Maroc - NEWSDAY.CO.TT - A la Une - 29/Oct 09:42

Misrepresentation of Privy Council

THE EDITOR: E Galy’s recent letter on the Jason Jones case (“Privy Council going to pot?") reveals a striking and dangerous misunderstanding of constitutional law and the role of the Judicial Committee of the Privy Council. His claim that “the court was not established to change the Constitution or laws already in there” blatantly misrepresents the very architecture of a constitutional democracy governed by the rule of law. First, the Privy Council, as the apex appellate court of TT, exists precisely to interpret and enforce the Constitution. Section 2 of the Constitution declares it the “supreme law of Trinidad and Tobago” and provides that any law inconsistent with it “shall, to the extent of the inconsistency, be void.” The courts, not Parliament, are the guardians of that supremacy. Parliament may make laws, but only the judiciary determines their validity. That is the essence of constitutional separation of powers. To suggest otherwise is to invite a sly, elected dictatorship. Cast your eye on the US where the courts have sided with the executive. Second, the Jason Jones decision did not “change” the Constitution. It interpreted it, applying its express guarantees of equality, privacy, and protection of the person (sections 4 and 5). The court merely held that the colonial-era buggery and serious-indecency laws, insofar as they criminalised consensual adult acts in private, violated those fundamental rights. Far from “making law,” the court performed its constitutional duty to strike down legislation that contravened the supreme law, as mandated by section 14(1). This is the judicial function in its purest form. Third, Galy’s assertion that “the court cannot make a law inoperable once it is within the frame of the Constitution” betrays ignorance of basic constitutional adjudication. The power of judicial review, confirmed since Marbury v Madison (1803) and followed throughout the Commonwealth, gives the court authority to invalidate statutes inconsistent with the Constitution. The Privy Council, from Hinds v The Queen (1977) AC 195 to Boyce v The Queen (2004) UKPC 32, has repeatedly affirmed that it is not Parliament but the Constitution that is supreme. Judges do not “suspend” laws; they declare them void to the extent of their inconsistency, a declaratory function intrinsic to constitutional supremacy. Fourth, to say that invoking “changed times” or “new eras” is “not a formula in the Constitution” misses the point entirely. The Constitution is a living instrument, not a museum piece. This principle, reaffirmed by the Privy Council in Reyes v The Queen (2002) UKPC 11 and Matthew v The State (2004) UKPC 33, recognises that fundamental-rights provisions must be interpreted generously and purposively to reflect evolving standards of dignity and equality. That interpretative approach ensures that the Constitution protects living people, not dead ideas. What Galy presents, therefore, is not constitutional reasoning but theocratic posturing masquerading as legal argument. His entire position stems from an assumption that religious morality should dictate constitutional interpretation, an assumption wholly incompatible with the secular rule of law established by the 1976 Constitution. In TT, sovereignty lies with the people and the Constitution, not with the pulpit. The judiciary’s duty is to uphold fundamental rights, not enforce scripture. When religious dogma seeks to displace constitutional supremacy, it ceases to be faith and becomes political extremism. Finally, the claim that the judiciary’s action “mutates” civil and criminal law is legally absurd. When a law is declared unconstitutional, it ceases to have effect ab initio (from the beginning) to the extent of the inconsistency, ensuring the coherence, not mutation, of the legal system. The judiciary thus preserves constitutional order; it does not subvert it. In short, Galy’s argument is an affront to constitutional literacy. The Privy Council did not overreach; it fulfilled its solemn duty to uphold the supremacy of the Constitution and the inviolable rights of citizens. That is not judicial activism, it is judicial adherence to the rule of law. The tragedy is not that the Privy Council acted beyond its remit, but that public discourse continues to be polluted by those who mistake constitutional review for political interference. It is the mark of an uneducated mind to see judicial independence as rebellion. MOHAN RAMCHARAN Birmingham, UK The post Misrepresentation of Privy Council appeared first on Trinidad and Tobago Newsday.