Last week, during the consideration of the Miscellaneous Provisions (Marriage) Bill 2016, the Attorney General sought the removal of the Preamble to the bill as well as the certificate that confirmed that Parliament was being asked to enact the legislation by a three-fifths majority because it was deemed to be infringing certain human rights provisions in sections 4 and 5 of the Constitution.
This has created a firestorm of controversy with the Attorney General saying that he is prepared to take the risk to expose the bill to possible legal action in court. On the other side of the equation, the Opposition has argued that the manner in which the Parliament was blindsided by this decision of the Attorney General at the committee stage of the bill raised red flags about legislating by tactics and infringing human rights in the process.
In order to understand this controversy, it is important to appreciate how T&T came to have the Canadian Bill of Rights 1960 as its model human rights.
Firstly, T&T is the only Commonwealth Caribbean country with the Canadian Bill of Rights 1960 in its Constitution.
This came about through proposals advanced by the Bar Association of T&T at the Queen’s Hall conference over the period 25-27 April, 1962. The President of the Bar Association at that time, Mr (later Sir) Hugh Wooding made a plea for the adoption of the Canadian Bill of Rights, suitably amended, to replace the model of the European Convention on Human Rights that was included in the Draft Constitution for T&T’s Independence.
Mr Wooding said, inter alia:
“Surely if we find that the principle or the form or the contents of the Canadian Bill of Rights is such as can be acceptable generally, we can adapt it to circumstances. We can surely adapt the thing as at the present time this Draft Constitution has taken a number of its provisions from precedents which have gone before. We have adapted things, amended them, added certain things, deleted certain things, and in the same way we can take the Canadian Bill of Rights and adapt them to suit us, and I do not see why we should be limited to choosing the Canadian Bill of Rights as it is or refusing to consider it altogether.
I put forward, on behalf of the Bar Association, that it should be taken as a model, and it should be used as a means whereby we can help to shape our thinking in the matter, modifying it to the extent that may be necessary, and remembering also that this Canadian Bill of Rights is something which came into existence in 1960 and forms no part of the Constitution of Canada.”
The proposals advanced by Mr Wooding and the Bar Association of T&T were considered by the Cabinet, together with other proposals made at the meeting. The chairman of the Queen’s Hall Conference made the following statement at the commencement of the proceedings on Friday April 27, 1962:
“I am happy to be in a position to inform you, on the authority of the Cabinet, that your written comments and your suggestions made in this Hall have received preliminary consideration. Further detailed consideration will of course be given to them but already certain decisions have been taken. These decisions are that at the Joint Select Committee to begin on Monday the Government representatives will propose :…..(c) the substitution for Chapter II of a Bill of Rights along the lines of the Canadian Bill of Rights with appropriate modifications including the introduction of safeguards. (Applause).”
This model was retained when T&T became a republic in 1976.
What we also have to understand is that the model comes with three levels of safeguards which are (i) an admission to Parliament that the bill will be inconsistent with the human rights provisions in the Constitution; (ii) a special three-fifths majority is required in both Houses of Parliament; and, (iii) after the bill is passed, it can be challenged in court on the ground that it is not reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.
These are critical to ensure that human rights are not infringed by Parliament without checks and balances. What happened last Tuesday in the Marriage Bill was that the Government made a split decision to decide that the bill was suddenly deemed to be no longer infringing human rights and, tactically, the certificate and the preamble to the bill were removed and it was converted to a simple majority bill.
This precedent is dangerous, because in future, if there are any items of legislation that infringe human rights, this Government appears to want to avoid consultation with the Opposition in order to step on those rights and force any affected party to spend their money to go to court to challenge it.
This is ominous and it will also be costly to the taxpayer in the long run. This approach should be stopped now.