| TRINIDAD AND TOBAGO — Constitution — Salaries Review Commission — Elected members of House of Representatives unable to take oath for procedural reason — Whether members entitled to payment of salary — Constitution of Trinidad and Tobago Act (Act No 4 of 1976), Sch, ss 140, 141
Sharma and others v Attorney General of Trinidad and Tobago [2007] UKPC 42
PC: Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry and Lord Carswell: 20 June 2007
The Constitution of Trinidad and Tobago by implication conferred on an elected member of the House of Representatives a right to be paid a salary enforceable from the day after the general election poll if the member present and willing to take the oath was thereafter, for any procedural reason, denied the opportunity to do so.
The Judicial Committee of the Privy Council so held when allowing an appeal by the 18 appellants from the decision of the Court of Appeal of Trinidad and Tobago.
A general election held in Trinidad and Tobago on 10 December 2001 yielded an equal number of seats in the House of Representatives to the People’s National Movement party and the United National Congress party, each party winning 18 seats. The 18 appellants were all elected members of the UNC. The President, acting under section 76(1)(b) of the Constitution, appointed the leader of the PNM as Prime Minister on 24 December 2001 who, in turn, appointed as ministers the other 17 PNM members of the House. On appointment all ministers became entitled to ministerial salaries. No complaint was made by the appellants about those ministerial appointments or the payments to which those appointed became entitled. Pursuant to a presidential proclamation the new Parliament met for the first time after the general election on 5 April 2002. On that day and the following day the House attempted but failed to elect a Speaker. Because of the equality of votes on each side of the House there was no majority in favour of any member put forward by either party, and no majority in favour of any outside candidate. There was thus an impasse. On 6 April 2002 Parliament was prorogued. On 28 August 2002 Parliament met again and the House again tried to elect a Speaker, but it remained deadlocked and was unable to make an election. On 30 August 2002 the President dissolved Parliament, and a general election was held on 7 October 2002. The PNM won a clear majority of seats, and the previous deadlock was not repeated. But the appellants were aggrieved: because no Speaker had been elected in the previous Parliament they had been unable to take the oath of allegiance and the House authorities held that they were not entitled to draw salary. The appellants were the more aggrieved because their PNM opponents, all in receipt of ministerial salaries, suffered no comparable detriment.
The appellants brought proceedings by way of motion for constitutional redress. The issue was whether the appellants were entitled to remuneration as members of the House of Representatives from 11 December 2001 to 6 October 2002. On 24 March 2005 Bereaux J held that they were not so entitled. On 17 March 2006 the Court of Appeal (Sharma CJ, Warner and Mendonca JJA) affirmed that decision.
LORD BINGHAM OF CORNHILL, giving the judgment of the Board, said that the Constitution was, by s 2, the supreme law of Trinidad and Tobago and any other law inconsistent with it was, to the extent of any inconsistency, void. Section 4 gave constitutional protection to certain listed rights. Section 14 provided for redress where a constitutional right had been contravened. The Board accepted that neither the Constitution nor any other legislation conferred on members of the House an express right to be paid as members. While ss 140–141 of the Constitution conferred no express right of payment, they assumed that the Salaries Review Commission would have salaries to review, and it could not be supposed that ministers or holders of offices would perform their important functions without payment. Thus the clear premise of ss 140–141 was that salaries, varied from time to time, would be paid. British parliamentary practice would suggest, as the courts below held, that the taking of the oath was a necessary precondition of the right to payment of salary as a Member of Parliament. But British parliamentary practice offered no guidance in the unique parliamentary situation which occurred in Trinidad in 2001–2002. The Board was referred to no occasion, and was aware of none, on which it had proved impossible to elect a Speaker of the House of Commons, which election was ordinarily (following inter-party discussion) a relatively uncontentious matter. There was thus no British precedent for a situation in which members, present in person and willing to take the oath, were denied the opportunity to do so by the lack of a Speaker, thereby losing their entitlement to payment as members. So it was necessary to infer what the framers of the Constitution would have intended, had they foreseen the extraordinary and obviously unintended contingency. It must, in the Board’s opinion, be inferred that the framers of the Constitution intended the parliamentary system to operate in a way which, subject to the constraints of democratic choice and adversarial politics, was fair and even-handed as between competing partisan interests. In the present instance, the PNM could not be accused of abusing power or oppressing the UNC members in any way relevant to the appeal. But the result must strike any objective onlooker as grossly unbalanced, the members on one side of an equally divided house all receiving ministerial salaries and the members on the other receiving (apart from minor allowances) no remuneration at all. The conclusion must be that the right to receive salary as an elected member of the House was enforceable as from the day after the general election poll if a member present and willing to take the oath was thereafter, for any procedural reason, denied the opportunity to do so. The Constitution by implication conferred on members of the House a right to be paid. As a right conferred by the Constitution it was a right entitled to constitutional protection. There could be no objection in principle to a rule which ordinarily treated the taking of an oath of allegiance at the outset of a new session as a precondition of receiving salary. But the constitutional right to payment was emasculated if a duly elected member, present in the House and willing to take the oath and participate fully in the business of the House, was denied payment because a procedural rule, outside the control of the member, prevented the taking of the oath. In such a situation the procedural rule must yield to the stronger imperative of the constitutional right.
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