or infringement of any of the rights and freedoms hereinbefore recognised and declared and in particular no Act of Parliament shall
(b) impose or authorise the imposition of cruel and unusual treatment or punishment."
Section 3(1) was in these terms:
"Sections 1 and 2 of this Constitution shall not apply in relation to any law that is in force in Trinidad and Tobago at the commencement of this Constitution."
- We pause to notice that nowhere in the 1962 constitution does it say that the constitution is the supreme law of Trinidad and Tobago. Similarly, while section 2 says that no law is to do certain things, it does not actually say what the consequences are to be if those prohibitions are breached. In these respects it bears some resemblance to the Canadian Bill of Rights. Interestingly enough, it was not until 1969 that the Supreme Court of Canada finally decided that a law which could not be construed so that it did not abrogate, abridge or infringe the relevant rights or freedoms in the Bill of Rights was inoperative: R v Drybones  SCR 282.
- The position under the 1962 constitution can be contrasted, for instance, with the position under the Constitution of Jamaica. Section 2 of that constitution provides:
"Subject to the provisions of sections 49 and 50 of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void."
- The clear effect of that provision is to make the constitution the supreme law and any other law is void in so far as it is inconsistent with the provisions of the constitution. Importantly, however, section 26(8) provides that:
"Nothing contained in any law in force immediately before the appointed day shall be held to be inconsistent with any of the provisions of this Chapter; and nothing done under the authority of any such law shall be held to be done in contravention of any of these provisions."
Again there is a difference between section 3(1) of the 1962 constitution of Trinidad and Tobago and section 26(8) of the constitution of Jamaica. Whereas section 3(1) said that sections 1 and 2 "shall not apply" in relation to any existing law, section 26(8) picks up the language of section 2 of the Jamaican constitution and says that nothing contained in any existing law "shall be held to be inconsistent with any of the provisions of this Chapter".
- In Director of Public Prosecutions v Nasralla  2 AC 238 Lord Devlin had to consider the effect of these provisions in the constitution of Jamaica. He said, at pp 247-248:
"Whereas the general rule, as is to be expected in a Constitution and as is here embodied in section 2, is that the provisions of the Constitution should prevail over other law, an exception is made in Chapter III. This chapter
proceeds upon the presumption that the fundamental rights which it covers are already secured to the people of Jamaica by existing law. The laws in force are not to be subjected to scrutiny to see whether or not they conform to the precise terms of the protective provisions. The object of these provisions is to ensure that no future enactment shall in any matter which the chapter covers derogate from the rights which at the coming into force of the Constitution the individual enjoyed."
- Despite the differences in language and the absence of any section corresponding to section 2 of the Jamaican constitution, when called upon to interpret the 1962 constitution of Trinidad and Tobago, the Board followed Lord Devlin's reasoning. They thus proceeded on the footing that, although this was not said expressly, section 2 meant that, subject to section 3, any law which contravened it was void. In de Freitas v Benny  AC 239, 244F245C, Lord Diplock said:
"Chapter I of the Constitution of Trinidad and Tobago, like the corresponding Chapter III of the Constitution of Jamaica (see Director of Public Prosecutions v Nasralla  2 AC 238), proceeds on the presumption that the human rights and fundamental freedoms that are referred to in sections 1 and 2 are already secured to the people of Trinidad and Tobago by the law in force there at the commencement of the Constitution. Section 3 debars the individual from asserting that anything done to him that is authorised by a law in force immediately before August 31, 1962, abrogates, abridges or infringes any of the rights or freedoms recognised and declared in section 1 or particularised in section 2. Section 2 is not dealing with enacted or unwritten laws that were in force in Trinidad or Tobago before that date. What it does is to ensure that subject to three exceptions no future enactment of the Parliament established by Chapter IV of the Constitution shall in any way derogate from the rights and freedoms declared in section 1. The three exceptions are: Acts of Parliament passed during a period of public emergency and authorised by sections 4 and 8; Acts of Parliament authorised by section 5 and passed by the majorities in each House that are specified in that section; and Acts of Parliament amending Chapter I of the Constitution itself and passed by the majorities in each House that are specified in section 38.
The specific prohibitions upon what may be done by future Acts of Parliament set out in paragraphs (a) to (h) of section 2 and introduced by the words 'in particular,' are directed to elaborating what is meant by 'due process of law' in section 1 (a) and 'the protection of the law' in section 1 (b). They do not themselves create new rights or freedoms additional to those recognised and declared in section 1. They merely state in greater detail what the rights declared in paragraphs (a) and (b) of section 1 involve."
- In Maharaj v Attorney General of Trinidad and Tobago (No 2)  AC 385, 395 Lord Diplock confirmed how Chapter I of the 1962 constitution was to be regarded:
"In section 1 the human rights and fundamental freedoms which it is declared (by the only words in the section that are capable of being enacting words), 'shall continue to exist' are those which are expressly recognised by the section to 'have existed' in Trinidad and Tobago. So to understand the legal nature of the various rights and freedoms that are described in the succeeding paragraphs (a) to (k) in broad terms and in language more familiar to politics than to legal draftsmanship, it is necessary to examine the extent to which, in his exercise and enjoyment of rights and freedoms capable of falling within the broad descriptions in the section, the individual was entitled to protection or non-interference under the law as it existed immediately before the Constitution came into effect. That is the extent of the protection or freedom from interference by the law that section 2 provides shall not be abrogated, abridged or infringed by any future law, except as provided by section 4 or section 5.
What confines section 2 to future laws is that it is made subject to the provisions of section 3. In view of the breadth of language used in section 1 to describe the fundamental rights and freedoms, detailed examination of all the laws in force in Trinidad and Tobago at the time the Constitution came into effect (including the common law so far as it had not been superseded by written law) might have revealed provisions which it could plausibly be argued contravened one or other of the rights or freedoms recognised and declared by section 1. Section 3 eliminates the possibility of any argument on these lines."
