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Against the background of recent attacks on the Independent senators, I outlined last week the two constraints on three-fifths special majority legislative power contained in our Constitution.
I conclude the examination of these constraints this week. First, however, I pursue the question why such constraints are necessary.
Copyright: Office of the Parliament 2025.
Next week, I will examine the related constraints against the normalisation of periodic states of emergency.
There are countries where leaders were freely and fairly elected but who subsequently turned the democracies that elected them into countries in which democratic processes were stifled.
The platform for doing so is frequently the frustration of the electorate at (among other things) severe socio-economic imbalances, intense feelings of subjection to unfairness and runaway crime and lawlessness. These conditions breed a desire for a “strongman”.
(via UNC.)
The slide from democracy to autocracy and oppression is well documented. It is frequently termed “democratic backsliding”.
Kim Lane Scheppele is the Laurance S Rockefeller professor of Sociology and International Affairs at Princeton University’s Woodrow Wilson School and University Center for Human Values.
A synopsis of her description on how democracy is lost, contained in an essay entitled Autocratic Legalism, published in the University of Chicago Law Review, March 2018, is set out below:
Photo: Getty Images.
“Buried within the general phenomenon of democratic decline is a set of cases in which charismatic new leaders are elected by democratic publics and then use their electoral mandates to dismantle by law the constitutional systems they inherited.
“These leaders aim to consolidate power and to remain in office indefinitely, eventually eliminating the ability of democratic publics to exercise their basic democratic rights to hold leaders accountable, and to change their leaders peacefully.
“Because these ‘legalistic autocrats’ deploy the law to achieve their aims, impending autocracy may not be evident at the start. But we can learn to spot the legalistic autocrats before autocratic constitutionalism becomes fatal.”
Photo: J Scott Applewhite/ AP.
This is the context within which we should consider carefully any proposed impairment of the fundamental individual rights and freedoms protected by the sections 4 and 5 of the Constitution.
Section 13 of our Constitution permits an Act of Parliament passed by a special majority and which infringes those fundamental rights to take effect unless the Act is “shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual”.
As already pointed out, the first constraint on three-fifths special majority legislation is that, if the Opposition votes against the legislation in the Senate, its successful passage requires the votes of at least four Independent senators.
Photo: Office of the Parliament 2025.
Once the legislation is passed, the second potential constraint is the possibility of a challenge to the legislation in court and an order setting it aside on the basis of the test of not justifiable, as prescribed in section 13 of the Constitution.
There is precedent for success in the courts. For example, in the Akili Charles case it was confirmed in 2022 that a blanket ban on the grant of bail in murder cases—despite the heavy burden involved in satisfying the court—was “not reasonably justifiable in a society that has proper respect for the rights and freedoms of the individual”.
Simply summarised, the constitutional constraints on a government with a three-fifths majority indicate that such a government is not entitled “to mash up de place”.
Photo: Sunil Lalla/ UNC.
When a government lobbies senators for their votes in support of legislation of any kind (simple or special majority), there is frequently a negotiation process in which one or more of the senators may put forward amendments to proposed legislation (which is called a bill) and leverage their vote to have an amendment accepted.
This is a healthy process and invariably leads to crisper and more balanced legislation. This process usually takes place when, after the debate on any bill is complete, the Senate goes into a committee comprised of all its members and considers the bill clause by clause.
Photo: Office of the Parliament 2025.
Finally, it is important to understand that there may not be a significant inconsistency when a senator’s proposed amendment is not accepted in committee but that senator nevertheless votes for the bill—if, in the senator’s judgment, the bill is nevertheless beneficial overall, or does not go too far in diminishing individual rights and freedoms.
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Martin G Daly SC is a prominent attorney-at-law. He is a former Independent Senator and past president of the Law Association of Trinidad and Tobago.
He is chairman of the Pat Bishop Foundation and a steelpan music enthusiast.
