Dr Hamid Ghany hamid.ghany@sta.uwi.edu
Is judge-made law a trespass?
On September 30 last, I wrote about Mr Justice Devindra Rampersad’s judgment in the matter involving Jason Jones v the Attorney General. I had commented on his decision to amend section 13 of the Sexual Offences Act to insert the words “without consent” in order to modify a section of the law that he deemed unconstitutional in such a manner as to reshape the law from the bench. The rewording by the judge has had the effect of making section 13 read as follows: “13. (1) A person who commits the offence of buggery is liable on conviction to imprisonment for twenty-five years. (2) In this section ‘buggery’ means sexual intercourse ‘without consent’ per annum by a male person with a male person or by a male person with a female person.”
I had also pointed out that Justice Rampersad had amended section 16 by deleting the words ‘a male person and a female person’ and replaced them by the word ‘persons’ so that the section now reads as follows: “16. (1) A person who commits an act of serious indecency on or towards another is liable on conviction to imprisonment for five years.
(2) Subsection (1) does not apply to an act of serious indecency committed in private between: (a) a husband and his wife; (b) ‘persons’ each of whom is sixteen years of age or more, both of whom consent to the commission of the act; or (c) ‘persons’ to whom section 20(1) and (2) and (3) of the Children Act apply. (3) An act of ‘serious indecency’ is an act, other than sexual intercourse (whether natural or unnatural), by a person involving the use of the genital organ for the purpose of arousing or gratifying sexual desire.”
The main argument here is to challenge the decision of the judge to engage in a parliamentary amendment in order to regularise a law to suit his interpretation. Whatever the grounds of appeal filed by the State may be, one can only hope that challenging the right of a judge to rewrite the law to the exclusion of Parliament will be an issue.
Furthermore, if there is to be a litmus test applied to potential judges by the Judicial and Legal Service Commission, that test should be to interrogate potential judges about whether they are textual originalists or judicial reformists.
Declaring a law to be unconstitutional ought to result in either the offending sections being expunged or the entire act being declared unconstitutional, void and of no effect.
Indeed, one can conclude that Justice Rampersad is not a textual originalist who will abide by the words of the Constitution as written and not seek to usurp the powers of the Parliament and seek to legislate from the bench.
By comparison, on May 19, 1992, then Mr Justice Aeneas Wills, in delivering judgment in the matter of Curt Mendez v the Transport Commissioner and the Attorney General, held that the Maxi-Taxi Act (Chapter 48:53) was unconstitutional.
According to Wills J: “By virtue of the provisions of Section 13 of the Constitution supra, there is nothing to show that it was an Act which had been declared to have effect even though it was inconsistent with Section 4 of the Constitution.
I, therefore, find that the enacting power of the Legislature was not exercised in accordance with the terms of the Constitution from which it derives its power. In the result, I find that sections 6,7, & 12(f ) are null and void and of no effect.
That is to say, they are unconstitutional.
The matter does not, however, ends (sic) there. Should these sections and Regulations be excised from the Act, would the legislature have enacted what survives without Sections 6 and 7 or section 12?I think not. Moreover, I think the act would be unworkable.”
(HCA No 342 of 1992, p 16).
In this case, Wills J held that the Maxi-Taxi Act of 1979 should have been enacted with a three-fifths majority in both Houses of Parliament.
He had the opportunity to rewrite sections 6, 7 and 12(f ), which he found to be offensive, in order to bring them into compliance and avert the need for unconstitutionality, but he did not. He opted to refrain from trespassing on the parliamentary function and struck down the entire act. Parliament subsequently passed a new Maxi-Taxi Act 1992.
The main argument here is to challenge the decision of the judge to engage in a parliamentary amendment in order to regularise a law to suit his interpretation. Whatever the grounds of appeal filed by the State may be, one can only hope that challenging the right of a judge to rewrite the law to the exclusion of Parliament will be an issue.
I had also pointed out that Justice Rampersad had amended section 16 by deleting the words ‘a male person and a female person’ and replaced them by the word ‘persons’ so that the section now reads as follows: “16. (1) A person who commits an act of serious indecency on or towards another is liable on conviction to imprisonment for five years.
(2) Subsection (1) does not apply to an act of serious indecency committed in private between: (a) a husband and his wife; (b) ‘persons’ each of whom is sixteen years of age or more, both of whom consent to the commission of the act; or (c) ‘persons’ to whom section 20(1) and (2) and (3) of the Children Act apply. (3) An act of ‘serious indecency’ is an act, other than sexual intercourse (whether natural or unnatural), by a person involving the use of the genital organ for the purpose of arousing or gratifying sexual desire.”
The main argument here is to challenge the decision of the judge to engage in a parliamentary amendment in order to regularise a law to suit his interpretation. Whatever the grounds of appeal filed by the State may be, one can only hope that challenging the right of a judge to rewrite the law to the exclusion of Parliament will be an issue.
Furthermore, if there is to be a litmus test applied to potential judges by the Judicial and Legal Service Commission, that test should be to interrogate potential judges about whether they are textual originalists or judicial reformists.
Declaring a law to be unconstitutional ought to result in either the offending sections being expunged or the entire act being declared unconstitutional, void and of no effect.
Indeed, one can conclude that Justice Rampersad is not a textual originalist who will abide by the words of the Constitution as written and not seek to usurp the powers of the Parliament and seek to legislate from the bench.
By comparison, on May 19, 1992, then Mr Justice Aeneas Wills, in delivering judgment in the matter of Curt Mendez v the Transport Commissioner and the Attorney General, held that the Maxi-Taxi Act (Chapter 48:53) was unconstitutional.
According to Wills J: “By virtue of the provisions of Section 13 of the Constitution supra, there is nothing to show that it was an Act which had been declared to have effect even though it was inconsistent with Section 4 of the Constitution.
I, therefore, find that the enacting power of the Legislature was not exercised in accordance with the terms of the Constitution from which it derives its power. In the result, I find that sections 6,7, & 12(f ) are null and void and of no effect.
That is to say, they are unconstitutional.
The matter does not, however, ends (sic) there. Should these sections and Regulations be excised from the Act, would the legislature have enacted what survives without Sections 6 and 7 or section 12?I think not. Moreover, I think the act would be unworkable.”
(HCA No 342 of 1992, p 16).
In this case, Wills J held that the Maxi-Taxi Act of 1979 should have been enacted with a three-fifths majority in both Houses of Parliament.
He had the opportunity to rewrite sections 6, 7 and 12(f ), which he found to be offensive, in order to bring them into compliance and avert the need for unconstitutionality, but he did not. He opted to refrain from trespassing on the parliamentary function and struck down the entire act. Parliament subsequently passed a new Maxi-Taxi Act 1992.
The main argument here is to challenge the decision of the judge to engage in a parliamentary amendment in order to regularise a law to suit his interpretation. Whatever the grounds of appeal filed by the State may be, one can only hope that challenging the right of a judge to rewrite the law to the exclusion of Parliament will be an issue.