- Two things are clear. First, laws which were passed in contravention of sections 1 and 2 of the 1962 constitution would be void just as they would be void under the corresponding provisions of the Jamaican constitution. Secondly, the rights in sections 1 and 2 were circumscribed by the existing laws of the country. Those laws were therefore not to be called into question. This had the advantage of making for stability. But, much more importantly, these laws were secured in order to define the scope and limits of the rights, some of which were declared in very broad terms. In 1974 in paras 7980 of their Report, to which we were not referred by counsel, the Constitution Commission explained the thinking behind this aspect of the 1962 Constitution:
"79. In so doing, the present Constitution adopted an approach which reflects the thinking in the United Kingdom. There, no written Constitution exists and all individual rights have their roots in the common law. These rights may be defined as the area of permissible activity when all the laws restricting the individual have been taken into account. Thus freedom of thought and expression have always existed in Trinidad and Tobago. But everyone knew without its being explicitly stated that this freedom was subject, among other restraints, to the law of libel and slander, to the Sedition Ordinance of 1920, to the laws against obscenity and blasphemy, to the prohibition against publishing reports of the proceedings at preliminary inquiries into indictable offences and to the power of government to ban the importation of literature which it considered subversive.
80. This result was achieved in our present Constitution by the expedient of section 3 which in a comprehensive provision made all the declared rights and freedoms subject to all the laws in force in Trinidad and Tobago at its commencement. Also, because there was from that time onwards to be a written Constitution, guaranteeing those rights and freedoms from abridgment or infringement, provision had to be made for validating future laws which might appear in any respect whatever to be in breach of that guarantee. Hence section 5 with its safeguards both of an affirmative vote by a special majority and if 'shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.' The effect was indeed to produce a brief and apparently simple statement of rights and freedoms. But the brevity and apparent simplicity were misleading. Many people were shocked to find out that rights and freedoms set out in absolute terms were subject to important limitations the extent of which was nowhere defined. This led some people to wonder, perhaps cynically, whether there was any meaning to these rights and freedoms at all."
- The Commission went on in the next paragraph to criticise the situation in which Parliament could pass laws that were to have effect despite the absolute nature of the fundamental rights as set out in the 1962 Constitution. Even though the Commission might come to regard it as defective, this was the constitutional scheme that the representatives of Trinidad and Tobago chose to adopt when their country became independent. Other countries adopted different schemes: some conferred no protection on existing laws, some protected existing laws from challenge only for a limited period, while others saved existing laws from challenge only in respect of a limited number of rights and freedoms. It must be presumed that those different schemes met local wishes and conditions.
- In de Freitas v Benny  AC 239 the Board held that section 3 of the 1962 constitution prevented any challenge to existing laws based on sections 1 and 2. Mr Fitzgerald accepted that this decision was correct because section 3 of the 1962 constitution, which said that sections 1 and 2 "shall not apply" in relation to any existing law, constituted a "shut out". From this concession it follows that section 4(1) of the 1962 Order could not be used to modify any existing law so as to bring it into conformity with sections 1 and 2 of the 1962 constitution. Mr Fitzgerald contended, however, that section 3 of the 1962 constitution was to be contrasted with the equivalent, but differently worded, section 6(1)(a) of the present Constitution. Unlike section 3 of the old constitution, section 6(1)(a) was no barrier to using section 5(1) of the 1976 Act to modify existing legislation.
The Present Constitution
- In the 1970s it was decided that Trinidad and Tobago should have a new republican constitution, with a President rather than the Queen as head of state. To help prepare the new constitution, the Governor General appointed the Constitution Commission, to which we have already referred. As we have noted, the Commission were critical of the scheme of rights and freedoms in the 1962 Constitution that had been based on the Canadian model. They therefore recommended, in paragraph 82 of their Report, that the new Constitution should reverse the decision taken in 1962 and should adopt the pattern of the European Convention on Human Rights. This would bring Trinidad and Tobago into line with other Commonwealth Caribbean constitutions. They appended a draft Constitution which would have carried this recommendation into law. Notably, that draft contained no savings clause for existing laws. As the Commission explained in their Report, para 86:
"We have not included in the draft any clause preserving existing legislation. Where an existing law abridges or infringes a fundamental right, its validity will depend on its falling within one or other of the permitted exceptions and also on its satisfying the test of what is reasonably justifiable in a society with a proper respect for the rights and freedoms of the individual."
- For reasons that are not clear, the Commission's recommendations were not adopted. In 1976 Parliament enacted the present Constitution and Trinidad and Tobago passed from being a constitutional monarchy with the Queen as the head of state to being a republic with the President as the head of state. Many of the alterations introduced by the new constitution were simply designed to make this change. Similarly, much of the 1976 Act is concerned to ensure a seamless transition to a republic by translating references which were appropriate under the old constitution to references that are appropriate under the new constitution. This is indeed part of the function of section 5(1) of the 1976 Act which is, in substance, identical to section 4(1) of the 1962 Order:
"Subject to the provisions of this section, the operation of the existing law on and after the appointed day shall not be affected by the revocation of the Order-in-Council of 1962 but the existing laws shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Act."
A similar formula is to be found in section 20 of the 1976 Act, dealing with the standing orders of the Senate and House of Representatives.
- A comparison of the texts of the two constitutions shows, however, that in 1976 the opportunity was indeed taken to make some alterations that went beyond converting the country from a constitutional monarchy to a republic. In particular, unlike the 1962 constitution, the present Constitution begins with three sections under the heading "Preliminary". Among them is section 2 which provides:
"This Constitution is the supreme law of Trinidad and Tobago, and any other law that is inconsistent with this Constitution is void to the extent of the inconsistency."
