The Constitution of Trinidad and Tobago Part 2: Bill of Rights and Separation of Powers
Under the law of Trinidad and Tobago, the Constitution of the Republic of Trinidad and Tobago, Chapter 1:01 rests on two structural pillars: an entrenched Bill of Rights in Sections 4 and 5, and the doctrine of separation of powers distributing authority between the Executive, Legislature, and Judiciary. Section 6 saves most pre-1976 laws from rights challenges; Section 14 grants every person the right to apply to the High Court for redress where a fundamental right has been infringed. Together these provisions transform constitutional rights from political promises into legally enforceable guarantees.
This article extends the earlier overview of fundamental rights and concentrates on three areas often misunderstood: the operative limits of Sections 4 and 5, the scope of the savings clause, and how courts use separation of powers to discipline executive and legislative action.
What Are Sections 4 and 5 of the Constitution of Trinidad and Tobago?
Section 4 of the Constitution of the Republic of Trinidad and Tobago, Chapter 1:01 is the catalogue of fundamental rights and freedoms. It opens with the words "It is hereby recognised and declared" — language signalling that these rights pre-existed the Constitution and were not created by it. The courts therefore read Section 4 as an acknowledgment of pre-existing common law and natural-law freedoms, not a closed statutory list.
Section 5 is the structural lock that gives Section 4 its bite. It forbids Parliament from passing any law that abrogates, abridges, or infringes a Section 4 right unless the law is passed by a majority of not less than three-fifths of all members of each House. A simple majority is constitutionally insufficient.
In practice, this is one of the most commonly misunderstood features of the Constitution. Many assume the Government of the day can legislate as it pleases. It cannot — not where fundamental rights are at stake. Even the supermajority is not unlimited: the courts retain power to strike down legislation that is harsh and oppressive or destroys, rather than limits, a fundamental right.
The Section 4 / Section 5 Mechanism at a Glance
| Question | Constitutional Answer |
|---|---|
| Does Parliament need a special majority for ordinary legislation? | No — a simple majority is sufficient for laws that do not infringe Section 4 rights |
| Can Parliament limit a Section 4 right by simple majority? | No — Section 5 requires three-fifths of all members of each House |
| Does the three-fifths majority guarantee the law's validity? | No — the courts can still strike down "harsh and oppressive" legislation |
| Can Parliament abolish a Section 4 right entirely? | No — fundamental constitutional principles cannot be destroyed by any majority |
What Does Section 6 (the Savings Clause) Actually Save?
The savings clause is one of the most consequential — and most contested — provisions in T&T constitutional law. Section 6 of the Constitution of the Republic of Trinidad and Tobago, Chapter 1:01 (with antecedents in Section 13) preserves pre-existing written law from challenge under Sections 4 and 5. The framers' intention was practical: in 1976, the Republic could not expose every colonial-era statute to immediate invalidation.
Under the savings clause, any written law in force immediately before the Constitution came into operation continues to have effect and shall not be held inconsistent with the fundamental rights provisions — but the Privy Council has held that this protection does not extend to laws whose operation amounts to cruel and unusual punishment or fundamental abuse of constitutional values.
The leading authority is Jay Chandler v The State (No. 2) [2022] UKPC 19. The Privy Council held that the mandatory death penalty for murder — a pre-1976 statutory rule that would, on its face, be saved — was nonetheless unconstitutional as inhuman punishment. The savings clause cannot insulate a law whose practical operation strikes at the constitutional core. Section 6 is a transitional shield, not a permanent immunity.
How Does Section 14 Allow a Citizen to Enforce Their Rights?
Section 14 of the Constitution of the Republic of Trinidad and Tobago, Chapter 1:01 is the enforcement engine. It provides a direct route to the High Court — bypassing the leave requirement and the 3-month time limit imposed in judicial review under the Judicial Review Act, Chapter 7:08.
Under Section 14, any person who alleges that any of the provisions of Sections 4 or 5 has been, is being, or is likely to be contravened in relation to him may apply to the High Court for redress by originating motion — and the High Court has original jurisdiction to make such orders, issue such writs, and give such directions as it considers appropriate.
The procedure was given practical force by the Privy Council in Maharaj v AG of Trinidad and Tobago (No. 2) [1978] UKPC 3 ([1979] AC 385). The Board confirmed that monetary damages — constitutional damages — are an "appropriate" remedy for breach of an entrenched right. Maharaj (No. 2) arose from the wrongful committal of a barrister for contempt of court without being told the grounds; the State was held liable for the resulting deprivation of liberty. The principle remains the cornerstone of constitutional remedies in T&T.
