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A case brief - Sanatan Dharma v AG (T&T)

Facts: A national award society was set up in 1969 that would accord recognition to citizens of Trinidad and Tobago by conferring the Trinity Cross of the Order of Trinity. The Distinguished Society of Trinidad and Tobago was set up following the issuance of a Letters Patent from Her Majesty the Queen on 26 August 1969. In 1994 a constitutional motion was filed at the High Court by the appellants that claimed discrimination against non-Christians.

Procedural History:

In 2006 the trial judge dismissed the case and held that while the appellants were entitled to their findings of a constitutional breach, the Letters Patent must be deemed to have been existing law.

In 2007, the appellants appealed the Trial Judge’s decision to the Lordship’s Board.

In 2008 the State changed the name of the Trinity Cross and the Order of Trinity to The Order of the Republic of Trinidad and Tobago and The Distinguished Society of Trinidad and Tobago respectively.

Issues:

a) Substantive Issue: 1. Whether or not the Letters Patent that was the basis for the Order of Trinity was part of existing law within the Constitution. 2. Notwithstanding the State’s subsequent replacement of the Trinity Cross and the Order of Trinity, whether the period during which it existed was discriminatory.

b) Procedural Issue: The lower court’s findings were guided by the sections 4(b), (d) and (h) of the Constitution of 1976 which is claimed to be an infringement on sections 1(b), (d) and (h) of the 1962 Constitution.

Held:

The appellants are entitled to a declaration that the creation of the Trinity Cross of the Order of Trinity established by the Letters Patent given on 26 August 1969 breached their right to equality under section 4(b), their right to equality of treatment under section 4(d) and their right to freedom of conscience and belief under section 4(h) of the Constitution of Trinidad and Tobago 1976.

That the decision would not apply retrospectively to any awards made under the system that the Letters Patent established before the date of judgement.

Ratio decidendi:

1. The issue of the Letters Patent was not exempt from scrutiny as it was not an enactment within the meaning of section 18 of the 1976 Act and was an infringement of rights and freedoms of members of the Hindu and Muslim communities in Trinidad and Tobago. 2. The appellants only challenged the constitutionality of the Award after it was brought to this court whereby it was suggested that constitutionality is determined under the 1962 Constitution, and therefore the retrospective effect was undesirable.

Concurrence:

1) The application of enactment under section 18 was doubtful but accepted. 2) The letters patent involved an executive act, therefore capable of being declared unconstitutional in so far as it breached the appellants’ rights under section 4 of the 1976 Constitution. 3) No legal consequence of the Order of Trinity was provided, and therefore no legal right or duty was involved. 4) The use of the Australian publications (by the Board) of letters patent was not accepted as relating to ratio decidendi as the Australian publication treated all letters patent as an ancient form of lawmaking yet cite the Australian constitution’s section for executive power of the Crown.

Obiter dicta:

The concurrent judge pointed to the difficulty in seeing how the Crown could in 1969 retained any relevant prerogative legislative power to issue letters patent. On the Crown grants constitutional power to one of its territories, there is no prerogative power to legislate by the Crown.