THE TRIGGER:In the captioned Trinidad and Tobago Express newspaper's Editorial of September 4, 2009, which dealt with the public perception of the bias of the National Awards Committee, it was mentioned that:
"...Then there is the matter of the committee itself, which is made up of the Chief Justice, the three chairpersons of the various Commissions, the head of the Civil Service and two members of the public. These last three are chosen by the Prime Minister, and again this is clearly an unsatisfactory basis on which to hand out national awards..."
Strictly speaking, indeed so is the case, for regarding the appointment of Chief Justice and the members of the Public Service, Teaching Service and Elections Commissions, the constitution provides that:
- The Chief Justice be appointed after consultation with the Prime Minister and, if any, the Leader of The Opposition (http://rgd.legalaffairs.gov.tt/Laws/The%20Constitution%20folder/The%20Constitution.htm#sec102); so, too
- The members of the Public Service Commission (http://rgd.legalaffairs.gov.tt/Laws/The%20Constitution%20folder/The%20Constitution.htm#sec120); so too
- The members of the Teaching Service Commission (http://rgd.legalaffairs.gov.tt/Laws/The%20Constitution%20folder/The%20Constitution.htm#sec124); and, so too
- The members of the Elections and Boundaries Commission (http://rgd.legalaffairs.gov.tt/Laws/The%20Constitution%20folder/The%20Constitution.htm#sec71)
But, given the history of life, as one knows it, in Trinidad and Tobago, it's the Prime Minister who has total control of the National Awards Committee, since by his being the person commanding the support of the majority of members of the Electoral College, it's he who effectively decides who is appointed President.
THE RECOIL:But that's not the burning issue to me. What is recently most bothersome is my sudden inability anymore to vouch for the legality of the existing National Awards Committee, indeed of every National Awards Committee since 1983, as, through my eyes, the law is quite precise concerning how the National Awards Committee originated and how it may, over time, be reconstituted or reconfigured.
Insofar as its origins are concerned, the landmark Jamadar J. judgement of May 26, 2006, at its page 2, summarises as follows:
"...On the 26th August 1969 (with effect from the 30th August 1969) Her Majesty, Elizabeth The Second as Queen of Trinidad and Tobago, acting on the advice of the Cabinet of Trinidad and Tobago, issued Letters Patent establishing a society of honour in Trinidad and Tobago, to be known as the “Order of the Trinity,” for the purpose of “according recognition to citizens of Trinidad and Tobago and other persons for distinguished or meritorious service or for gallantry.”..." (http://www.ttlawcourts.org/Judgments/HC/jamadar/2006/HCS_2065_04DD26may06.pdf) Those Letters Patent, at clause 6, stipulate that:
6. (1) There shall be a standing National Awards Committee for the Order hereinafter called “the Committee” comprising—(a) the Chief Justice of Trinidad and Tobago who shall be the Chairman of the Committee;
(b) the Chairman of the Public Service Commission;
(c) the Chairman of the Teaching Service Commission;
(d) the Chairman of the Elections Commission;
(e) a Senior Public Officer appointed by the Prime Minister;
(f) two persons representative of the General Public appointed by the Prime Minister. Such appointment shall be for a period not exceeding three years but a person whose appointment so expires shall be eligible for re-appointment.
(2) The Committee shall have a Secretary who shall be appointed by the Prime Minister. The original Trinidad and Tobago National Awards was appointed by then Head of State, Her Majesty Queen Elizabeth the Second through her vicegerent, then Governor-General Sir Ellis Clarke, for in 1969, T&T was not yet a republic ---though the holiday's celebrated on September 24th, it became one on August 1, 1976.
On its page 3, the Jamadar judgement walks us through the transformation that the Committee underwent pertaining to who had the power to appoint its members:
"...Since 1976, with the introduction of the 1976 Republican Constitution (the 1976 Constitution) and the creation of the Republic of Trinidad and Tobago (by Act No. 4 of 1976, the Constitution of the Republic of Trinidad and Tobago Act), the prerogatives and privileges formerly vested in Her Majesty were, as of the 1st August 1976, vested in the State (the Republic of Trinidad and Tobago) and, subject to the 1976 Constitution and any other law, the President (of the Republic) was given the power to exercise those prerogatives and privileges - section 6 (1) of Act 4 of 1976. By the 1976 Constitution the President had become Head of State and Commander in Chief of the armed forces (section 22) and executive authority for Trinidad and Tobago had also been vested in the President. Thus, the President had generally replaced Her Majesty and Her Majesty’s appointee the Governor General in the roles they played under the 1962 constitutional arrangements that had previously existed in Trinidad and Tobago..." (ibid) Then, on page 16, Jamadar J. further simplifies the post-republican nuance:
"...I have already explained how the Order of the Trinity came into existence (by Letters Patent dated 26th August 1969 issued by Her Majesty Queen Elizabeth the Second). These Letters Patent were subsequently modified, pursuant to the 1976 Republican Constitution, to bring them into conformity with the provisions and changes effected by that Constitution – essentially conferring onto the President of the Republic the roles and functions of Her Majesty and the Governor General..." (ibid) Tis true that Jamadar J. was addressing the concerns raised by the applicants who were seeking a declaration that the name "Trinity Cross" be changed, since it offended the sensibilities of non-Christian citizens of T&T, but, in his researching to deliver judgement, the learned judge completely missed a crucial provision in legislation he admitted to have read in order to arrive at his signal verdict. That bit of legislation is the Constitution of the Republic of Trinidad and Tobago Act No. 4 of 1976 (Chapter 1:01), for, it was under that Act, no other, that, in 1983, the currently existing Letters Patent governing the whole issue of national awards were created. That creation burst forth when, by 1983 presidential order, the 1969 Letters Patent were amended.