Parliament thus took the opportunity to insert into the 1976 constitution a provision, similar to section 2 of the Jamaican constitution and to equivalent sections in other constitutions, which defines the status of the Constitution as the supreme law and declares expressly that any law which is inconsistent with the Constitution is void to the extent of the inconsistency. This section in effect spelled out what the Board had assumed to be the position in de Freitas v Benny  AC 239 following the approach in Director of Public Prosecutions v Nasralla  2 AC 238. A few years later section 52(1) of the Canadian Constitution Act 1982 contained a similar provision and so made it plain that, in Canada too, the new constitution was to be regarded as supreme.
- But beyond that, the alterations are relatively minor. Above all, the rights and freedoms in the new Constitution are not modelled on the European Convention; they adhere to the scheme in the 1962 Constitution. As we saw, that scheme only worked because there was a savings clause that preserved existing laws and so defined the scope of the rights and freedoms that were expressed in absolute terms in that Constitution. Since the same scheme was being followed in the new Constitution, there would be the same need to include a savings clause. And that is what we find.
- After the preliminary sections comes Chapter I, with the title "The Recognition and Protection of Fundamental Human Rights and Freedoms" - very similar to the title of Chapter I of the 1962 Constitution. Part I of Chapter I is headed "Rights enshrined" and comprises sections 4 and 5. They correspond to sections 1 and 2 of the 1962 constitution and are designed to enshrine certain rights. Section 4 provides inter alia:
"It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental rights and freedoms, namely
(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law ..."
So far as relevant, section 5 then says:
"(1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognised and declared.
(2) Without prejudice to subsection (1), but subject to this Chapter and to section 54, Parliament may not-
(b) impose or authorise the imposition of cruel and unusual treatment or punishment."
In Part II, which the heading tells us is intended to introduce exceptions for existing law, we find section 6(1) in these terms:
"Nothing in sections 4 and 5 shall invalidate -
(a) an existing law;
(b) an enactment that repeals and re-enacts an existing law without alteration; or
(c) an enactment that alters an existing law but does not derogate from any fundamental right guaranteed by this Chapter in a manner in which or to an extent to which the existing law did not previously derogate from that right."
This is plainly intended to be the savings clause that will perform the same necessary function under the new Constitution as section 3 performed under the 1962 Constitution.
- The argument for the appellant, which the majority have accepted, is, however, that, by replacing the "shut-out" provision in section 3 of the 1962 Constitution with this provision, Parliament adopted a more open-textured scheme in relation to existing laws and so "opened the door" to the interpretation which they have adopted.
The approach to interpretation
- In our view the interpretation favoured by the majority is not only untenable but liable to subvert the operation of the Constitution. In Pinder v The Queen  UKPC 46;  1 AC 620, 628629, para 15, Lord Millett described the essential nature of a constitution and the role of the judges when interpreting it. He said:
"A constitution is an exercise in balancing the rights of the individual against the democratic rights of the majority. On the one hand, the fundamental rights and freedoms of the individual must be entrenched against future legislative action if they are to be properly protected; on the other hand, the powers of the legislature must not be unduly circumscribed if the democratic process is to be allowed its proper scope. The balance is drawn by the Constitution. The judicial task is to interpret the Constitution in order to determine where the balance is drawn; not to substitute the judges' views where it should be drawn."
Although he was referring in particular to the constitution of the Bahamas, his words are equally applicable to the constitutions of other countries, including Trinidad and Tobago.
- In this case, as in any other, when construing the relevant provisions we, of course, bear in mind the injunction of Lord Wilberforce in Minister of Home Affairs v Fisher  AC 319, 328GH that provisions such as those to be found in Chapter I of the Constitution
"call for a generous interpretation avoiding what has been called 'the austerity of tabulated legalism', suitable to give to the individuals the full measure of the fundamental rights and freedoms referred to."
But we do not overlook, either, his equally important statement, at p 329EF, that:
"Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences."
In order to achieve the proper interpretation, respect for the language of the constitution and for the traditions and usages that have given it meaning must march hand in hand with the principle of giving full recognition and effect to the fundamental rights and freedoms which it enshrines. This is only to reiterate what Lord Bingham of Cornhill said in Reyes v The Queen  AC 235, 246, para 26:
"As in the case of any other instrument, the court must begin its task of constitutional interpretation by carefully considering the language used in the Constitution. But it does not treat the language of the Constitution as if it were found in a will or a deed or a charterparty. A generous and purposive interpretation is to be given to constitutional provisions protecting human rights. The court has no licence to read its own predilections and moral values into the Constitution
The Board pointed out in Pinder v The Queen  1 AC 620, 628, para 14, that, if a court indulges itself by straining the language of the constitution to accord with its own subjective values, then, as Holmes J said in Otis v Parker (1903) 187 US 606, 609:
"a constitution, instead of embodying only relatively fundamental rules of right, as generally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opinions ..."
Section 6(1)(a) interpreted
- The majority are, of course, correct to notice the change in the wording between section 3 of the 1962 constitution and section 6(1)(a) of the present Constitution. But the significance of that change has to be gauged both in the context of the Constitution as a whole and in the context of another change, the insertion of section 2. As the Court of Appeal rightly said, it is the introduction of section 2 which has brought about the change of approach that is to be seen in section 6(1)(a). Since section 2 now spells out that an inconsistency with a provision of the Constitution makes the offending law to that extent void, it was only natural for the draftsman of section 6(1)(a) to reflect that approach. To see how he did this, it is necessary to tease out the meaning of both "invalidate" and "law" in section 6(1)(a).
