Dominic Suraj and 4 others v Attorney General of Trinidad and Tobago (Trinidad and Tobago)

Fundamental rights under the Constitution of Trinidad and Tobago are qualified rights. A measure interferes unlawfully only where the interference is disproportionate to a legitimate aim. The ordinary proportionality inquiry considers the importance of the objective, rational connection, less intrusive alternatives and fair balance. Constitutional emergency and super-majority provisions apply a more generous version of proportionality, with greater weight given to the democratic judgment of the state. Public-health powers under pre-existing legislation may operate alongside constitutional emergency powers, but regulations made under them remain subject to constitutional rights. An existing-law savings clause does not save future subordinate legislation. Criminal rules incorporating guidelines must be sufficiently certain; advisory guidance is not automatically converted into criminal law.

Two conjoined appeals arose from challenges to Covid-19 gathering restrictions made by the Minister of Health under section 105 of the Public Health Ordinance 1940. The Suraj appellants challenged a rule limiting public gatherings to five persons. Mr Maharaj challenged a rule limiting gatherings to ten persons, subject to higher attendance limits for religious gatherings complying with Ministry of Health Guidelines.

The High Court dismissed the Suraj claim. In Maharaj, it granted limited relief concerning the alleged criminalisation of breaches of the Guidelines. The Court of Appeal dismissed the Suraj appeal and dismissed Maharaj’s appeal while allowing the Attorney General’s appeal. The central issues concerned proportionality, the relationship between the Ordinance and constitutional emergency powers, the existing-law savings clause, constitutional supremacy, and legal certainty.

Appeals dismissed. Lord Sales and Lord Hamblen delivered the joint judgment, with which Lord Reed, Lord Hodge and Lady Rose agreed.

1. The rights in section 4 of the Constitution of Trinidad and Tobago are qualified rather than absolute. The words in section 5(1) describe breach of a right and do not mean that every interference is unconstitutional. The Board reaffirmed Suratt v Attorney General of Trinidad and Tobago [2008] AC 655, whose proportionality ruling formed part of its ratio.
2. The ordinary proportionality test asks whether the objective is sufficiently important, whether the measure is rationally connected to it, whether a less intrusive measure could have been used, and whether a fair balance has been struck. The Covid-19 Rules pursued the legitimate aim of protecting life and public health. Having regard to scientific advice, uncertainty concerning transmission, urgency, continuing review and available procedural protection, they were proportionate.
3. The Ordinance and the constitutional emergency regime operate alongside one another. Sections 7 to 12 are not an exclusive lex specialis code. Regulations made under the Ordinance must nevertheless comply with section 4 rights.
4. Although unnecessary to the result, the Board held that section 6 would not save the Rules if they infringed section 4. The Rules were new subordinate legislation, not existing law. Vires under the Ordinance and constitutionality were distinct questions.
5. General notions of sovereign democracy and constitutional supremacy could not be detached from the specific constitutional provisions. Delegating power to a Minister to make subordinate legislation was constitutionally permissible, subject to review for consistency with the Constitution.
6. Legal certainty required criminal conduct to be sufficiently clear in advance. Applying Attorney General of the Turks and Caicos Islands v Misick [2020] UKPC 30 and R v Rimmington [2005] UKHL 63, the Religious Gatherings Rule made the 36-square-foot attendance limit mandatory. Other provisions of the Guidelines were advisory. The offence still required attendance above the permitted number without reasonable justification. The Rule was therefore sufficiently certain and lawful.

1. Privy Council: On 20 June 2022, both appeals were dismissed.
2. Court of Appeal of the Republic of Trinidad and Tobago: On 20 April 2021, the Suraj appeal was dismissed. In Maharaj, the appellant’s appeal was dismissed and the Attorney General’s appeal was allowed.
3. High Court: On 11 September 2020, Boodoosingh J dismissed the Suraj claim. In Maharaj, he declared the regulations unlawful only to the extent that they made breach of the Guidelines a criminal offence and dismissed the remaining claims.