At page 79 of his judgement, Jamadar J. touched on the issue this way (highlights are mine):
"...In my opinion, there can be little doubt that the Letters Patent establishing the Order of the Trinity are “existing law” as defined by section 6(3) of the 1976 Constitution (and are “law” as defined by section 3 thereof).Not only is this view supported by the official publication of the Letters Patent and the annotations accompanying it in the Constitution of the Republic of Trinidad and Tobago Act, Chapter 1:01 – which states that the Letters Patent are deemed to be issued under section 6 of the Act (which provides for the exercise of a prerogative under an “existing law”); but the actual form, language and content of the Letters Patent suggest an intention to legislate and to create rules which have the force of law..." (ibid) That his intention was to engage in an act of prerogative legislating, is, but for one salient fact, without doubt, what I believe the President intended when, in 1983, he amended the Letters Patent. As to the sanctity of his intentions? Even though Jamadar J. insists they are, I'm sure they aren't. Why so? Again, to the judgement, this time, page 78, where Jamadar J. opines:
"...As is explained by David Clark in “Principles of Australian Public Law” (2003), at paragraphs 8:23 and 8:24, the royal prerogative may be defined today as: “the residue of original royal legal power not based on statute”. Its source is considered technically to be the common law and it is not to be exercised arbitrarily, but “per legum” (by the law) and “sub modo legis” (under the law). As such, Clark speaks of offices “created by a prerogative legislation called the Letters Patent.”..." (ibid) The learned judge then goes on to make the following remarkable ---for its accuracy--- statement:
"...There is no question of the legitimacy of the exercise of the prerogative power by Her Majesty in 1969 in issuing Letters Patent to create the Order of the Trinity..."
(ibid) Had he then delved into whether, in relation to the Letters Patent, the President still had such power in 1983, the judge would have come to the same conclusion I have ---that, in 1983, the President didn't. Here's why:
The presidential amendment of the Letters Patent took place in 1983. At that time, those Letters Patent were existing law ---as the judge correctly surmised at page 79:
"...In my opinion therefore, by reason of section 6(1) of the 1976 Constitution, the Letters Patent were an existing law at the time the 1976 Constitution came into force;" (ibid)
However, in "the official publication of the Letters Patent and the annotations accompanying it in the Constitution of the Republic of Trinidad and Tobago Act, Chapter 1:01,
the 1983 amendment firmly stated that the Letters Patent are deemed to be issued under section 6 of the Act". Therefore, it follows that what that Section ---and that Section alone--- says and implies is what may be used to litmus-test such deeming.
Let's now go straight to the provisions of Section 6 of the Constitution of the Republic of Trinidad and Tobago Act No. 4 of 1976 (Chapter 1:01):
6. (1) Where under any existing law any prerogative or privilege is vested in Her Majesty the Queen or the Crown in respect of Trinidad and Tobago, that prerogative or privilege shall, on the appointed day, vest in the State and, subject to the Constitution and any other law, the President shall have power to do all things necessary for the exercise thereof.
(2) Where under any existing law any rights, powers, privileges, duties or functions are vested in or imposed on the Governor‑General, those rights, powers, privileges, duties and functions shall, on the appointed day, vest in and be exercisable by the President.
Immediately, two expressions need to be defined: "existing law" and "appointed day". Section 2 expounds:
“appointed day” means the day fixed for the coming into operation of the Constitution by Proclamation of the Governor‑General under section 4;
“existing law” means a law that had effect as part of the law of Trinidad and Tobago immediately before the appointed day;
The "appointed day" was August 1st 1976 and, so, concerning every law in operation prior to then, including the Letters Patent, it was, from that instant, made lawful for the president to make such amendments as, before August 1, 1976, the Governor-General of T&T had.
