Background Facts

[4] On Friday 6th February 2009 at around 8.30 in the evening, the first two named appellants, Quincy McEwan and Seon Clarke, were awaiting transportation at the corner of North Road and King Street in Georgetown. McEwan was dressed in a pink shirt and a pair of tights along with a black hair piece. Seon Clarke, wearing slippers, had on a jersey and a skirt. A party of police officers passed by in a vehicle. McEwan and Clarke were promptly arrested. They were transported to the Brickdam Police Station. There, they were photographed and instructed to undress. They were then placed in the lockup.

[5] A few hours later, around 3.30 am, the third named appellant, Joseph Fraser, was at the K and VC Snackette in the area of the Stabroek Market. Fraser was having a meal with friends. Seyon Persaud, the fourth named appellant, was in the group. Anthony Bess was also there. Fraser and Persaud were each dressed in a skirt. Each wore a red and black wig.

[6] Persons nearby began to taunt and heckle the members of the group. An altercation ensued. Bottles were hurled at the group. Bess was struck with a stool. Fraser was injured. Fraser and Persaud were both forced to flee for their safety. In the vicinity of Parliament Building, a police vehicle approached them. They were placed in the vehicle. They too were taken to the Brickdam Police Station. At the station, they encountered some of the persons who had earlier attacked them. These persons had reported to the police that they were the victims in the earlier melee and that they had been beaten and robbed by Fraser and Persaud.

[7] While in custody, Fraser made several requests of the police. He demanded that the police take a statement from him of what had transpired at the Snackette. He sought legal counsel. He requested medical attention. He asked for a telephone call. None of his requests was granted. Instead, he and Persaud were lined up in an identification parade and then put in a cell.

[8] They met McEwan and Clarke in the cell. All four spent the weekend there. Neither at the time of arrest nor at any other time during the weekend did they receive any explanation as to why they had been arrested and detained.

[9] On the Monday morning, 9th February 2009, they were all taken to the Georgetown Magistrate's Court. At the court they learned, for the first time, that they had been charged with the offences of loitering and wearing female attire in a public place for “an improper purpose”. Fraser was also charged with damaging a mini-bus and with larceny of a cell phone belonging to the mini-bus driver.

[10]  The 1st – 4th named appellants pleaded guilty to the charge of wearing female attire for an improper purpose. It was more convenient and less expensive to do so than to retain counsel to dispute the charges. McEwan, Clarke and Persaud were fined $7,500. Fraser was fined $19,500. Upon imposing the sentence, the presiding Magistrate made some extraordinary comments. The Magistrate told the 1st – 4th named appellants that they must go to church and give their lives to Jesus Christ. The Magistrate advised them that they were confused about their sexuality; that they were men, not women.

[11]  The loitering charges against the four appellants were subsequently dropped. The other charges against Fraser (damage to the mini-bus and larceny of the cell phone) were also dismissed. But Fraser was placed on a 2-year bond to be of good behaviour.

[12]  Sometime after the proceedings before the Magistrate had ended, the 1st – 4th named appellants held discussions with the Society Against Sexual Orientation Discrimination (SASOD). SASOD is a local human rights organisation. Its objectives include the cause against eradication of homophobia in Guyana and throughout the Caribbean. It undertakes efforts geared towards constitutional reform of discriminatory laws against the LGBTI community and changing societal attitudes towards the LGBTI community to end discrimination.

The Constitutional Proceedings

The issues for determination

[28] The issues before us for determination are no different from those faced by the courts below. The most substantive may conveniently be categorised as follows:

1. (i) Whether section 153(1)(xlvii) violates the 1st – 4th named appellants’ right to equality and non-discrimination guaranteed to them under Article 149 of the Constitution;

2. (ii) Whether section 153(1)(xlvii) violates the 1st – 4th named appellants’ right to freedom of expression guaranteed to them under Article 146 of the Constitution;

3. (iii) Whether section 153(1)(xlvii) offends the rule of law given its vagueness with the use of the terms “improper purpose”, “male attire” and “female attire;

4. (iv) Whether SASOD is a necessary and proper party to the proceedings;

5. (v) Whether the remarks of the Magistrate were appropriate and, if they were not, what consequence, if any, should follow.

