The recent report, in Stabroek News, of the 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 and recommended as illustrating governance by dialogue in the interest of the people of the Caribbean.
The newspaper reported that Attorney General Anil Nandlall tabled a bill in the National Assembly on 10 June 2021, to delete Section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act to “give effect to the judgement of the [CCJ] in the case of Quincy McEwan et al vs the Attorney General of Guyana [2018] CCJ 30 (AJ).” The report went on to quote the bill’s explanatory memorandum as stating that its tabling, “signals the government’s commitment to fulfilling the human rights of all Guyanese. 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.” (Stabroek News, June 12, 2021).
Essentially, then, the proposed Bill is intended to discard the British colonial-era portion of an Act that allows for fines and prison time for mostly males who dress as females. This to the evident satisfaction of the LGBTI community in Guyana, and the wider Caribbean Community.
It is not my purpose here to comment in any way on the merits of the proposed legislation. That has already been forecasted in the judgment of the CCJ. Nor do I propose to foreshadow or otherwise pass on any challenge to which the proposed legislation may yet give rise. My only interest is to emphasize the importance to good governance of responsiveness by government to suggestions by the judiciary for law and legislative reform. Whether the government agrees with the court (as government did in this case) or disagrees (as governments have done in other cases) is, therefore, not critical to this analysis.
Function of judiciary
Judges do not (or should not) make law. That is the job of the legislature. The function of the judiciary is to interpret the law as it exists and to apply that law to the facts of the case before it. This means that even where the law is, by broad judicial consensus, considered “archaic” or even “unjust” the judiciary still cannot (or should not) attempt to amend or abolish that law. What it can do is to draw the attention of the legislature 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, without further explanation, can appear to be formalistic or even superficial. In fact, the true source of the limitation is democracy. The judiciary is the least democratic of the three branches of government as our 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. Ideally, that law is the result of a conversation that the society has with its various and diverse components. The resultant compromise is then hammered out on the anvil of the legislative process. Specific considerations attend changes to the Constitution; often special parliamentary majorities are required, and it may even be necessary to directly obtain the assent of the people in a plebiscite. Democracy, therefore, is king.
Concerns about democracy
Democracy has worried political philosophers since Socrates and, his student, Plato, who later taught Aristotle. The most sustained argument against it appeared about 2,400 years ago in Plato’s Republic. That work critiqued democracy as inherently defective in that it gives people a right to participate in political life whether or not they demonstrate any qualifications for doing so. Plato favored the ‘philosopher King’ as head of a ruling elite; an elite specially set apart and trained for the job of governance.
This platonic idea was not interred with its creator. Aristotle favoured ‘the rule of the best over the rest’. To this day, some theorists consider that the ancient Greek philosophers were right; that democracy is not the best possible political system (see e.g., Brink, Meyer, and Shields, Virtue, Happiness, Knowledge: Themes from the Work of Gail Fine and Terence Irvin, first published in 2018). And there can be no doubt that democracy can sometimes be an unwieldy and messy affair; we need look no further than to the recent presidential elections in the United States of America.
Caribbean faith in democracy
However, we need not reprise the discussion of the legitimacy of democracy. That discourse was put to bed some 240 years ago by the French and American Revolutions. All Caribbean Constitutions that stand in the tradition of Westminster are grounded in the acceptance of the faith in liberal democracy. The Guyana Constitution is among the most explicit of all. Article 9 proudly proclaims that:
“Sovereignty belongs to the people, who exercise it through their representatives and the democratic organs established by or under this Constitution.”
The most obvious and important reason, then, that judges do not (or should not) make law is respect for the principle of 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. The judge’s focus is necessarily on the dispute between the parties as represented in their pleadings and submissions and does not necessarily behold the broad societal picture; the judge often lacks non-legal subject-matter expertise; and the judge is unfamiliar with the availability of any needed governmental resources and with the priorities for public resources allocation. 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.
That last point could be important for the grounding of any necessary action by law enforcement agencies and for transforming popular views and attitudes. Legislation normally has a greater educative values-transformative effect than judicial decisions. It is instructive that even after McEwan, the LGBTI community in Guyana continues to complain that little has changed in public perception and attitudes. The community still claims that the law against cross-dressing continues to be the source of police and state harassment, and that the law continues to support hostility by members of the public.
