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.

Next week -The s.153 offence and the fundamental rights

112 comments

  • @Donna
    Leave poor Lexicon alone nuh! I am not enjoying this. This is not a fair fight.
    +++++++++++++
    Speak for yourself I am having a ball

    Someone should ask Lexicon why he suspects his wife was avoiding him, is it a regular occurrence?

    We know that lexicon’s other alter ego is Don Wanabe as he told us about all the women he has romanced.

    Liked by 1 person

  • “Someone should ask Lexicon why he suspects his wife was avoiding him, is it a regular occurrence?”
    ++++++++++

    Artax: November 26, 2018 6:27 PM: “Lexicon, Is this a regular occurrence…… or is it happening since she read your BU contributions?”

    Like

  • Sorry Artax didn’t read your full post, Lexi must be rubbing off on me……

    Like

  • Decades late in coming but still missing the ìmportant LINK to Africa….the most important link…,African languages should be taught in schools from primary level to advanced Uni level….it is easier to relink to Africa when you can speak the hundreds of AMAZING languagès to choose from….languages spoken by African ancestors.

    Just the spiritual link of speaking the MOTHER tongue is other worldly….and an indescribable teaching moment.

    https://barbadostoday.bb/2018/11/26/african-studies-advanced-programmes-coming-to-university/

    “African studies advanced programmes coming to university
    Article by
    Marlon Madden Published on
    November 26, 2018
    After four years of budget cuts and delays in building a home for its African and Brazilian Studies, the University of the West Indies (UWI), Cave Hill Campus has joined forces with the University of Johannesburg (UJ) to launch the Institute for Global African Affairs.

    Through the joint initiative individuals will be able to earn a Masters Degree in African Studies. The programme, which will be taught online and face-to-face should starts in January 2020.

    Outlining the programme during a media launch earlier today at the Cave Hill Campus, Director of the Institute for Pan-African Thought and Conversation at UJ, Professor Adekeye Adebajo said the joint institute will focus largely on promoting dialogue and research, especially on the Caribbean.

    The courses proposed by UJ for the joint Masters Degree will focus on “Pan-African thought, theories around the African economy, conflict resolution, regional and international organizations”, while UWI proposed courses will focus on “sustainable development, racism and culture, gender and African identity and black popular culture” he outlined.”

    Like

  • Reality as revealed by Africans who are awake….they now realize that their WEAKEST LINK are their BLACK LEADERS who have no ambition for themselves or their own people outside of selling out their people and enriching themselves and those who seek to exploit THE PEOPLE…

    The university might want to start playing a greater ROLE in educatiNG the population of their CIVIC DUTY…an education which is ESSENTIAL to protect themselves FROM their sell out, greedy leaders and historic exploiters..

    Like

  • WARU,

    Progress, we hope.

    Like

  • Yes…discussion is progress, acknowledgement is progress, ADDRESSING the weaknesses of the leaders in Africa which leads to poverty and oppression of the people is progress….they can now grow their new found awakening in leaps and bounds to chase out their oppressors..eventually.

    It would be great to see such open progress in the Caribbean, but MOST of the leaders are still in cover up mode..

    .. Mia Borrows is not even addressing the corruption she campaigned about, they all vomited some LAME excuses to the people, contrary to what their false hope and false promises said….and then went eerily silent on all their lying campaign promises..

    Like

  • Caribbean media need to VERIFY with the names in their articles first, before running to print.

    Either way, it should answer Mariposa’s question on the MOU.

    “Update: UWI says no agreement yet in £200M reparation deal
    LOOP NEWS CREATED : 26 NOVEMBER 2018 CARIBBEAN NEWS (File Photo)
    (File Photo)

    “Update November 26, 2018:

    The University of the West Indies (UWI) said there is as yet no confirmation on a proposed £200M reparation deal with the University of Glasgow.