Before examining these issues, it is necessary to spend some time first, in placing section 153(1)(xlvii) in its historical context, and secondly, in determining whether the court is barred from testing that section for unconstitutionality. Although both courts below pronounced on the latter, neither paid much attention to the historical context of the section.

The historical context surrounding section 153

[29] Why was section 153(1)(xlvii) enacted? What interests did it serve at the time of its enactment? What interests does it currently serve? These kinds of questions are relevant because of the nature of the challenge made to the constitutionality of the section. To answer them we must turn to historians and social scientists. These academics have an enormous contribution to make to the interpretative process lawyers and judges must undertake. But their efforts are often insufficiently appreciated. We are therefore grateful to counsel for the appellants for the extensive and rigorous research that was conducted and for the rich, ample material provided to assist the Court.

[30] The prohibition against cross-dressing for an improper purpose was enacted in Guyana in 1893, towards the end of the 19th century. The law was part of a suite of laws enacted against vagrancy. These laws were passed in the post-emancipation period, both in the Caribbean and in the United States, to cope with the paradigm shift in the mode of production from slavery to free labour. The laws were designed to regulate and exercise control of both the ex-slave population and, in places like Guyana, the newly imported indentured labourers.Footnote ⁴ The objective was to curtail mobility, to keep close to the plantations those whose labour was essential for continued exploitation. Legal coercion became indispensable to maintaining a ready source of cheap labour in the emerging free labour system.Footnote ⁵ The laws, which also regulated gender and religion, were rigorously enforced by magistrates and police.Footnote ⁶

[31] Legal historian and Dean of the University of Virginia Law School, Professor Risa Goluboff, in her recent book,Footnote ⁷ has noted that:

[32] These views have been accepted and supported by distinguished jurists. Writing about vagrancy statutes and other laws enabling arrest on suspicion, United States Supreme Court Justice William Douglas noted:

He added that:

[33] Unsurprisingly, vagrancy laws ultimately were struck down by the Supreme Court of the United States. They were violative of the rule of law. In Papachristou et al v. City of Jacksonville,Footnote ¹⁰ for example, it was held that the Jacksonville vagrancy law was unconstitutionally vague because it did not give a person of ordinary intelligence fair notice that his or her contemplated conduct was forbidden by the statute.

[34] Section 153(1) is typical of the vagrancy laws of the post emancipation era. The question for determination in this case is whether section 153(1)(xlvii), cross-dressing in public for “an improper purpose”, should remain on Guyana's statute books; at least, in the form in which it currently stands.

The Savings Law Clause

[35] The second preliminary issue we must look at is extremely important. It has overarching significance, not just for this case, but for all cases where a pre-independence law is alleged to be contrary to the fundamental rights laid out in the Constitution. It concerns the question whether section 153(1)(xlvii) is “an existing law”, and, if it is, whether it is therefore immune from judicial scrutiny. This is a fundamental plank upon which the State defends the challenge to the constitutionality of the law. The argument is that, however section 153(1)(xlvii) might infringe the 1st – 4th named appellants’ human rights, the section is nonetheless part of a protected law; a law preserved and protected by a “savings law clause”.

[36] The “savings law clause” is to be found in the Constitutions of all Commonwealth Caribbean States. The Constitution of the State of Belize has the rare distinction of having placed a time horizon on its operation. In Belize, the clause sensibly had effect only for the first five years after the country attained independence. In other States, there is no such explicit time bar. Still, it is useful to bear in mind that, as suggested in Watson v . R,Footnote ¹¹ the general savings clause was included in independence constitutions for a limited purpose – that of securing an orderly transition from colonial rule to independence. After more than 50 years of independence it is quite a stretch to say that Guyana (or indeed any other independent Commonwealth Caribbean state) is still in that transition phase.

