Winston Anderson | Encouraging signs for governance by dialogue

The recent tabling of a bill in the National Assembly of Guyana to give effect to a 2018 ruling by the Caribbean Court of Justice (CCJ) is a development to be highly commended as illustrating governance by dialogue.

Attorney General Anil Nandlall tabled the bill on (it seems) June 10, 2021, to eliminate the offence of ‘cross-dressing’ and thus “give effect to the judgement of the [CCJ] in the case of Qunicy McEwan et al vs Attorney General of Guyana.” The bill signalled that “the Government rightly acknowledges and agrees with the CCJ that this archaic law, which is inconsistent with the Constitution of Guyana, has no social or legal purpose in a progressive society”.

It is not my purpose here to comment in any way on the merits of the proposed legislation, an issue already forecast in the judgment of the CCJ. My only interest is to emphasise the importance to good governance of responsiveness by government to suggestions by the judiciary for legislative reform.

Function of judiciary

Judges do not make law. That is the job of the legislature. The judiciary’s function is to interpret and apply the law as it exists to the facts of the case before it. Even where the law is, by broad judicial consensus, “archaic” or even “unjust”, the judiciary still cannot amend or abolish it. What it can do is to draw the legislature’s attention to the need for reform. If a law is found by the court to be not merely “unjust” but inconsistent with the Constitution, the only power of the judiciary is to strike it down to the extent of the inconsistency.

The limitation thus imposed on the judiciary is often said to be based in the doctrine of separation of powers. This is true but requires further explanation. In fact, the limitation is sourced in democracy. The judiciary is the least democratic of the three branches of government as judges are not popularly elected. The legislature is the most democratic as all its members – or, at the very least, the overwhelming majority – are popularly elected. As free people in a democracy, the citizens make the laws for their own governance. Democracy, therefore, is king

Caribbean faith in democracy

Democracy has worried political philosophers since Socrates. Plato’s Republic, published 2,400 years ago, critiqued democracy as inherently defective in that it gives people a right to participate in political life regardless of whether they demonstrate any qualifications for doing so. Plato favoured the ‘philosopher King’ as head of a ruling elite, an elite specially set apart and trained for the job of governance.

But we need not reprise the democracy debate. That discourse was settled some 245 years ago by the American, Haitian, and French revolutions. All Caribbean Constitutions that stand in the tradition of Westminster are grounded in the acceptance of faith in liberal democracy.

The most obvious and important reason, then, that judges do not make law, is respect for the sovereignty of the people expressed in and through their democracy. But there are other, more technical reasons, why judges are not to be equated with Plato’s elite. One such is that except where the law is struck down for unconstitutionality, the impact of judicial decision-making is necessarily (or, at least, usually) limited to the parties before the court.

This last point is usually important for grounding any necessary action by law enforcement and for transforming popular views and attitudes. It is instructive that even after McEwan, the LGBTI community in Guyana continues to complain that little has changed in public perception and attitudes.

Revival of a practice?

But if there are profound reasons for the court to stay in its crease by interpreting and applying, rather than making the law, it becomes even more important that there be dialogue between the branches of Government to facilitate legislative reform. We could well be witnessing a revival of a practice where the legislature responds to judicial suggestions for reform. To the stellar example of the legislature of Guyana following McEwan must be added the earlier instance of Barbados after the CCJ’s landmark judgment in Nervais v R (2008). In that case, the court, by a majority of 6-1, gave a revolutionary interpretation to the ‘general savings law clause’ in the Barbados Constitution, holding that it should be interpreted restrictively to “give the individual full measure of the fundamental rights and freedoms enshrined in the Constitution”. Within a year, on April 4, 2019, the Barbados Parliament had passed a constitutional amendment requiring colonial era laws to be construed as necessary to bring them into conformity with the human rights provisions of the Barbados independence Constitution.

Legislature unresponsive to, or disagreeing with, judicial suggestions

By contrast, the CCJ made pronouncements in Tomlinson v. Belize and Trinidad and Tobago, which were clearly unfavourable to retaining colonial-era laws which could be reading as intimating that other Community nationals who are homosexuals are ipso facto regarded as prohibited immigrants. These observations do not seem to have been the subject of a legislative response. Exhibit A for legislative disagreement with judicial intimations for reform is the famous landmark decision by the Privy Council in Pratt and Morgan v Attorney-General for Jamaica (1993). There, the board held that the conditions and circumstances prevailing on death row meant that the stay there for more than five years by the two appellants rendered it cruel and inhumane to carry out the death penalty imposed on them. Subsequently, some parliaments (notably in Barbados and Jamaica) legislated to make clear that neither the length of time spent on death row nor the conditions or arrangements under which a person is kept are impediments to the implementation of the death penalty imposed on that person.

Interpreting the law vs making the law

Legislative conformity with, or overruling of, judicial suggestions for law reform is the perfect segue into the old chestnut of distinguishing between judicial law-interpreting (which is permissible and required) and judicial law-making (which is impermissible and unconstitutional). This is not an easy distinction to make, and much ink has been spilled in the attempt. For present purposes, it suffices to suggest the following rule of thumb. Where it is necessary that Parliament enact a law or amend the Constitution in the wake of a judicial pronouncement to give broad societal effect to that pronouncement that is necessarily an exercise in law-making. And that characterisation probably remains true whether the matter first arises for debate in the Parliament or for adjudication in the courts.

Justice Winston Anderson is the third most senior judge on the CCJ; chairman of the CCJ Academy for Law; and former professor of law at The University of the West Indies. This commentary is not intended as an advisory opinion or a commitment to a particular legal position in any court proceedings. Send feedback to columns@gleanerjm.com.