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This week’s column was prepared with assistance from Ms Dawn Palackdharry Singh, attorney-at-law and lecturer at the Cipriani College of Labour and Co-operative Studies.THE author Rosemarie Bell Antoine writes in her book Commonwealth Caribbean Law and Legal Systems, “the Constitution can be defined as a body of law containing the rules that determine the direction of the State, including the manner in which the State is organised and the body of fundamental principles according to which the State is governed.”It is the parent law by which all other laws are measured and is in essence the supreme law of the land. This latter description of the Constitution is found in the celebrated case of Collymore v AG (1967) 12 WIR 5 where it was stated:

“No one, not even Parliament, can disobey the Constitution with impunity.”

The constitution is therefore the ultimate source of power. It defines citizens’ rights and the shape of both the legal system and the political system.

T&T, unlike the UK, has a written constitution. Yes, that’s correct. The mighty Great Britain does not have a written constitution. Our Republican Constitution was enacted by Parliament on March 29, 1976, and took effect on August 1, 1976.

Part of what gives the Constitution its special status is the fact that it contains provisions for entrenchment, whereby certain of its provisions may not be altered except by a referendum or by special majority of Parliament. This entrenchment places the Constitution in a different category from that of most other ordinary legislation.

The supremacy of the Constitution is declared in Section 2:

“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.”

The Constitution also contains sections on the recognition and protection of fundamental human rights and freedoms, chapters on citizenship, chapters defining the powers of the head of state and parliament, executive powers, chapters governing the director of public prosecutions and ombudsman, chapters on the judicature, appointments to and tenure of office for numerous official posts in the country, provisions and regulations for the various service commissions and chapters on finance.

After the Constitution, legislation made and passed by parliament is second on the pyramid as a source of law in T&T. It includes laws enacted by the House of Representatives and the Senate and assented to by the president, according to specific procedures and in specific forms.

The term legislation, in our jurisdiction, refers to statutes and subsidiary or subordinate legislation comprising rules, regulations, proclamations and by-laws made under the authority of parent statutes.

However, one must bear in mind that legislation in conflict with provisions of the Constitution can and ought to be struck down by the courts as being inconsistent with the Constitution.

Descending the pyramid, one finds judicial precedents. The doctrine of judicial precedent takes effect when there are no applicable statutes or other superior law on a particular legal issue. The judge or magistrate must then look to the case law on the same or similar point set by decided cases from courts of equal or superior jurisdiction.

The rationale behind the doctrine of binding judicial precedent is that the function of the judge is not to create law, but to decide cases in conformity with existing rules set by previously decided cases, and if delivered by a court of superior jurisdiction, they are bound to apply the principles of law found in such cases in a principle called stare decisis.

The binding force of precedent is contingent upon a hierarchy of courts, and operates on the principle that the decisions of higher courts are binding on those of lower courts. Since the Caribbean Court of Justice is not yet in operation, the Privy Council stands at the apex of the judicial system of T&T as our final Appellate Court and its decisions continue to be binding on all courts below it.

Next in the structure are the Court of Appeal, then the High Courts or Superior Courts of Record, and intermediate courts such as the Chamber Courts, Master’s Courts and Registrar’s Courts. Last and of least authority are inferior courts such as Magistrates’ Courts and other inferior tribunals of record.

The resulting rule, with respect to the hierarchy of the courts, is that each lower court is bound by decisions of a court above itself in the hierarchy.

A court is sometimes persuaded by decisions of a court of equivalent status, but does not necessarily consider itself bound by such decision.

This is not an exhaustive list, but provides a general guide as to our laws and the source and hierarchy under which they operate.

©2003-2004 Trinidad Publishing Company Limited

1 Comment

  • Gerard
    Reply September 19, 2020 at 4:12 pm

    Our nation’s 44th Anniversary as a Republic is just around the corner which is this Thursday coming. So somethings may not be the same as in previous years for since we had been plagued with this COVID-19 pandemic. And unfortunately there would be no steelband and j’ouvert jump up for me to witness and enjoy.

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