[37] Guyana's savings clause is to be found in Article 152 of the Constitution. That Article states, among other things, that nothing contained in or done under the authority of any pre-independence written law shall be held to be inconsistent with or in contravention of any provision of Articles 138 to 149 (inclusive) of the Constitution. Articles 138 to 149 encompass a variety of human rights provisions. The broad effect of the savings clause, read literally by many, is that these human rights, so carefully laid out in the Constitution, must give way to the dictates of a pre-Independence law until and unless the legislature amends the pre-independence law.

[38] Until this Court's recent decision in Nervais,Footnote ¹² it has been the conventional wisdom that the savings clause completely immunised pre-independence laws from being held to be in contravention of the human rights laid out in the Constitution. The courts below adopted the conventional wisdom. They held that the cross-dressing law was an existing law and was therefore “saved” from constitutional challenge; that Article 152 of the Constitution barred the court from declaring section 153(1)(xlvii) to be inconsistent with anyone's fundamental rights.

[39] By shielding pre-Independence laws (referred to as “existing laws”, because they were laws in existence at the time of Independence) from judicial scrutiny, savings clauses pose severe challenges both for courts and for constitutionalism. The hallowed concept of constitutional supremacy is severely undermined by the notion that a court should be precluded from finding a pre-independence law, indeed any law, to be inconsistent with a fundamental human right. Simply put, the savings clause is at odds with the court's constitutionally given power of judicial review.

[40] On 27th June 2018, a day before the hearing of the present appeal, this Court delivered its judgment in the appeals of Nervais v The Queen and Severin v The Queen.Footnote ¹³ In those consolidated cases, the Court addressed the Barbados savings law clause. At [59] of the judgment we noted that:

[41] We reiterate those statements here. Law and society are dynamic, not static. A Constitution must be read as a whole. Courts should be astute to avoid hindrances that would deter them from interpreting the Constitution in a manner faithful to its essence and its underlying spirit. If one part of the Constitution appears to run up against an individual fundamental right, then, in interpreting the Constitution as a whole, courts should place a premium on affording the citizen his/her enjoyment of the fundamental right, unless there is some overriding public interest. That was this Court's approach in Joseph & Boyce Footnote ¹⁴ when we held that, in order to assure a condemned man the right to the protection of the law, a constitutional ouster clause did not prevent the courts from inquiring into the decisions of the local Mercy Committee.

[42] There are at least four broad and interlocking approaches courts can take to ameliorate the harsh consequences of the application of the savings law clause. Firstly, even if one were to apply the clause fully and literally, because of its potentially devastating consequences for the enjoyment of human rights, the savings clause must be construed narrowly, that is to say, restrictively.

[43] Secondly, assuming again a full and literal application of the clause, the clause only saves laws that infringe the individual human rights stipulated in the clause itself. It does not preclude the court from holding a pre-independence law to be invalid if in fact the law runs counter to some constitutional provision that falls outside the specified individual human rights, i.e. in Guyana, Articles 138 to 149 (inclusive). Nor is the savings clause in play if core constitutional principles are violated by the existing law. In other words, only challenges to the stipulated human rights provisions are barred.

[44] Thirdly, application of the clause may result in placing the State on a collision course with its treaty responsibilities and it is a well-known principle that courts should, as far as possible, avoid an interpretation of domestic law that places a State in breach of its international obligations.

[45] The fourth approach is the most contentious. But it has support from very distinguished jurists. It is that courts should first apply the modification clause to the relevant pre-Independence law before attempting to apply the savings law clause. We consider each of these approaches in turn.

Equality and non-discrimination

[61] The Co-operative Republic of Guyana is an indivisible, secular, democratic and sovereign nation.Footnote ²⁸ Its most precious civic values are laid out in the country's Constitution. The Constitution's Preamble indicates the determination of the Guyanese people to “forge a system of governance that promotes concerted effort and broad-based participation in national decision-making in order to develop a viable economy and a harmonious community based on democratic values, social justice, fundamental human rights, and the rule of law”. The Constitution proclaims that the people of Guyana celebrate their “cultural and racial diversity and strengthen [their] unity by eliminating any and every form of discrimination…”Footnote ²⁹ In adjudicating complaints of human rights infringements, this Court must be guided by these statements of fundamental principle.

