In their judgment given today in Suraj and Maharaj v Attorney General of Trinidad and Tobago  UKPC 26, Lord Sales and Lord Hamblen, writing for the Judicial Committee of the Privy Council, emphasise the central role the courts now give to the concept of proportionality when considering alleged infringements of human rights.
This important case arose in the context of Trinidad and Tobago’s stringent rules imposed during the pandemic, which restricted freedom of movement, assembly and worship. It concerns the extent to which, under the Constitution of Trinidad and Tobago, the government has the power to bring about interferences with the exercise of human rights through ordinary legislation rather than by securing a super-majority in the legislature. Resolving a significant disagreement in the case law, the Judicial Committee holds that ordinary legislation may in principle impinge upon many of the fundamental rights and freedoms protected by the Constitution, as long as it pursues a legitimate aim and is proportionate to that aim. The judgment also explains that the ‘existing laws’ clause in the Constitution does not permit the government to enact subsidiary legislation that infringes fundamental rights, even if (as in this case) the enabling power pre-dates the Constitution and is in that sense an existing law.
Thomas Roe QC represented the Attorney General of Trinidad and Tobago.
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December 15, 2022