Unenforced Provisions and State Practice

The following Advocate Editorial continues the conversation started last week.

thelawLast week, in our examination of the recent Caribbean Court of Justice decision in the twin cases of Maurice Tomlinson v Belize and Maurice Tomlinson v Trinidad & Tobago, we adverted to the holding of the Court that despite the express provisions in the Immigration Acts of both jurisdictions formally prohibiting the entry of homosexuals, such as Mr Tomlinson claimed to be, the proper construction of a domestic statute in the context of an international dispute was ultimately dependent on evidence of state practice. Therefore, since it was not the practice of either jurisdiction to exclude individuals purely on the basis of their sexual orientation, Mr Tomlinson’s rights as a CARICOM national were not in danger of being prejudiced by the existence of the respective provisions.

Granted that that particular dispute was in the context of international law, we remain intrigued nevertheless by this mode of statutory interpretation –one that appears not to have been consistently applied in all spheres of international relations.

At the close of last week’s editorial we remarked that Barbados had not benefited from such an interpretation in 2007 when the Inter-American Court of Human Rights assessed the local statutory provision for the death penalty for conformity with the American Human Rights Convention in Boyce v Barbados. It should be noted that despite the presence of this provision on the statute books, it had been cribbed and confined by various decisions of the Judicial Committee of Her Majesty’s Privy Council to such an extent that by the time of the IAHCHR’s assessment no person had been executed on the basis of a murder conviction for over three decades.

And in spite of Barbados’s argument that one of the parties could not be put to death since the rule in Pratt & Morgan prohibited the State from executing him, the Commission nonetheless succeeded in its argument that until his sentence is officially commuted, the possibility of his execution remained.

There are several other similar instances. Barbados, as does many of the jurisdictions in the Commonwealth Caribbean has, on its statute books, the criminal offence of buggery. Even though this offence as drafted may be committed between a male and female, it is mainly regarded as a sexual activity indulged in by men who have sex with men. In spite of its formal existence, charges and prosecutions for this offence are rare in any circumstance. Yet, much of the criticism leveled at these nations in this regard by the cosmopolitan countries is owed rather to the existence of the law on the books and the possibility of its enforcement, with little regard being paid to the infrequency of its local prosecution so long as it is carried out between consenting adults in private.

Other examples may be referenced including the repeated castigation by the Committee on Freedom of Association of the International Labour Organization of the provision in the Better Security Act, Cap 160 that would permit the criminalization of strike action in certain utility services. Our response that the provision is not enforced is usually met with a rejoinder that it should then be repealed rather than with an acceptance that it is the practice that matters most and not the mere existence of the provision.

There is a doctrine in the civil legal tradition known as desuetude. According to this doctrine, if, after a sufficiently substantial period there has been no enforcement of a legal provision or a contrary usage, it will be automatically repealed. Although not part of our common law, this doctrine has much to commend it and, too besides, would fit neatly into the reasoning of the CCJ in Tomlinson earlier this month.

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