Remedies Available Under a Section 14 Constitutional Motion
| Remedy | When It Is Granted |
|---|---|
| Constitutional damages | Where a fundamental right has been infringed and compensation is appropriate (per Maharaj (No. 2)) |
| Declaration | Where the applicant seeks an authoritative pronouncement of the constitutional position |
| Injunction | Where an ongoing or threatened infringement must be restrained |
| Mandatory order (mandamus) | Where a public authority must be compelled to perform a constitutional duty |
| Any other order | The High Court has the widest discretion under Section 14 to fashion appropriate relief |
What Is the Doctrine of Separation of Powers in Trinidad and Tobago?
The separation of powers is not stated in a single section of the Constitution of the Republic of Trinidad and Tobago, Chapter 1:01. It is a structural principle that the courts read into the constitutional architecture as a whole. The Constitution allocates governmental authority among three branches:
- The Legislature — the Parliament of Trinidad and Tobago, comprising the Senate and the House of Representatives, makes the law.
- The Executive — the President, Cabinet, and the public service — administers the law and conducts government business.
- The Judiciary — the Judiciary of Trinidad and Tobago, headed by the Chief Justice — interprets the law and adjudicates disputes.
Each branch has functions the others cannot lawfully assume. Parliament cannot decide individual cases. The Executive cannot legislate without proper delegation. The Judiciary cannot draft statutes or set policy. Courts in T&T have consistently held that the separation of powers operates as a substantive limit on what each branch may do.
The leading T&T decision is Suratt v AG [2007] UKPC 55 ([2008] 1 AC 655). The Privy Council was asked whether the Equal Opportunity Tribunal under the Equal Opportunity Act 2000 violated separation of powers by exercising judicial functions through lay assessors. The majority held the Constitution contemplated judicial bodies other than the High Court exercising certain judicial functions, provided the tribunal did not significantly derogate from the High Court's jurisdiction. The Act was upheld and ordered to be implemented without further delay.
How Do the Courts Review Executive Action Under the Constitution?
Judicial review is the practical face of separation of powers — the mechanism by which the courts hold the Executive to constitutional limits. In Trinidad and Tobago, two parallel routes exist: judicial review under the Judicial Review Act, Chapter 7:08 (leave required; three-month limit) and the constitutional motion under Section 14 (no leave; no three-month bar) where the executive act has infringed a fundamental right.
The grounds track the classic categories — illegality, irrationality, procedural impropriety — applied through the constitutional lens. The right to consult counsel was confirmed in Thornhill v AG of Trinidad and Tobago [1981] AC 61. The Privy Council, with Lord Diplock writing, held that a person detained by the police is entitled to consult a legal adviser of his choice, and the executive cannot lawfully deny that right. Thornhill remains foundational on executive police power and constitutional liberty.
Which Landmark T&T Constitutional Cases Should Every Practitioner Know?
Based on decisions of the High Court, Court of Appeal, and Privy Council on appeal from T&T, four cases form the spine of modern constitutional jurisprudence on the Bill of Rights and separation of powers.
| Case | Citation | Why It Matters |
|---|---|---|
| Maharaj v AG (No. 2) | [1978] UKPC 3; [1979] AC 385 | Established constitutional damages as an available remedy for breach of an entrenched right — the cornerstone of monetary redress |
| Thornhill v AG | [1981] AC 61 | Confirmed the constitutional right of a detained person to consult counsel and the limits of executive police power |
| Suratt v AG | [2007] UKPC 55; [2008] 1 AC 655 | Leading separation-of-powers decision; Parliament may establish tribunals exercising adjudicative functions provided they do not significantly derogate from the High Court's jurisdiction |
| AG v Tobago House of Assembly | [2025] UKPC 8 | Examined the constitutional status and financial autonomy of the Tobago House of Assembly; constitutional architecture is justiciable |
More recently, Keros Martin & Ors v DPP [2025] UKPC 2 clarified appellate jurisdiction over bail refusals in murder cases, and Stuart v AG [2022] UKPC 53 addressed limits on executive discretion in criminal justice.