- It is no surprise to find that, according to The Oxford English Dictionary, one of the meanings of "to invalidate" is "to make null and void". Section 6(1)(a) can therefore properly be understood to say that nothing in sections 4 and 5 shall make any existing law void. The draftsman is proceeding on the basis that, in other circumstances, sections 4 and 5 of the Constitution can have the effect of making laws void. And, if one asks how it comes about that these sections can make a law void, then section 2 provides the answer: under it, any law that is inconsistent with the Constitution is "void" to the extent of the inconsistency. So a law that is inconsistent with sections 4 and 5 is void to the extent of the inconsistency with those sections. In that context section 6(1)(a) clearly means that section 2 is not to make any existing law void by reason of being inconsistent with sections 4 and 5.
- Leaving aside the common law, section 3(1) of the Constitution defines the term "law" as including "any enactment". The term "enactment" is apt to cover not only an Act but any legal proposition contained in a section or part of a section of an Act: Bennion, Statutory Interpretation, pp 337-340. So "an existing law" for these purposes may be an Act or a section or part of a section: Wakefield Light Railways Company v Wakefield Corporation  2 KB 140, 145146 per Ridley J. It follows that section 2 means that any legal proposition in a statute is void to the extent that it is inconsistent with the Constitution. Equally, under section 6(1)(a) no legal proposition in an existing statute is to be void by reason of being inconsistent with sections 4 and 5 of the Constitution. Any legal proposition or enactment which is not void by reason of inconsistency with the Constitution is valid so far as the Constitution is concerned.
- The expression "existing law" in section 5(1) of the 1976 Act has the same meaning as in section 6(1)(a) of the Constitution: section 2 of the 1976 Act.
Section 4 of the 1925 Act valid
- As the majority accept, prior to the present Constitution coming into effect in 1976, section 4 of the 1925 Act was valid under the 1962 constitution. Section 4 is unquestionably "an existing law" both in terms of section 6(1)(a) of the Constitution and in terms of section 5(1) of the 1976 Act. Therefore nothing in section 4 or 5 is to make the enactment or legal proposition in section 4 of the 1925 Act void under the Constitution. So that enactment or legal proposition is valid under, and conforms to, the Constitution. In these circumstances the power under section 5(1) of the 1976 Act to modify section 4 so as to bring it "into conformity" with the Constitution does not come into play. Section 4 of the 1925 Act is, quite simply, a constitutionally valid law of Trinidad and Tobago which binds this Board just as surely as it binds the national courts.
The Approach of the Majority
- The majority have reached the opposite conclusion only by adopting a construction of section 5(1) of the 1976 Act that first surfaced in Mr Fitzgerald's fall-back argument in Director of Public Prosecutions of Jamaica v Mollison  UKPC 6;  2 WLR 1160, 1172, para 18. The Board did not need to reach a view on it but Lord Bingham of Cornhill recorded, at p 1172, para 19, that they had given anxious consideration to what he described as "this ingenious argument". Having examined the argument, we regret that we find it utterly unconvincing: it is not only inconsistent with a long line of authorities but uses section 5(1) of the 1976 Act to distort section 6(1)(a) of the Constitution and empty it of all meaningful content.
- If we understand their approach correctly, the majority say that where a provision, such as section 4 of the 1925 Act, is challenged by reference to sections 4 and 5 of the Constitution, the first stage is to determine without holding that it is void under the Constitution - whether the provision can be modified under section 5(1) of the 1976 Act, by reading down, reading in, or severance, so as to render the words of the provision in conformity with the Constitution. Section 6 comes into operation only in those cases where it has proved impossible to modify the provision in any of these ways. Then, it is said, section 6 steps in to prevent the law from being invalidated completely by section 2.
- By starting with section 5(1) of the 1976 Act the majority set off from the wrong place. The supreme law of Trinidad and Tobago is not to be found in the 1976 Act but in the Constitution contained in the schedule to that Act. This is stated specifically both in section 2 of the Constitution and in section 3 of the 1976 Act. It is the Constitution which controls other laws. Anything done under section 5(1) of the 1976 Act is purely consequential on the operation of the Constitution. By first relying on section 5(1) of the 1976 Act and then purporting to interpret section 6(1)(a) of the Constitution so as to fit in with their interpretation of that section, the majority proceed back to front.
Section 5(1) examined
- This becomes even clearer when the terms of section 5(1) are examined. As they show, the starting-point for modifying any law under section 5(1) is that the law is not in conformity with the 1976 Act and requires to be brought into conformity. Contrary to what the majority say, therefore, the first stage in all cases must be to determine whether the existing law is in conformity with the 1976 Act not with sections 4 and 5 of the Constitution when read in isolation but with all the relevant provisions of the Act and, more particularly, with all the relevant provisions of the Constitution, including section 6(1)(a). If it turns out that the law is, to a greater or lesser degree, not in conformity with the Constitution, then the duty of the court is to read it with such modifications etc as may be necessary to make it conform. When that process has been carried out, the existing law will conform to the Constitution. There is nothing further to be done. That approach applies across the board, whatever provision of the Constitution is in play.
- Not only is this the plain meaning of the words of section 5(1) but it is the meaning that has been attributed to the equivalent provisions in many constitutions over many decades. The settled case law shows that section 5(1) comes into play only once the court has held that an existing law is inconsistent, or incompatible, with the Constitution. It also shows that the wording of section 5(1) gives the courts a power to bring legislation into conformity with the Constitution which far exceeds any power of mere construction and amounts to a power of amendment.
- So far as the first of these matters is concerned, we cite only a few examples. We start more than forty years ago with the decision of the Board when applying article 162(1) of the Constitution of the Federation of Malaya in Kanda v Government of the Federation of Malaya  AC 322. Lord Denning said, at p 333:
"If there was in any respect a conflict between the existing law and the Constitution
then the existing law would have to be modified so as to accord with the Constitution."
A little later he observed, at p 334, that
"In a conflict of this kind between the existing law and the Constitution, the Constitution must prevail. The court must apply the existing law with such modifications as may be necessary to bring it into accord with the Constitution."
