WINSTON ANDERSON

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) 10 June 2021, to eliminate the offence of cross-dressing and thus 'give effect to the judgement of the (CCJ)in the case of Quincy McEwan et al vs Attorney General of Guyana.' The bill signaled 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 forecasted in the judgment of the CCJ. My only interest is to emphasize the importance to good governance of responsiveness by government to suggestions by the judiciary for legislative reform.

THE JUDICIARY'S FUNCTION

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.

C'BEAN 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 favored 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 demo