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 the State to facilitate any law reform that may be desirable. Such dialogue can act as a kind of ‘peer pressure,’ spurring the executive, legislature, and judiciary to the best exercise of governmental powers.
Indeed, the executive has sometimes reminded the judiciary of the need to give timely judgments (note, for example, the speech by Prime Minister Dean Barrow of Belize to the 6th Biennial Conference of the Caribbean Association of Judicial Officers (CAJO), held in Belize, November 2019). Parliament has sometimes enacted legislation and/or constitutional amendments requiring delivery of judgments within specified timelines (this has been done in Guyana and Barbados, for example). And it has long been the practice of courts to point out areas in which the legislature may wish to consider law reform.
In the latter regard, the past practice in some countries was for the Drafting Department of the Attorney General’s Chambers to routinely watch out for judicial suggestions for law reform and, indeed, to research the case law with a view to amending legislation to bring such in line with judicial decisions of final authority. This approach is eminently sensible and makes the law easier to access after the court has pronounced upon it. This may be especially important to non-lawyers, but also for lawyers, who need not go searching through numerous cases to determine whether, for example, a particular statute is valid or parts of it have been struck down by the court.
We could well be witnessing a significant revival of that practice and its expansion to engage socio-legal
engineering. To the stellar example of the legislature of Guyana in the aftermath of McEwan must be added the earlier instance of Barbados following the CCJ’s landmark judgment in Nervais v R, Severin v R [2018] CCJ 19 (AJ), 92 WIR 178. In Nervais, 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 so as to, “give the individual full measure of the fundamental rights and freedoms enshrined in the Constitution.” Within a year, on 4 April 2019, the Barbados Parliament had passed a constitutional amendment requiring any law enacted during the colonial era to be construed with such modifications, adaptations, qualifications, and exceptions as may be necessary to bring it into conformity with the human rights provisions of the Barbados independence Constitution.
Legislature unresponsive to, or disagreeing with, judicial suggestions
On the other hand, the CCJ made certain pronouncements in the case of Maurice Tomlinson v. Belize and Trinidad and Tobago ([2016] CCJ 1 (OJ)) which do not seem to have been the subject of an explicit response by the legislature. Those pronouncements were clearly unfavourable to retaining colonial era laws, which appeared to suggest that Community nationals who are homosexuals are thereby to be regarded as prohibited immigrants. The Court explained that it wished “to state that it is not to be taken as condoning the indefinite retention on the statute books of a national law which in appearance seems to conflict with” the obligations of free movement of Community nationals (ibid., at para 56). As far as I am aware, the legislatures in these countries are yet to respond expressly, one way or the other, to these judicial observations.
And it is the case that legislatures have expressly disagreed with judicial suggestions for law reform. Exhibit A is the famous landmark decision by the Privy Council in Pratt and Morgan v Attorney-General for Jamaica ([1993] UKPC1, [1994] 2 AC 1). There the Board held that given the conditions and circumstances prevailing on death row, the stay there for more than 5 years by the two appellants, meant that it would be cruel and inhumane to carry out the death penalty imposed on them. This led to the commutation of death sentences up and down the region of those inmates who had been on death row for more than 5 years. However, some parliaments (notably in Barbados and Jamaica) have legislated to make clear that neither the length of time spent on death row, nor the physical conditions or arrangements under which a person is kept, are impediments to the implementation of the death penalty imposed on that person. This would seem to be a legislative overruling of Pratt and Morgan. There has been no constitutional challenge to the legitimacy of that overruling.
Interpreting the law vs making the law
Legislative conformity with, or overruling of, judicial suggestions for law reform is the perfect segue onto 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 enacts a law or amends the Constitution in the wake of a judicial decision or suggestion, so as to give broad societal effect to that decision or suggestion, that activity is necessarily an exercise in law-making. And that characterization 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 Caribbean Court of Justice (‘CCJ’); Chairman of the CCJ Academy for Law; and a 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.
