“..that the people (including, one should add, the government) should be ruled by the law and obey it and
(2) that the law should be such that people will be able (and, one should add, willing) to be guided by it.”
– Geoffrey de Q. Walker, The rule of law: foundation of constitutional democracy, (1st Ed., 1988).

“The protection of the law implies that legal commands are uniform and general; that they cover all situations within the class they define and apply to all persons within those situations”- per Rajnauth-Lee JCCJ. [2018]

The remaining issues for the court in this case were first, the vagueness of section 153 (1)(xlvii) and its implications for the observance of the rule of law, and that of the legal consequence of the reproof given by the magistrate to the appellants on their initial conviction.

Vagueness

Vagueness encompasses twin considerations. A term or provision may be vague because it is not reasonably susceptible to meaning. This would include gibberish such as “fustum fumidos tantaraboo” that is incapable of any meaning at all. It would also include language expressed in such a way as to confound any ordinary reader as to its import. This would be instanced by the now notorious, but probably apocryphal, definition provision in the Nuts (Unground) (Amendment) Order of some anonymous jurisdiction-

“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)”.

The second instance of vagueness would be found in a provision that is capable of so many meanings that the reader would be unable to assert with any certainty which meaning is intended.

Readers will readily accept that either of these forms of vagueness is decidedly inapt for proscribing human conduct on pain of criminal sanction. President Saunders made this point at the outset-

“A penal statute must meet certain minimum objectives if it is to pass muster as a valid law. It must provide fair notice to citizens of the prohibited conduct. It must not be vaguely worded. It must define the criminal offence with sufficient clarity that ordinary people can understand what conduct is prohibited. It should not be stated in ways that allow law enforcement officials to use subjective moral or value judgments as the basis for its enforcement. A law should not encourage arbitrary and discriminatory enforcement…”

In his view, the section failed those tests. There was no clarity as to what would constitute an improper purpose, it was open to discriminatory application and neither an anecdotal but unexpressed assumption of the possible meaning or the suggestion by the Solicitor General that any potential vagueness could be removed if, when a person is charged, details are given of the improper purpose that prompted the laying of the charge, sufficed to remove the vagueness of the section; the latter especially because the arrest would have preceded the explanation. It thereby contravened the principle that the citizen ought to be made reasonably aware of what conduct might entail criminal liability.

This defect was further compounded by what President Saunders termed “the premise, inherent in the law, that there is attire that is wholly and exclusively male or female.” And, given that one universal principle of the rule of law requires that the laws, especially those that attract a penal sanction, should be clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights, the section here was undeniably in violation of this. This could entail one result only.

“The rule of law requires that legislation which is hopelessly vague must be struck down as unconstitutional. For all these reasons. (the fact that no one can say with certainty what an ‘improper purpose’ is or what male or female attire looks like, leaves transgendered persons in particular in great uncertainty as to what is and is not allowed, and to aggravate that injustice, gives law enforcement officials almost unlimited discretion in their application of the law) we hold that section 153(1)(xlvii) is unconstitutionally vague and, as it stands, fulfils no legitimate purpose.

Justice Anderson also agreed with this view in his judgment-

In purporting to criminalize cross-dressing for an improper purpose, section 153(1)(xlvii) appears to come exceedingly close to attempting to criminalize intentions or states of mind. It is clearly the case that the act of ‘crossing dressing’ is not itself unlawful per se. It is not an offence for males to dress in female attire and vice versa in a public place. The offence is committed only where this is done for an “improper purpose” (whatever that may mean). This suggests that what is being punished is not primarily the conduct of cross-dressing but rather the mental state of harbouring an improper purpose whilst being cross-dressed.

As did Justice Rajnauth-Lee:

“While it would be unrealistic to expect the ordinary citizen to be informed of the detailed contents of criminal statutes, the proper application of fair notice simply requires that it be possible for citizens to determine their legal duties and regulate their conduct in accordance with the prescribed laws in advance of acting.”

So far as the magistrate’s reproof of the accused (as they then were) was concerned, it will be recalled that this officer had instructed them that “they must go to church and give their lives to Jesus Christ, and had also advised them that “they were confused about their sexuality; that they were men, not women”.

President Saunders thought these remarks “inappropriate”. He averred-

Judicial officers may not use the bench to proselytise, whether before, during or after the conclusion of court proceedings. Secularism is one of the cornerstones upon which the Republic of Guyana rests. But these remarks went beyond proselytising. They revealed stereotypical thinking about transgendered persons….

Section 144 of the Constitution promises all persons charged with a criminal offence a fair hearing by an impartial tribunal. By reason of the remarks made by the Magistrate, the named appellants would have been justified in believing that in their case this promise was not manifested.

Commentary

This decision of the Caribbean Court of Justice illustrates the perniciousness of an unlimited savings law clause and the unexplained contradiction of its location in our Constitution. It would be trite to assert that Independence entailed for us in the region the sovereign ability to transform our societies in our own image and thus to abandon those hoary laws that regulated our pre-independence polities. A provision that would preserve laws enacted to regulate societies in which the majority of the current citizenry were not regarded fully human appears woefully irrelevant to the present circumstance.

In a previous column I queried the kind of thinking and discussion that would have so deeply entrenched the colonial court, the JCPC, in the Constitutions of Grenada and Antigua as part of the Schedule to their respective Independence Orders at that auspicious time. The savings clause is of the same ilk, seemingly structured to maintain ties to the former dispensation, although here through the preservation of the extent of freedom then existing. Many have argued that the circle of Independence is to be completed by attaining republican status. Maybe we first need to fashion our laws and their administration in our own image.

As for the decision itself, few readers would have failed to recognize that the improper purpose sought to be impugned, though assumed only, in the section would have been that of prostitution. While this, without more, would have been adequate perhaps for the purpose at the time the statute was enacted, it could scarcely subsist in a progressive Caribbean society now more mindful of the rights of individuals and the preservation of their dignity and autonomy. A provision that would render this immune from question is arguably deserving of contempt.