The Jeff Cumberbatch Column – Criminalizing Attire and the Rule of Law [II]
“Every person in Guyana is entitled to the basic right to a happy, creative and productive life, free from hunger, ignorance and want. That right includes the fundamental rights and freedoms of the individual.” – Article 40(1) of the Constitution of Guyana
The first part of this extended essay last week treated the arrests, convictions and subsequent unsuccessful constitutional challenges both at first instance and in the Court of Appeal of the four accused in that each one, being a man, had appeared in female attire in a public place for an improper purpose contrary to section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act of Guyana. They then appealed to the Caribbean Court of Justice [CCJ]. This week, we seek to analyze part of the leading judgment of Saunders PCCJ respect with which the other members of the panel unanimously agreed. The decision is of clear precedential importance to Barbados, among other jurisdictions.
In his view, there were four issues that arose for determination by the Court. These were, namely, whether the section violated the appellants’ rights to equality and non-discrimination guaranteed to them by the Guyana Constitution; whether it violated their identically guaranteed right to freedom of expression; whether it offended the principles of the rule of law in light of the vagueness of the provision, especially with regard to the terms “improper purpose”, “male attire” and “female attire”; and whether the reproving remarks of the Magistrate were appropriate and, if not, their consequence.
First, he sought to place the section in its historical context, and found that it was part of a suite of nineteenth century laws enacted against vagrancy and designed originally to “regulate and exercise control of both the ex-slave population and, in places like Guyana, the newly imported indentured labourers” in order to curtail mobility, to keep close to the plantations those whose labour was essential for continued exploitation.
Second, as a preliminary point, he examined the question of whether the section might be considered an existing law and thus be deemed immune from inquiry as to its conformity with the fundamental rights provisions in the Guyanese Constitution. It is submitted that special attention ought to be paid locally to the observations of the CCJ on this point, since it has been sometimes urged as likely to defeat any challenges to laws that conceivably infringe the fundamental rights of individuals, and was in fact used to validate the 1991 eight per cent salary cut imposed on public officers in spite of forceful informed argument to the contrary. Our provision, section 26, reads as follows-
Nothing contained in or done under the authority of any written law shall be held to be inconsistent with or in contravention of any provision of sections 12 to 23 to the extent that the law in question–
(a) is a law (in this section referred to as “an existing law”) that was enacted or made before 30th November 1966 and has continued to be part of the law of Barbados at all times since that day;
(b)repeals and re-enacts an existing law without alteration; or
(c) alters an existing law and does not thereby render that law inconsistent with any provision of sections 12 to 23 in a manner in which, or to an extent to which, it was not previously so inconsistent
(2) In subsection (1)(c), the reference to altering an existing law includes references to repealing it and re-enacting it with modifications or making different provisions in lieu thereof, and to modifying it, and in subsection (1) “written law” includes any instrument having the force of law; and in this subsection and subsection (1) references to the repeal and re-enactment of an existing law shall be construed accordingly.
One traditional defence for the existence of this clause is that it was enacted to secure a smooth transition of the law from earlier times to independent status, but the President gave this argument short shrift-
After more than 50 years of independence it is quite a stretch to say that Guyana (or indeed any other independent Commonwealth Caribbean state) is still in that transition phase.
And he noted its corrosive effect on the guaranteed freedoms and the supervisory power of the Courts –
The broad effect of the savings clause, read literally by many, is that these human rights, so carefully laid out in the Constitution, must give way to the dictates of a pre-Independence law until and unless the legislature amends the pre-independence law…The hallowed concept of constitutional supremacy is severely undermined by the notion that a court should be precluded from finding a pre-independence law, indeed any law, to be inconsistent with a fundamental human right. Simply put, the savings clause is at odds with the court’s constitutionally given power of judicial review.
He referred too to an earlier decision of the Court in a recent appeal from Barbados, where the Court had noted that-
“With these general savings clauses, colonial laws … are caught in a time warp continuing to exist in their primeval form, immune to the evolving understandings and effects of applicable fundamental rights. This cannot be the meaning to be ascribed to that provision as it would forever frustrate the basic underlying principles that the Constitution is the supreme law and that the judiciary is independent.”
The sustained hostility demonstrated by the CCJ to the savings law clause should give some encouragement to those local individuals and entities who now consider themselves hamstrung in challenging legislation on the basis of its perceived fundamental rights infringement, simply because such legislation existed prior to 1966.
Indeed, the court itemized no fewer than four principles on the basis of which the clause itself may be impugned. According to the judgment-
Firstly, even if one were to apply the clause fully and literally, because of its potentially devastating consequences for the enjoyment of human rights, the savings clause must be construed narrowly, that is to say, restrictively.
Secondly, assuming again a full and literal application of the clause, the clause only saves laws that infringe the individual human rights stipulated in the clause itself. It does not preclude the court from holding a pre-independence law to be invalid if in fact the law runs counter to some constitutional provision that falls outside the specified individual human rights,
Thirdly, application of the clause may result in placing the State on a collision course with its treaty responsibilities and it is a well-known principle that courts should, as far as possible, avoid an interpretation of domestic law that places a State in breach of its international obligations.
The fourth approach is the most contentious. But it has support from very distinguished jurists. It is that courts should first apply the modification clause to the relevant pre- Independence law before attempting to apply the savings law clause. We consider each of these approaches in turn.
Legal scholarship has also been generally antithetical to the savings law clause. In an article published in the University of Miami Inter-America law review in 2004, Professor Margaret Burnham of the Northeastern University School of Law, pulled no punches in her withering assessment-
“The clause eliminates the plasticity, organicity, and elasticity that fundamental rights adjudication requires to respond effectively, as it must, both to evolving universal standards” and to culturally specific normative shifts.” In sum, it violates the time- hono[u]red rule, cogently expressed by Alexander Hamilton, that constitutional framers must “look forward to remote futurity.”
One other justification for the savings law clause that I am aware of but that was not treated by President Saunders or the Court is that the guaranteed fundamental rights are not entirely new, but have existed, at least in embryonic form, since earliest times, so that the clause does not detract from the essential nature of the existing right. Given the history of the region, this view is at least of dubious cogency.