Dear Editor,
The intense debate on what the word “majority” means in Article 106(6) presents another golden opportunity for our courts, should the matter reach them, to enlighten us on how they approach the interpretation of the law. As I had stated in a previous letter under the title ‘Judges should communicate how they approached interpretation’ in SN, 19-11-2017, an explicit interpretation methodology fosters predictability and consistency thereby enabling lawmakers to better craft legislation, knowing in advance how courts will interpret the law.
In a 2015 Chicago Law Review article, Professor Fallon explains that in legal text a word can assume as many as five different meanings (‘The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation’ by Richard H. Fallon Jr). These are: (i) semantic or literal meaning, (ii) contextual meaning, (iii) intended meaning, (iv) reasonable meaning, and (v) previously interpreted meaning. As each approach to meaning produces a different outcome, our judges should indicate in their rulings which meaning of meaning is controlling and why.
What are possible outcomes when we apply Fallon’s classification to the word “majority” in Article 106(6)?
First, semantic or literal meaning. Some contributors (notably Chris Ram, editorials of Stabroek News, and Rakesh Rampertab) posit that the plain meaning (i.e., semantic or literal meaning) of the word “majority” is an open and shut case. They emphasize the common dictionary meaning of the word and conclude that “majority” means greater than. But this argument ignores the fact that the word “majority” in some legal dictionaries can, in a voting context, carry three modifiers with significant differences: simple (greater than), absolute (half + one) and super (more than absolute). True, the plain meaning is widely accepted as the starting point of legal interpretation. But here it does not help, as it does not help in telling us whether “nails” in the sentence “Do not use nails” means fingernails, toenails or carpenter nails.
With regards the contextual meaning of “majority”, two lines of argument have emerged, both based on other articles in the constitution itself. One line (offered by Ram) asserts, in a nutshell, that the framers of the constitution have demonstrated (in Article 180(1), for example) they could use the wording more or less than “one-half” as required. The absence of such wording in Article 106(6), this argument goes, must mean the framers used “majority” to mean simple majority. The second contextual argument points to the special voting conditions demanded by the very article (“all elected members”, not just as in other articles “all members present and voting”) to conclude that “majority” means absolute majority. In this matter, contextual meaning is the most delicate and analytically challenging of the five.
Fallon’s third meaning (intended meaning) refers to what the parliament had in mind when it passed the particular constitutional amendment that is now Article 106(6). The most acceptable source of parliament’s intention would be the written record of the 1999 Constitution Reform Commission (CRC). Within this collection, the preferred references should be the Final Report of the Oversight Committee on Constitutional Reform and the CRC’s specific recommendations as adopted by the National Assembly. These, however, tell us nothing of what the legislators had in mind. Of note, there exist individual publications on the work of the CRC written by its Chairman, Ralph Ramkarran, and its Secretary, Haslyn Parris. But as personal recollections and assessments, these should not be referenced as the official views of the legislature.
When it comes to what is a reasonable meaning (Fallon’s fourth) of “majority”, nearly every government supporter believes that it is absolutely unreasonable for the word to bear a meaning that all it would take is the vote of one MP (a scheming one, more so) to cause the government to fall. In this view, “majority” cannot reasonably mean a simple majority. Reasonable meaning, unlike plain or literal meaning, introduces a large dose of common sense, and looks at the law’s consequence and purpose in interpreting legal text. Fallon’s example that the plain or literal meaning of a rule that states “No vehicles in the park” would exclude an ambulance from driving in to rescue a seriously injured person. But a person, reasonably interpreting the rule, would allow the ambulance in.
The danger here, of course, is that a judge’s use of reasonable meaning may intrude into the legislature’s domain of lawmaking and policymaking. Nevertheless, there is a strong sense that “majority” in Article 106(6) reasonably should mean absolute majority.
Lastly, previously interpreted meaning relies on cases where earlier rulings can serve as guides to new and similar cases. Known in Latin as stare decisis, this doctrine seeks to ensure consistency and predictability in court rulings across time and space. The coalition government’s case for “half + one” reportedly rests on cases in the UK and Vanuatu. I get the sense that the schooling of many of our judges leans them towards favouring previously interpreted meaning.
Which approach to legal meaning is seen as primary or preferred is something hard to assess and predict in Guyana. Not much is written on the matter (see, as one US example, “Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals.” by Abbe R. Gluck & Richard A. Posner. Harvard Law Review. March, 2018).
Yours faithfully,
Sherwood Lowe