Jumping over the intervening years, we pick out Browne v The Queen  1 AC 45, 50d-e. Dealing with paragraph 2(1) of schedule 2 to the Saint Christopher and Nevis Constitution Order 1983, Lord Hobhouse of Woodborough said that the court is to
"identify the element of unconstitutionality in the relevant statutory provision and then to consider what change is necessary to give effect to the requirements of the Constitution and the appellant's constitutional rights."
Similarly, last year in R v Hughes  UKPC 12;  2 AC 259, 282, paras 48 and 50, the Board first identified the extent to which the provision for the mandatory death penalty in section 178 of the criminal code was inconsistent with section 5 of the Constitution of Saint Lucia and so was void by virtue of section 120 of the constitution. Only after that did the Board, at p 282, para 51, use its power under paragraph 2(1) of Schedule 2 to the Saint Lucia Constitution Order 1978 to bring section 178 of the criminal code into conformity with the constitution by modifying section 1284 of that code. Indeed the Board did not even mention paragraph 2(1) until it had first reached its conclusion that section 178 of the criminal code was void to a certain extent. Precisely the same approach was adopted in Fox v The Queen  2 AC 284, 289e, para 10 and 289290, para 11.
- So far as the breadth of the court's powers under section 5(1) is concerned, we could not hope to better the survey of the case law by de la Bastide CJ giving the judgment of the Court of Appeal in this case. There is no sign in the cases that a court has ever in practice found it impossible to bring an existing law into conformity with a constitution by using this power. Indeed, when, on an isolated occasion, the Court of Appeal of the West Indies Associated States decided that their power was not adequate to the task, the Board promptly reversed them: Attorney-General of St Christopher, Nevis and Anguilla v Reynolds  AC 637. In our view therefore the court's power under section 5(1) is wide enough to enable it to remove any inconsistency with the Constitution that may be found in an enactment.
The Majority's Approach to Section 5(1)
- Without even mentioning these settled tracts of authority, the majority have now adopted a construction of section 5(1) of the 1976 Act which is not only inconsistent with them but makes a nonsense of them. According to the majority, a court can use the power in section 5(1) of the 1976 Act so as to bring section 4 of the 1925 Act into conformity with section 5(2)(b) of the Constitution without first considering whether section 4 is actually inconsistent with the Constitution taken as a whole. They thus skip over that initial step which the cases, as well as the words of section 5(1), show is necessary but which would be fatal to the appellant's argument in the present case. Ignoring all the other provisions of the Constitution, they fasten on to section 5(2)(b) and claim to be able to use the power in section 5(1) of the 1976 Act to modify section 4 of the 1925 Act so as to make it conform with section 5(2)(b) but without first holding that it is void.
- On the approach of the majority there is what they describe, with considerable restraint, as "a potential tension" between section 5(1) of the 1976 Act and section 6(1)(a) of the Constitution. On the approach that we favour, there is no tension between the two sections. Nor are the majority right to suggest that our interpretation leaves only a minimal scope for the operation of section 5(1): just like its predecessor, section 4(1) of the 1962 Order, it operates so as to bring existing laws into conformity with all those provisions of the Constitution to which the sovereign Parliament of the country has made them subject. And the majority accept indeed that this was the position under the 1962 Order. But if, as they concede, the majority's interpretation does give rise to tension between sections 5(1) and 6(1)(a), the Constitution is the supreme law and so that tension must be resolved by reading section 5(1) of the 1976 Act in the light of section 6(1)(a) of the Constitution. The majority do precisely the reverse: they adopt a construction of section 5(1) that robs section 6(1)(a) of all viable content. If, as they hold, a court can begin by construing existing laws with any modification etc necessary to bring them into conformity with any of the provisions of sections 4 and 5, then at the end of that process the laws will indeed conform to them. Despite this, the majority suggest there may be laws which are irremediable by resort to modification. In that event, they say, "section 2 renders the provision void unless it is saved in respect of section 4 or 5 non-conformity by section 6". In other words the function of section 6(1)(a) is to save laws which cannot be effectively modified by section 5(1).
- The majority thus suppose that, by enacting section 6(1)(a), Parliament intended to open up all the existing laws to modification under section 5(1) so as to make them conform to the rights set out in sections 4 and 5. But, with studied and unexampled cynicism, Parliament simultaneously excluded from the new rιgime those laws which are so wholly inconsistent with sections 4 and 5 that they cannot be successfully modified. In Attorney-General of St Christopher, Nevis and Anguilla v Reynolds  AC 637, 655 Lord Salmon said of a similar provision in the constitution of St Christopher, Nevis and Anguilla:
"If the Court of Appeal were right in concluding that no modification or adaptation or qualification or exception could bring the Order in Council into line with the Constitution, then they would have been plainly right in holding that the Order in Council was nugatory and the Emergency Powers Regulations 1967 invalid."
So, on the approach of the majority, it must be supposed that Parliament enacted section 6(1)(a) to secure just the reverse of this approach which the Board had thought "plainly right": instead of providing that laws which could not be modified should be invalid, Parliament singled them out from all the other existing laws and decreed that they alone were to enjoy a continued, unchanged, life under the Constitution. The worse the incompatibility with the Constitution, Parliament supposedly declared, the less the chance of having it put right. We need hardly say that the majority have produced nothing to suggest that Parliament ever contemplated adopting such a perverse, not to say outrageous, policy. In the absence of a clear indication that it did, a court should not attribute such an intention to Parliament, especially when another, straightforward, interpretation of the words of section 6(1)(a) is available.
