The limitation of Fundamental Rights and Freedoms in Trinidad and Tobago

As stated by Bereaux JA in Francis and another v the State of Trinidad and Tobago (2014) 86 WIR 418, the rights conferred under sections 4 and 5 of the Constitution of Trinidad and Tobago are not absolute – they must yield to the public interest.

The situation is unique in Trinidad and Tobago as section 13 of the Constitution provides the creation of ‘Special Acts’ that may be enacted on the basis that they are reasonably required even if inconsistent with the rights and freedoms enshrined in the Constitution.

Special Acts are embedded with a presumption of constitutionality that deems it reasonably justifiable in a society that has proper respect for the rights and freedoms of the individual citizen in Trinidad and Tobago.

To challenge the constitutionality of a Special Act, one must argue that it is not reasonably justifiable. There are two approaches to testing the reasonableness of a Special Act.

The first emerges from Northern Construction and stipulates that we must determine (i) whether the legislative objective is sufficiently important to justify limiting a fundamental right, (ii) whether the measures designed to meet the legislative objective are rationally connected to it; and (iii) whether the means used to impair the right or freedom are no more than necessary to accomplish the legislative objective.

The second stems from Francis which requires assessing whether the limitation measure is reasonably justified when measured against the core features and standards of a democratic society.