What the Law Says in Trinidad and Tobago
| Authority | Relevance |
|---|---|
| Constitution of the Republic of Trinidad and Tobago, Chapter 1:01 | Section 4 declares fundamental rights; Section 5 imposes the three-fifths supermajority on legislation infringing those rights; Section 6 is the savings clause; Section 14 provides the constitutional motion procedure |
| Judicial Review Act, Chapter 7:08 | Statutory route for challenging executive action; leave required; 3-month time limit |
| Maharaj v AG (No. 2) [1978] UKPC 3 | Constitutional damages are an available remedy for breach of an entrenched right |
| Suratt v AG [2007] UKPC 55 | Parliament may establish adjudicative tribunals consistent with separation of powers |
| Jay Chandler v The State (No. 2) [2022] UKPC 19 | The savings clause does not protect pre-1976 laws whose operation amounts to cruel and unusual punishment |
| AG v Tobago House of Assembly [2025] UKPC 8 | Constitutional position and financial autonomy of the Tobago House of Assembly |
Frequently Asked Questions
What is the difference between Section 4 and Section 5 of the Constitution of Trinidad and Tobago?
Section 4 of the Constitution of the Republic of Trinidad and Tobago, Chapter 1:01 lists the fundamental rights — life, liberty, security of the person, expression, conscience, equality, and the others. Section 5 is the procedural lock: Parliament cannot pass a law infringing a Section 4 right unless it is passed by a three-fifths majority in each House. Section 4 sets the rights; Section 5 shields them from ordinary legislative override.
Does the savings clause mean every pre-1976 law is immune from challenge?
No. The Constitution preserves pre-1976 laws from inconsistency with Sections 4 and 5, but the Privy Council in Jay Chandler v The State (No. 2) [2022] UKPC 19 held that this protection does not extend to laws whose operation amounts to cruel and unusual punishment. The savings clause is a transitional shield, not permanent immunity.
How do I bring a constitutional motion in Trinidad and Tobago?
A constitutional motion is filed by originating motion in the Constitutional and Administrative Division of the High Court under Section 14 of the Constitution. It identifies the right infringed, the act said to constitute the infringement, and the remedy sought. Unlike judicial review under the Judicial Review Act, Chapter 7:08, there is no leave requirement and no three-month time limit.
What did Maharaj v AG (No. 2) decide about constitutional damages?
Maharaj v AG of Trinidad and Tobago (No. 2) [1978] UKPC 3 ([1979] AC 385) established that monetary damages are an "appropriate" remedy for breach of an entrenched right. The Privy Council awarded damages where a barrister had been wrongfully imprisoned for contempt of court without being told the grounds. The decision remains the foundation of constitutional damages in T&T.
What does the separation of powers actually prevent in Trinidad and Tobago?
The separation of powers — implicit in the Constitution — prevents any one branch from exercising the core functions of another. Parliament cannot adjudicate cases; the Executive cannot legislate without proper authority; the Judiciary cannot draft statutes. In Suratt v AG [2007] UKPC 55, the Privy Council held that statutory tribunals are permissible provided they do not significantly derogate from the High Court's jurisdiction.
Can the courts strike down an Act of Parliament in Trinidad and Tobago?
Yes. Because the Constitution is supreme, any Act of Parliament inconsistent with it is void to the extent of the inconsistency. Where an Act infringes a Section 4 right and was not passed by the Section 5 three-fifths majority, the High Court can declare it unconstitutional. Even a supermajority Act can be struck down if it is "harsh and oppressive" or destroys, rather than limits, a fundamental right.
Is judicial review the same as a constitutional motion?
No. Judicial review under the Judicial Review Act, Chapter 7:08 challenges executive decisions on grounds of illegality, irrationality, or procedural impropriety; it requires leave and must be filed within three months. A constitutional motion under Section 14 is used where a fundamental right has been infringed; no leave is required and no three-month bar applies. Only the constitutional motion automatically opens the door to constitutional damages.
Why does the Tobago House of Assembly feature in recent constitutional litigation?
The Tobago House of Assembly is recognised in the Constitution and is the subject of ongoing reform discussion on internal self-government for Tobago. In AG v Tobago House of Assembly [2025] UKPC 8, the Privy Council examined the Assembly's financial autonomy. This remains one of the most actively debated areas of constitutional reform as of April 2026.
Written by Martin George, Attorney-at-Law. Martin George is the founder and principal attorney of Martin George & Company, with more than 35 years of active legal practice in the courts of Trinidad and Tobago. He is a former Commissioner on the Law Reform Commission of Trinidad and Tobago and a member of the Prime Minister's Constitutional Committee for Internal Self-Government for Tobago. This article is published for general information and public legal education. It does not constitute legal advice. For advice on your specific situation, contact Martin George & Company.
Last reviewed: April 2026