- Indeed, such indications as there are of Parliament's intention in enacting section 6 of the Constitution confirm that straightforward interpretation. According to the Official Report of the debate in the Senate on 23 March 1976, in reply to a proposal to amend clause 6, Senator Prevatt, speaking for the government, said this:
"Maybe I should explain what the provisions which we have here are intended to achieve. We have existing laws which I suppose we will all agree should be saved. We must have some laws with which we could go into the new constitution. So we agreed that laws we have should be saved. If we save the laws, what we are saying is that if we re-enact it without alteration, more or less, it is the same law, then it will remain valid. If the laws in any way derogate from any rights as you have it now (existing law), then provided you do not go and derogate any further it will remain there. This is the intention we have in 6(1). Now clause 6(2) was redrafted because the lawyers felt that if you went and you changed the law and you derogated further than the previous law, it might be found that you did something that was invalid in the sense of the additional derogation. So what they were trying to do was to say, all right, in that case your additional derogation will remain valid. These were the intentions we had; nothing more than that. As to whether the amendment, as proposed by Senator Capildeo, will achieve that, I do not know. I was just asking my adviser whether it would. Now he tells me this will not achieve this and I was just about asking what will it achieve when I was asked to make some statement on the matter. As I say, I hope Senators will bear with me. I am not a lawyer so I must get advice on these matters."
While Senator Prevatt's answer may not have been couched in precise legal language, its import is clear: section 6 was intended to save existing laws and laws that were in substance re-enactments of those laws. There is not a hint of any intention to introduce a less rigorous form of protection which, as we have pointed out, would have been contrary to the thinking behind the savings clause with this scheme of rights and freedoms. Nor is there any hint of an intention to produce the effect brought about by the interpretation of the majority.
- Moreover, if the majority's approach to the interpretation of sections 5(1) and 6(1)(a) is right, then as recently as last year in R v Hughes the Board wasted their time analysing the precise scope of paragraph 10 of Schedule 2 to the Saint Lucia Constitution Order: they should have cut to the chase and immediately used the power in paragraph 2(1) to modify section 178 of the criminal code on the basis that the mandatory death penalty constituted inhuman or degrading punishment in terms of section 5 of the constitution of Saint Lucia. They were equally slow in the uptake in Fox v The Queen. The reasoning in these and all similar cases can now be safely ignored: even where it lies outside the constitution, in future a provision such as section 5(1) will virtually eliminate any provision in the constitution that is designed to safeguard existing laws. The stability and the fixed points in the legal landscape, and the qualifications to the rights and freedoms, which it was hitherto thought that section 6(1)(a) of the Constitution had secured are now in peril of attack. Mutatis mutandis the same applies to other Caribbean constitutions.
- Ironically, while claiming that their construction of section 5(1) "has the merit of giving a generous interpretation to section 5", the majority actually impose a hitherto unheard-of restriction on its scope by holding that, despite the experience in practice, there is some kind of existing law which is incompatible with the Constitution but which cannot be brought into conformity with it under section 5(1). The majority do not explain how this comes about, given the terms of section 5(1) and the way the courts have interpreted the subsection. The only hint that they give is to say that their interpretation of sections 5(1) and 6(1)(a) would not warrant a challenge to the death sentence as such. But the impossibility of challenging the death sentence cannot result from any limitation that is inherent in their interpretation of the two sections. If the death penalty were indeed a cruel and unusual treatment or punishment in terms of section 5(2)(b) of the Constitution, then on the majority's reasoning it would certainly be open to a court to modify any relevant statutory provision by, for instance, substituting a sentence of imprisonment, so as to make it conform with that right under the Constitution. Section 6(1)(a) would not come into play. Therefore, if the majority consider that the death penalty would escape challenge, it can only be because they accept that, by reason of section 4(a), section 5(2)(b) is not intended to catch the death penalty as such. This would, of course, be in line with the underlying assumption in both Reyes v The Queen  2 AC 235, 240, para 7 and R v Hughes  2 AC 259, 279, para 41.
The Majority's References to other Constitutions
- The majority permit themselves to note that the two-stage interpretative process which they envisage would operate in a broadly similar fashion to the obligation of "reading down" provisions in the bills of rights of Canada, New Zealand and South Africa. A glance at the relevant constitutional provisions and cases shows, however, that they do not support the majority's interpretation of sections 5(1) and 6(1)(a).
- For Canada the majority cite Schachter v Canada  2 SCR 679, 695 696 . There, however, Lamer CJ was discussing the possibility of using the technique of reading down where the court had already found that a provision was inconsistent with the provisions of the constitution under section 52(1) of the Constitution Act 1982. As he went on to say, at p 702,
"the first step in choosing a remedial course under section 52 is defining the extent of the inconsistency which must be struck down."
That is precisely the approach which we favour and the majority eschew in applying section 5(1) in the present case.
- For South Africa the majority cite State v Manamela  (3) SA 1 which concerned the constitutionality of a reverse onus provision in a statute. The Constitutional Court first decided, at para 51, that the provision infringed the presumption of innocence under section 35(3)(h) of the Constitution of the Republic of South Africa 1996. Having done so, they then went on to consider the appropriate remedy under section 172(1) of that constitution. In terms of paragraph (a) of section 172(1) a court deciding a constitutional matter "must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency". So any other remedy presupposes that the law in question has been held to be inconsistent with the constitution and so to be void. The Constitutional Court duly made such a declaration in Manamela's case: para 59. Section 172(1)(b) provides that the court "may make any order that is just and equitable ..." Applying that provision, the Constitutional Court held, at para 57:
"Reading down, reading in, severance and notional severance are all tools that can be used either by themselves or in conjunction with striking out words in a statute for the purpose of bringing an unconstitutional provision into conformity with the Constitution, and doing so carefully, sensitively and in a manner that interferes with the legislative scheme as little as possible and only to the extent that is essential" (emphasis added).
