Excerpt of Justice Ivor Archie’s judgment
THE Applicants' (Winston Peters and William Chaitan) contention is that in so far as Section 48 of the Constitution might deny them the opportunity to be elected to the House of Representatives, it violates their right to equal treatment under the law because it unfairly discriminates between themselves and other citizens of Trinidad and Tobago. The first area of inequality is said to be between themselves and citizens who may acquire foreign citizenship after being elected to the House and still be allowed to remain in the House. That is simply wrong. Section 49(2)(a) provides that a member shall vacate his seat where any circumstances arise that if he were not a member would cause him to be disqualified under section 48(1).
In so far as any inequality is alleged as between themselves and persons who hold dual citizenship by birth or descent, the short answer is that such persons are not similarly circumstanced. That argument presumes that in imposing the restriction in Section 48(1), Parliament did not validly differentiate between citizens falling into different classifications.
During the hearing of the present motions, it became clear that one of the issues which concerned the parties was whether Parliament intended to disqualify persons who voluntarily acquire another citizenship, otherwise than by marriage, by reason of any oath of allegiance incidental to that process. For the reasons which have been set out in this judgment, I have concluded that the Election Court has the jurisdiction to interpret section 48 of the Constitution. It is therefore not necessary for me to decide whether that is the correct interpretation. For the purposes of these motions, the issue is solely whether, if so, that would offend against the right to equality before the law guaranteed by section 4 of the Constitution.
Section 4 of the Constitution prohibits discrimination by reason of race, origin, colour, religion or sex. The concept of "equality before the law" does not prohibit Parliament from discriminating on other grounds.
It is significant that upon the determination of an election petition, the court reports back to Parliament by way of a certificate in writing and may in certain circumstances make a special report to the Speaker in respect of matters arising in the course of the trial. It is the function of Parliament to set qualifications for its membership. It is the function of the courts, if called upon, to interpret what Parliament has enacted and to determine whether the conditions laid down by Parliament have been satisfied. In doing so the court is exercising a power delegated by Parliament. Since there is no fundamental right to be elected, if Parliament chooses to impose restrictions on qualification for membership that are not based on race, origin, colour, religion or sex, the court cannot say that it is acting in breach of section 4 of the Constitution.
In any event, the applicants' arguments have been met with another fatal objection. The 1976 Constitution was brought into effect under and by virtue of section 3 of the Constitution of the Republic of Trinidad and Tobago Act. That enactment had the effect of revoking the Trinidad and Tobago (Constitution) Order-in-Council 1962 and replacing it with the present Constitution.
Under section 18 of that Act, any enactment made by Parliament under or by virtue of the former Constitution and not previously declared by a competent Court to be void by reason of inconsistency with sections 1 and 2 thereof is deemed to have been validly passed and to have full force and effect as part of the law of Trinidad and Tobago immediately before the coming into effect of the 1976 Constitution.
Sections 1 and 2 of the former Constitution correspond to sections 4 and 5 of the present Constitution. According to section 6 of the present Constitution:
"6. (1) 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..."
Section 48(1)(a) of the present Constitution is the same as section 31(1)(a) of the 1962 Constitution and would therefore have taken effect as existing law upon the coming into effect of the present Constitution, no successful challenge ever having been mounted against the validity of that provision. Even if it offended against section 4, therefore, it would not be open to the Applicants to challenge its validity. Furthermore, to the extent that any of the provisions of the present Constitution are inconsistent with section 4, they have been passed by the necessary majority, as is declared by and certified under the Constitution of the Republic of Trinidad and Tobago Act.
It must be emphasised that in coming to this conclusion, the Court is not deciding whether on a proper interpretation of Section 48(1) the Applicants were disqualified. That is the function of the Election Court. The only issue at this stage is whether the constitutionality of that provision is open to challenge under Section 4(b).
The answer is no.
Ultimately, the purpose of each of the present motions is to protect the applicant's "right" to remain in Parliament. That is not a fundamental right. Even though it was contemplated that the Rules Committee would make rules for the purpose of regulating election petition proceedings under Part VI of the RPA, those rules would have been for the purpose of protecting rights conferred by Chapter 4 of the Constitution and not by Chapter I. Therefore, the failure to make rules cannot, by itself, amount to a deprivation of such procedural provisions as are necessary to give effect and protection to any fundamental rights.
The Election Court constituted under section 52 of the Constitution and Part VI of the RPA is the High Court. As such, it has the ability to hear and determine all issues raised in respect of the validity of the applicants' elections, including challenges to its jurisdiction to try any petition presented to it.
The failure of the Rules Committee to make rules does not deprive the Court of its jurisdiction. It may resort to the former procedures of the House of Commons committees, the Rules of the Supreme Court and its inherent jurisdiction to regulate the procedure for entertaining and determining election petitions.
The right to stand for election, fundamental though it is to a democratic society based on the principle of elected representative government, is not one of the "fundamental rights" guaranteed under the Constitution.
Section 14 is not a general interpretation section. It can only be invoked where there is an actual or threatened breach of a fundamental right.
The applicants have come to the High Court via section 14 of the Constitution for relief in response to a complaint about the validity of their election, a matter in respect of which Parliament has specifically provided an avenue for adjudication under section 52 of the Constitution and Part VI of the RPA.
This Court is in no better position than the Election Court to decide the matters raised by the petitions. Indeed, in the absence of any actual or threatened breach of a fundamental right, there is no basis for granting any relief, particularly if the Election Court is properly seized of the petitions. The only practical difference from the applicants' point of view is that under section 14 there is an ultimate right of appeal to the Privy Council whereas under section 52 the appeal process stops at the Court of Appeal.
It cannot seriously be suggested that one avenue of redress affords the applicants due process and the protection of the law while the other does not. The constitutional motions are misconceived and accordingly they are both dismissed.
The applicants are to pay the costs of their respective motions to the first and second respondents, certified fit for one senior and two junior counsel.
Full text of the Judge's judgment - Online Forum
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