    In a statement, UWI Vice Chancellor Sir Hilary Beckles said the headline of the story, initially reported in the Jamaica Gleaner, was incorrect as a team assigned to the project is yet to complete its deliberations.

    “The headline of the story originally published in the Jamaica Gleaner Newspaper dated November 25, 2018, and subsequently carried by other regional media outlets, addressing the Vice-Chancellor of the University of Glasgow’s admission that £200 million in fees, endowment and grants were received from Caribbean slave-owners, and attributing reference to an “agreement” with the Vice-Chancellor of The UWI to repay the said sum was inaccurate.”

    “While the quoted content of the story is correct, the headline that suggests an agreement to pay £200 million to The UWI is not.”

    “The universities are working through a Memorandum of Understanding (MOU) built upon the principle of “reparatory justice”, but there is no “agreement” about the repayment of £200 million to The UWI.”

    “In good faith the two universities, ever since the Vice-Chancellor of the University of Glasgow, Professor Sir Anton Muscatelli, indicated that his university seeks to be excellent and ethical, have had excellent conversations about how the University of Glasgow can contribute to cleaning up the colonial legacies of slavery that are holding back the region.”

    “A working team has been established, which has made many reparatory justice submissions, but is yet to complete its deliberations,” Sir Beckles said.

    Like

  • This is what happens when WEAK governments live in DENIAL and PMs and ministers INSIST on covering up each other’s CRIMINAL BEHAVIORS.

    Like

  • pieceuhderockyeahright

    @ the LUMINARY Jeff Cumberbatch

    You said and I quote

    “…I am not so sure that stripping in a club is illegal per se without a complaint being made…”

    Forgive de ole man for the following drivel but I am seeking to clarify this statement and your overall blog.

    The following is purported to have transpired around a character here call Dompey only recently renamed Lexi-“badword” by Brother in Arms Bush Tea

    It is said that, after the hospital incident when Dompey unplugged the life support system, to charge the same phone his wife refused to answer, resulting in the near death of the patient, Domps was beaten by the family of the nearly deceased

    And, as a result of the beating, apparently his was pistol whipped with several mock guns, he had go be admitted to the same hospital where he remained for a few days.

    During which time police officers came to examine Donkeys Mens Rea and hippocampus

    During the stay, Dompey as is customary, became fixated with the robes that he was required to wear as a patient st the hospital, and has continued to wear them ever since.

    Whuloss de ole man heah spitting all over de iPad cause of this drivel.

    But here is the incredulous link and query, nearly said queer.

    If Dompey were to continue walking around in this preferred robe, WITH HIS BACKSIDE SHOEING IN PUBLUC PLACES, am I to understand that, given that his garb is acceptable garb, and that technically speaking. Or is it that “jurisprudencially speaking” that under the American Constitution Dompey is allowed freedom of expression, that unless someone were to file a complaint, OR DOMPEY WERE TO EXPOSE HIS FRONTAL REGION, his actions would not be illegal?

    Obscene but not necessarily illegal?

    Forgive me for pushing the envelope with Lexicon being the object of the scenario, but I just sought clarification about this complaint thing.

    So if there is no complaint the police or law authorities cannot intervene on their own ?

    Forgive the purpozed convolutions but…

    Like

  • Georgie Porgie

    Just heard over CNN that President Trump is contemplating the possibility of giving Paul Manafort a Presidential Pardon …
    what does this say about justice in America and the rule of law? That Trump is making a mockery of justice in America … so defend Trump all you wish … but you know as well as the rest of the world that this man is one of Satan’s pickney … who soon will be beaten badly with the Rod of Correct …

    Like

  • Piece aka old fart

    Now let us assumed that piece aka old fart was sitting on a subway train in NY in his mini skirt and high heels with his pinky finger painted in yellow … and this uppity old Jewish white Jew woman call the cops … because Peice aka old fart appearance affronted her … the law would be still on piece aka old fart side … forgive me for using Piece in this example …but I hadn’t a better person …

    Like

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