Josine Johnson & Anor. v The Attorney General of Trinidad and Tobago (Trinidad and Tobago)

A regulation that discriminates by sex may nevertheless remain valid if it is an existing law protected by section 6(1) of the Constitution of the Republic of Trinidad and Tobago. Section 18 of the Constitution of the Republic of Trinidad and Tobago Act 1976 determines whether pre-1976 enactments have that status. The Act’s power to modify existing laws cannot override the Constitution or displace section 6(1). It may operate where an existing law conflicts with another constitutional provision, or where a formally connected provision requires adaptation. Regulations 52 and 58 were discriminatory but remained valid.

Josine Johnson, a police officer, and Yuclan Balwant, an employee of the San Fernando City Corporation, challenged regulations 52 and 58 as discriminatory provisions permitting the termination of married female officers whose family obligations affected their efficiency. They sought declarations under section 14 of the Constitution of the Republic of Trinidad and Tobago, including that the regulations were void under sections 2 and 4 and should be severed or construed with modifications.

Best J dismissed the applications. The Court of Appeal of the Republic of Trinidad and Tobago dismissed the appeal. The central issue before the Board was whether the regulations were invalid despite section 6(1) of the Constitution and section 18 of the Constitution of the Republic of Trinidad and Tobago Act 1976.

1. The appeal was dismissed. Lord Rodger delivered the judgment of the Board. Regulations 52 and 58 created an additional ground for dismissing female officers, rather than merely clarifying the ordinary inefficiency provisions. They reflected an assumption that married women’s family obligations might impair their professional duties. The regulations therefore discriminated by reason of sex. The applications were not premature merely because the appellants were unmarried: the regulations affected their decisions whether to marry or remarry. [7]–[10]
2. Section 18 of the Constitution of the Republic of Trinidad and Tobago Act 1976 deemed enactments made under or by virtue of the former Constitution, and not previously declared void, to have been validly made and in full force before the 1976 Constitution commenced. This applied to both sets of regulations. The statutory authority for the second appellant’s regulations did not prevent them from being enactments made under the former Constitution. [15]–[17]
3. Section 6(1) of the Constitution protected existing laws from invalidation under sections 4 and 5. Accordingly, regulations 52 and 58 remained constitutional for that purpose even though they would otherwise contravene the constitutional protection against sex discrimination. [13], [17]
4. Section 5(1) of the Act could not override or qualify section 6(1). The Constitution was supreme, while the Act was subordinate. The Board applied the approach in Matthew v State of Trinidad and Tobago [2005] 1 AC 433, read with Boyce v The Queen [2005] 1 AC 400. No modification was required because the regulations were not inconsistent with the Constitution in the relevant sense. [18]–[21]
5. The Board observed obiter that section 5(1) could operate where an existing law conflicted with a constitutional provision outside sections 4 and 5, or where an otherwise valid law was formally bound up with inconsistent provisions. Those situations did not arise here. [22]–[23]
6. Regulations 52 and 58 were valid and not inconsistent with the Constitution. Submissions on costs were to be made in writing within 21 days. [24]–[26]

1. Privy Council. The Board dismissed the appeal from the Court of Appeal: [2009] UKPC 53.
2. Court of Appeal of the Republic of Trinidad and Tobago. Warner, Kangaloo and Mendonca JJA dismissed the appellants’ appeal from Best J’s decision.
3. High Court of Trinidad and Tobago. Best J dismissed the applications for constitutional redress.