In the context of para 57 the words in italics show beyond a peradventure that the approach of the Constitutional Court supports the approach to section 5(1) which we adopt and contradicts the position of the majority.
- Section 6 of the New Zealand Bill of Rights Act 1990 provides:
"Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning."
In relation to this section in Moonen v Film and Literature Board of Review  2 NZLR 9, 16, para 17, the Court of Appeal of New Zealand held that, when considering any provision,
"If more than one meaning is available, the second step is to identify the meaning which constitutes the least possible limitation on the right or freedom in question. It is that meaning which section 6 of the Bill of Rights, aided by section 5, requires the Court to adopt."
This approach, which Tipping J thought courts might find useful, has something in common with the one favoured by the majority. Two points have to be noticed, however. First, and most importantly, the New Zealand Bill of Rights could not be more different in conception and effect from the Constitution of Trinidad and Tobago and the 1976 Act. In particular, section 4 of the New Zealand Bill of Rights is designed to prevent courts from holding that legislation is invalid or ineffective, whereas section 2 of the Constitution is designed to have precisely the opposite effect. Section 5(1) of the 1976 Act works within that context and gives the courts power of a quite different order from the power that is considered appropriate for the courts in New Zealand. For that reason their approach to the interpretation of legislation affords no sound guide to the interpretation of section 5(1). Secondly, in any event, the interpretation of section 6 of the Bill of Rights which Tipping J said courts might find helpful was called into question at a later stage in the same litigation: Moonen v Film and Literature Board of Review  2 NZLR 754. The Court of Appeal declined the Solicitor General's invitation to reopen the matter in those proceedings, but Richardson P acknowledged, at pp 759760, para 13, that:
it is a complex question. Arguably the answer is context -dependent and would require extensive consideration of the application of section 5 in relation to various provisions of the Bill of Rights as well as of section 14, which was the immediate subject of the discussion in Moonen 1 ( 2 NZLR 9)."
He went on, at p 760, para 15, to emphasise that the approach commended in the earlier judgment was not intended to be prescriptive. It might be helpful but other approaches were open. For present purposes it would be unsafe to build an argument on such a foundation.
- The majority also cite the approach in sections 3 and 4 of the United Kingdom Human Rights Act 1998. Section 3 says that, "so far as it is possible to do so", legislation must be read and given effect in a way which is compatible with the Convention rights scheduled to that Act. Taken together, sections 3 and 4 of the Human Rights Act specifically contemplate that it may not be "possible" to read and give effect to legislation compatibly with the Convention and say what a higher court may do in that eventuality. By contrast, section 5(1) of the 1976 Act contemplates the existing laws being construed with the modifications etc that are "necessary" to bring them into conformity with its provisions. Parliament apparently does not envisage that there will be an existing law that is not in conformity with the 1976 Act and yet cannot be construed in such a way as to bring it into conformity. Rather, existing laws are to survive but to conform to the Constitution if need be, after the necessary modification. Precisely because of this, as the cases show, the courts have repeatedly felt able to go far beyond mere interpretation and have in effect amended the existing laws where that has been necessary to make them conform to the Constitution. R v Hughes and Fox v The Queen are only the most recent examples. The two-stage approach envisaged by the majority is inconsistent with that scheme.
The International Obligations of Trinidad and Tobago
- In para 26 of their judgment the majority argue that so far as possible the Constitution should be interpreted so as to conform to the international obligations of Trinidad and Tobago. We are prepared to assume, for the reasons explained by the majority, that at the relevant time the mandatory death penalty was inconsistent with Trinidad and Tobago's obligations under the American Convention on Human Rights (1969). We also assume that it is inconsistent with Trinidad and Tobago's obligations under the American Declaration of the Rights and Duties of Man (1948). These assumptions do not make any difference to the interpretation of the provisions of the Constitution which we have to apply in this case.
- The only provision to whose interpretation those international obligations might have relevance is section 5(2)(b), preventing cruel and unusual punishments. But the interpretation of that provision is not in dispute since Sir Godfray Le Quesne accepts that the mandatory death penalty in section 4 of the 1925 Act would infringe that right, if the right applied to existing laws. On the other hand, section 6(1)(a), the provision of the Constitution on which this appeal turns, is of general application: it covers all the various rights in sections 4 and 5. It makes no mention of the death penalty. The international obligations of Trinidad and Tobago in relation to the death penalty are therefore not a consideration which can affect its interpretation or indeed the interpretation of the equally general section 5(1) of the 1976 Act. In any event, as we have explained, we do not consider that it is actually possible to interpret section 6(1)(a) in such a way as to allow the appellant to rely on section 5(2)(b). In these circumstances any obligation to interpret the Constitution, so far as possible, so as to conform to the country's international obligations would not bite.
Summary of our Conclusions on Section 6(1)(a) of the Constitution
- For all these reasons we are unable to accept the interpretation of section 5(1) of the 1976 Act and section 6(1)(a) of the Constitution which the majority favour. In our view their approach does not do justice to the plain words of these provisions. Moreover, it is contrary to well-established authority which cannot be ignored and from which the Board could properly depart, if at all, only after the most careful consideration, perhaps by an enlarged Board, of all the implications for the future application of savings clauses in the Caribbean constitutions. We consider that section 6(1)(a) is there, for sound reasons, to prevent existing laws being held void under section 2 of the Constitution by reference to the rights in sections 4 and 5. That being so, section 4 of the 1925 Act cannot be invalidated by reference to section 5(2)(b) of the Constitution. Since, however, the power of modification in section 5(1) of the 1976 Act comes into play only where an existing law does not conform to the Constitution and so is void, no question arises of using that power to modify section 4 of the 1925 Act.
- Attractively presented though they were, we can deal much more briefly with Mr Starmer's two arguments.
