BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate
A nation under law – […]– Part 2
By Jeff Cumberbatch
As the Kim Davis matter that I commented on in this space last meanders along in the US, there has arisen a novel constitutional theory in her favour, emanating mostly from untutored Republican presidential hopefuls, that the US Supreme Court is not the final arbiter of the interpretation of the Constitution and that the individual states, and perhaps even dissenting individuals, may decide rather to abide by a ruling that comports with their view of what the Constitution should intend.
Of course, one would have thought that this matter was settled since early in the nineteenth century when it was stated in a seminal decision and not questioned subsequently– “It is emphatically the province and duty of the judicial branch to say what the law is. Those who apply the rule to particular causes must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each…So if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then, the Courts are to regard the Constitution, and the Constitution is superior to any act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply…”
And as if to lend further support to their proposition, many of Mrs Davis’s supporters seek to rely on the old chestnut that the Supreme Court is not supposed to make law, as they argue that it did in the recent decision now under query, but merely to state what the law is. The conundrum here is that the law can only be what it is stated to be by the body charged with the exclusive jurisdiction to do – the Court. Since the constitutional framer of the law, the legislature, is not empowered to state what a provision means except by the use of the clear words it might employ in enacting the statute, it seems certain that this argument is using the expression “make law” in an unnatural and tendentious sense.
Of equal certainty is that the thinly-veiled thesis behind this new view is the theocratic sentiment that any law that is in agreement with Biblical injunction is undeniably superior to and overrides any man-made law; a view, though it might find favour with more than a few Barbadians, and while perhaps sound in theory, finds no application in practical reality, as I sought to show last week in my brief exposition of local laws that both coincide and conflict with this opinion. The inevitable consequence of this formulation ought to be that any identity of local legislation with Biblical injunction is owed rather to coincidence than parliamentary design.
A similar jurisprudential issue now arises in Barbados with the insistence of the Ministry of Labour that even with legislation in place to deal with labour issues, the Protocol signed by the constituents of the Social Partnership still has a role to play. Baldly so stated, of course, there is nothing immediately inaccurate about this.
However, it would appear that the policy may go beyond the mere assertion to contemplate a circumstance where, even if there should be an identity between the two or, even more intriguing, a conflict between them, the Protocol might still take precedence.
What else am I to make of the recent assertion by the Minister with responsibility for labour issues that “we operate under a different system in Barbados. It is not like in some other countries where employers come and they just look at the statute books; we remind our employers that it is not just our statute books, we have a protocol, a Social Partnership, and that guides the spirit of our relationship”?
If the Minister is simply making a point of statutory interpretation – that the provisions of any relevant local legislation should be interpreted, in a manner that lawyers are given to call, “de bene esse”, so as to have its provisions construed consistent with the intendment of the Protocol, the statement is irrefutable.
If, however, as I suspect, the statement purports a subordination of that legislation to the Protocol as a matter of law, then I cannot agree with it. And my disquiet is not owed solely to the validity of its operation in a context where there is a patent conflict between the two provisions in question, but even in one where there the provisions are identical.
The reality is that the Protocol has the status at law merely of a gentlemen’s agreement or one binding in honour only on those who are parties to it. In such a case, there are no legal sanctions that may be applied to any breach of one or more of its undertakings, although it would be expected that moral suasion should suffice to remedy any contravention.
A statute, on the other hand, is legally and morally binding, notorious, and universal in its application. To a society that claims adherence to the rule of law, the statute is an embodiment of good governance, and a representation, at least in theory, of the popular will. To subsume such an instrument under a gentlemen’s agreement would be to elevate the shadow of the thing above its substance.
Clearly, outside of the arguable jurisprudential illegitimacy of the official stance, there is much to be said for the process of mutually respectful social dialogue between industrial partners in the resolution of disputes, and few would deny the global application of this principle in that regard.
To the extent that statute incorporates this ideal, there is little need to refer for authority to the provisions of the Protocol that also do so. To the extent that it does not do so, however, then the legislation must abide the categorisation of being deficient and unsuited to the purpose of modern day industrial relations and should be immediately repealed and re-enacted in compliant form.
There should be, in my view, no need to create a hierarchy of protocol and statutory provisions in order to make this widely accepted point.