The Jeff Cumberbatch Column – Absurdity-at-Law II
Last week’s first installment of this essay dealt in part with the immediately undecipherable and hitherto undeclared mischief behind the draconian criminalization of the cultural practice locally, and in many places elsewhere, of riding a bicycle on a road or a highway, without, according to Regulation 117A (1), “wearing a bicycle helmet” [not otherwise defined, except that it must have a chin strap that must be “securely fastened under the wearer’s chin”].
This query was misinterpreted by a few to mean that I was against the safety of riders in general and many nightmare scenarios were painted of young, healthy, bright children suffering irreversible brain damage after a helmetless fall from a bicycle. The common sense dictum that the individual should be required to guard against reasonable probabilities and not fantastic possibilities availed nothing in this regard, and I was left to assume therefore that there had been recently some unannounced high incidence of deaths or head injuries from local bicycle accidents that warranted this measure being enacted in its current form.
This notion of examining the mischief sought to be remedied by legislation raises at least two points for our consideration. First, whether it is practicable or even desirable to treat every mischief with the legislative solution and, second, whether it is possible to identify with any certainty the specific mischief intended to be obviated by the provision against cellular telephone use given the stated exception of the use of a hands free device.
As to the first, there is a view that too much law [sc. legislation] is indicative of a less than desirable society. According to the American law professor, Grant Gilmore, in “The Ages of American Law”, “Law reflects but in no sense determines the moral worth of a society. The values of a reasonably just society will reflect themselves in a reasonably just law. The better the society, the less law there will be. In heaven there will be no law, and the lion shall lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In hell there will be nothing but law, and due process will be meticulously observed.”
Second, given the cellphone’s traditional function, it might have been presumed that the mischief that the legislation is intended to forfend is the distraction that might ensue from the driver carrying on an animated conversation while driving or operating the vehicle. However, as Regulation 148A makes clear, “ a person may drive or operate a vehicle on a road or highway while at the same time talking on a cellular telephone that is in hands-free mode. [Emphasis added]. It seems clear from this therefore that the immediate mischief relates more to the freedom of the driver’s hands to operate the vehicle than to the distraction that might be caused by conversation. Yet, the use of the hands with the cellular telephone might be thought to relate more to texting or pressing buttons while driving the vehicle, plainly reckless and inconsiderate acts.
Much of the discourse surrounding the recent amendments to the Road Traffic Act owes its origin to the initial interpretation placed on the prohibition by the former head of the RBPF Traffic Division that was met largely with widespread populist disfavour and that was subsequently refuted both by the Force and the Minister of Transport himself, for what this latter is worth.
Yet, as we have seen frequently, the interpretation of legislation is something about which well-trained lawyers may differ, so that any clamour for certainty in this context may only be quelled by the opinion of an apical court. It was not that long ago that the nation was forced to deliberate on the definition of a single man under the Succession Act in Smith v Selby where the trial judge, Mr Justice Alleyne’s view that it related to the status of the individual at his death rather than during the statutory five year period was rejected by the local Court of Appeal, only for it to be subsequently restored and iterated by the Caribbean Court of Justice.
There are some of the firm view that statutory interpretation is made much more complex than necessary by the language employed by those who draft the laws. Such a reproof would certainly hold water in respect of this notorious, though probably apocryphal provision:
“In the Nuts (Unground)(Other than Groundnuts) Order the expression nuts shall have reference to such nuts other than groundnuts, as would, but for this Amending Order, not qualify as nuts (Unground)(Other than Groundnuts) by reason of their being nuts (Unground)”.
But the current dispute on the Road Traffic Amendment Act turns only on the meaning of “operate” and that on the Succession Act provision referred to earlier turned simply on the meaning of “ a single man”. While native common sense and literacy may assist in statutory interpretation, it does not suffice for all occasions since, in the English language, words are known by the company they keep, a canon that has resulted in rather odd results in some cases.
In this regard, I am watching with interest the interpretation that will ultimately be placed on the words “unwelcome” and “uninvited” in the recently passed Employment Sexual Harassment (Prevention) Act 2017. The relevant sections read as follows:
Meaning of sexual harassment
For the purposes of this Act, sexual harassment includes-
(b) The initiation of uninvited physical contact with a person;
(c) The initiation of unwelcome sexual advances or the requests of sexual favours from a person…
Is there a real distinction between unwelcome conduct and uninvited conduct? Is all uninvited conduct of a sexual nature unwelcome? Or some only? Which?