Separation of Powers: Judiciary and Executive
- In practice not all persons who are sentenced to death in terms of section 4 of the 1925 Act are executed. Under section 87(1) of the Constitution the President has the power of pardon which he must exercise in accordance with the advice of a minister designated by him, acting in accordance with the advice of the Prime Minister (section 87(3)). By section 89(1) of the Constitution, where an offender has been sentenced to death, a report must be prepared and the matter referred to a meeting of the Advisory Committee on the Power of Pardon. The Advisory Committee comprises the minister, the Attorney General, the Director of Public Prosecutions and not more than four other people appointed by the President after consultation with the Prime Minister and the Leader of the Opposition: section 88. The composition of the Advisory Committee thus has the characteristics of an executive rather than a judicial body. The minister need not act in accordance with the advice of the Committee. By virtue of section 87(2)(c) the President may substitute a less severe form of punishment for that imposed by the sentencing judge. This is the power which the President uses in appropriate cases to commute the death sentence passed on those convicted of murder and to substitute a period of imprisonment. From what counsel told the Board it appears that in practice the Advisory Committee is instrumental in deciding how long those convicted of murder should spend in prison when the death sentence is commuted.
- Mr Starmer submitted that, since the cases of all prisoners sentenced to death under section 4 of the 1925 Act had to be referred to the Advisory Committee, it was in effect the Advisory Committee and not the judge who decided what sentence the prisoner should undergo. The Advisory Committee therefore performed a critical role in the sentencing of those convicted of murder. This was contrary to the requirement for the separation of judicial and executive powers that was inherent in the Constitution: Hinds v The Queen  AC 195, 211212; Director of Public Prosecutions of Jamaica v Mollison  2 WLR 1160, 1168, para 13.
- We agree with Sir Godfray Le Quesne that the appellant's argument sits uneasily with the reasoning of the Board in Reyes v The Queen  2 AC 235, 257, para 44 to the effect that the function of the Advisory Committee is not a sentencing function. In any event, Mr Starmer was in substance arguing that section 4 of the 1925 Act was unconstitutional because section 89(1) of the Constitution required that the cases of those sentenced to death under it should be referred to the Advisory Committee. In other words, he was arguing that a requirement, not of section 4 of the 1925 Act, but of the Constitution itself made section 4 unconstitutional. It is impossible, however, to hold that something which the Constitution prescribes makes a law unconstitutional. As Mr Starmer really acknowledged, the logic of his position was that, if the provisions of the Constitution providing for the review of all death sentences which can only be for the condemned men's benefit were repealed and the mandatory death sentences were always carried out, section 4 would be constitutional. Such an argument is fatally flawed. We therefore have no hesitation in rejecting this submission.
Separation of Powers: Legislature and Judiciary
- As a fallback, Mr Starmer submitted that, by making the death sentence mandatory and so depriving the court of any discretion in fixing the appropriate sentence in the circumstances of the individual case, the legislature had acted in breach of the principle of the separation of the powers of the courts and the legislature which was also inherent in the Constitution. Again we accept that this principle is to be found in the Constitution. Nevertheless, we reject the argument.
- What is constitutionally unacceptable is that the legislature should prescribe the sentence that is to be imposed on any particular individual. There is nothing inconsistent with the separation of powers, however, in Parliament legislating to prescribe the penalty that is to be imposed for a particular offence. The position was explained with conspicuous clarity by Σ Dαlaigh CJ in the Supreme Court of Ireland in Deaton v Attorney-General and the Revenue Commissioners  IR 170, 182183:
"There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case. It is here that the logic of the respondents' argument breaks down. The Legislature does not prescribe the penalty to be imposed in an individual citizen's case; it states the general rule, and the application of that rule is for the Courts. If the general rule is enunciated in the form of a fixed penalty then all citizens convicted of the same offence must bear the same punishment. But if the rule is stated by reference to a range of penalties to be chosen from according to the circumstances of the particular case, then a choice or selection of penalty falls to be made. At that point the matter has passed from the legislative domain. Traditionally, as I have said, this choice has lain with the Courts. Where the Legislature has prescribed a range of penalties the individual citizen who has committed an offence is safeguarded from the Executive's displeasure by the choice of penalty being in the determination of an independent judge. The individual citizen needs the safeguard of the courts in the assessment of punishment as much as on his trial for the offence."
This Board endorsed that approach in Hinds v The Queen  AC 195, 226f227b. Lord Diplock observed, at p 225h226b:
"The power conferred upon the Parliament to make laws for the peace, order and good government of Jamaica enables it not only to define what conduct shall constitute a criminal offence but also to prescribe the punishment to be inflicted on those persons who have been found guilty of that conduct by an independent and impartial court established by law: see Constitution, Chapter III, section 20(1). The carrying out of the punishment where it involves a deprivation of personal liberty is a function of the executive power; and, subject to any restrictions imposed by a law, it lies within the power of the executive to regulate the conditions under which the punishment is carried out. In the exercise of its legislative power, Parliament may, if it thinks fit, prescribe a fixed punishment to be inflicted upon all offenders found guilty of the defined offence as, for example, capital punishment for the crime of murder."
Although Lord Diplock's comment on capital punishment for the crime of murder was obiter, it has stood for over 25 years and we see no reason to question the Board's view that fixing a mandatory death sentence for murder is an exercise of the legislative function which does not offend against the separation of legislative and judicial powers inherent in the Caribbean constitutions. The real ground for a constitutional challenge to the prescription of a mandatory death sentence for murder is not that it contravenes the separation of powers but rather that, for the reasons given in Reyes v The Queen  2 AC 235, it offends against the prohibition on cruel and unusual punishment in section 5(2)(b) of the Constitution. But, as we have held, section 6(1)(a) precludes the appellant from advancing that argument.
Decision on the Appeal
- For these reasons, which are in substance the same as those of the Court of Appeal, we would dismiss the appeal.