Almost forgot this: the expression "Constitution" must also be defined, for the given meaning provides the final key to cement my argument. Thus we find that Section 2 of the Constitution of the Republic of Trinidad and Tobago Act No. 4 of 1976 (Chapter 1:01) also advises:
“the Constitution” means the Constitution set out in the Schedule; (ibid) Notice the key? "the Schedule"! Schedule to what? The Schedule to the Constitution of the Republic of Trinidad and Tobago Act No. 4 of 1976 (Chapter 1:01)!!! In other words, the Constitution of Trinidad and Tobago, which declares itself to be the supreme law of Trinidad and Tobago, is not a stand-alone decree, but one ensconced in a crucible called the Constitution of the Republic of Trinidad and Tobago Act No. 4 of 1976 (Chapter 1:01).
(See: "Note on Schedule" http://rgd.legalaffairs.gov.tt/Laws/Chs.%201-2/1.01/1.01%20notes.htm)Simply put: the name of the Act that ushered us into republican status is the Constitution Act No. 4 of 1976, which comprises two pieces of legislation:
- the tractor Act ---the one which took effect on March 29, 1976 and referenced as "Chapter 1:01"--- and
- the Act which the tractor Act introduced and which is the Constitution itself ---which took effect on August 1, 1976.
The tractor Act
must be read together with the Constitution itself, then, for they are inextricably bound. To keep them at arm's length from each other is to invite constant falling into error. Which is what, apparently, has been happening for way too long.
That means one must take the big-picture view of how laws may be amended, especially since we became a republic. The current case is no different to another where, earlier I'd also called into question the official practice of not taking in the whole picture where certain public appointments are to be made.
(See: http://earlykid5rivers.blogspot.com/2008/06/senator-cannot-act-or-perform-duties-of.html)In my own experience, it was synchronous, studied reading of the two bits of law that revealed the three keys, which, used in tandem, opened the clear pathway out of the maze of doubt or shakiness I had over the Constitutional arrangements surrounding the whole business of our national awards ---sort of like the same way that
a certain power-broker, whether he was right, or wronged, once was enlightened to shy from the meat and wallow in the gravy of the constitution in order to break another on "moral and spiritual" grounds.
CLEARING THE SMOKE:And, it's the big-picture penchant of mine which directed my interest towards Section 5 of the tractor Act, thereupon to become stunned by the glaring revelation that the President was statute-barred when he purported to amend the Letters Patent in 1983!!! See here (highlights are mine.):
5. (2) The President may, by Order published in the Gazette made at any time within the period of three years next after the appointed day, make such modifications to any existing law as may appear to him to be necessary or expedient for bringing that law into conformity with the Constitution, without prejudice, however, to any powers conferred by any law upon any other person or authority to modify any existing law.
In plain English: once he was intending so to do for the purpose of attuning them to what the new republican status required, the President had up to and including July 31, 1979,
by and of himself, to make changes to any law that existed prior to the instant we shed ties to Mother England and became a sovereign Republic called Trinidad and Tobago! The instant that window closed, some person or authority
other than the President thereafter had to do it.
The explanatory notes that lie below the Greeting of those Letters are very straightforward. They openly confess:
*These Letters Patent were originally issued by Command of QUEEN ELIZABETH The Second, then Queen of Trinidad and Tobago, and have been modified in accordance with section 5 of the Constitution of the Republic of Trinidad and Tobago Act so as to be brought into accord with the Act (and the Constitution).
Furthermore, at the very end of the Letters Patent document, in reference to Section 18, this other footnote appears:
*This section was inserted in pursuance of a Cabinet decision set out in Cabinet Minute No. 3700(1) of 30th August, 1979.
THE AUTOPSY RESULTS:Is there anything more need to be added to those notes to convince anyone that the President was, therefore, statute-barred from making the amendments he made in 1983? Or that, because so he did, every National Awards Committee appointed or operating under such amended law are illegally so doing.
If I'm right on this, it would not be the first time a President was deluded into signing a document ---in 1990, under advice, one put his initials thinking that such personal markings would have in no way been construed to be his signature, thus allowing many to escape what many more thought would have been certain and swift punishment.
If only Jamadar J. had scanned a little more deeply, he'd have grabbed hold of both Section 5 (2)'s and the footnotes' import and accordingly adumbrated his assessment, for it's patent by the combined letter of both items that, in 1983, the then existing Letters Patent could
not have been amended except by the Parliament of Trinidad and Tobago.
Feel free to comment!
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PS: Someone needs to get in touch with the National Library Service of Trinidad and Tobago (NALIS) and let them know that, though we had a constitution in 1969, we did not have a 1969 Constitution. (See, "National Award Nominees" of NALIS's website at: http://library2.nalis.gov.tt/Default.aspx?tabid=121)