[62] Article 149(1) of the Constitution protects the people of Guyana from discrimination. No law can be enacted that is discriminatory of itself or in its effect.Footnote ³⁰ No one is to be treated in a discriminatory manner by any person acting in the performance of the functions of any public office or any public authority.Footnote ³¹ The word “discriminatory” is specifically defined. It means

# Article 149D (1) provides that “The State shall not deny to any person equality before the law or equal protection and benefit of the law”. Of course, as is the case with other fundamental rights, the right not to be discriminated against is not enjoyed at large. The Constitution itself lays down exceptions and qualifications which may impact on the enjoyment of the right: Article 149 (3)-(7). Parliament may, for example, properly enact legislation limiting or impinging fundamental rights if such legislation is reasonably required in the interests of, inter alia, public order, public morality,Footnote ³³ or for the purpose of protecting the rights and freedoms of other persons, including the right to practice and observe any religion,Footnote ³⁴ or that imposes restrictions upon public officers.Footnote ³⁵ Any such limitation should be demonstrably justified in a democratic society.Footnote ³⁶ In other words, the infringing law must pursue some pressing objective and be rationally connected to that objective. The infringing law should impair only such of the right as is necessary to be impaired. And there must be proportionality of effects between the deleterious and salutary effects of the infringing law in question.Footnote ³⁷

[63] The appellants submitted that the cross-dressing law infringes their fundamental rights because it is rooted in gender stereotypes of how women and men should dress. They say that the section treats transgendered and gender non-conforming persons unfavourably by criminalising their gender expression and gender identity in violation of Article 149D of the Constitution. That Article focuses squarely on inequality before the law and is distinct from, albeit complementary to, Article 149(1) which prohibits discrimination on specified grounds.

[64] At the heart of the right to equality and non-discrimination lies a recognition that a fundamental goal of any constitutional democracy is to develop a society in which all citizens are respected and regarded as equal. Article 149 gives effect to this goal. The Article signifies a commitment to recognising each person's dignity and equal worth as a human being despite individual differences.

[65] The Inter-American Court of Human Rights has repeatedly made the link between equality and dignity. In its Advisory Opinion on Proposed Amendment to the Political Constitution of Costa Rica related to Naturalization, the Court said at paragraph 55:

[66] The constitutional promise of equality prohibits the State from prescribing legislative distinctions or other measures that treat a group of persons as second-class citizens or in any way that otherwise offends their dignity as human beings. To safeguard equality rights, courts must adopt a substantive approach. Ensuring substantive equality might require equal treatment for those equally circumstanced, different treatment for those who are differently situated, and special treatment for those who merit special treatment.Footnote ³⁹ Paying regard to mere formal equality could lead to grave injustice and defeat the spirit of the equality provisions.Footnote ⁴⁰ Critical to the adoption of a substantive approach is the need to examine the impact or effect of a challenged measure. The judge at first instance was in error when he took the view that there was no discrimination here because, among other things, section 153(1)(xlvii) is “directed against the conduct of both male and female persons”.

[67] A substantive approach was applied in the Belizean case of Roches v Wade.Footnote ⁴¹ The case concerned a school's policy of dismissing teachers who had children out of wedlock. When challenged as to the discriminatory nature of the policy, the school argued that the policy applied equally to both male and female teachers. The argument was rightly dismissed by Conteh, CJ who noted at paragraph [51]:

[68] At its core, the principle of equality and non-discrimination is premised on the inherent dignity of all human beings and their entitlement to personal autonomy. There is a marked link between gender equality, self-determination and the limits placed on self-determination by gender stereotypes. The CEDAWFootnote ⁴² Committee has noted that:

[69] Jamadar J (as he then was) has pointed out that “a court is entitled to consider granting constitutional relief, where the claim is that a person has been discriminated against by reason of a condition which is inherent and integral to his/her identity and personhood. Such discrimination undermines the dignity of persons, severely fractures peace and erodes freedom.”Footnote ⁴⁴ The Canadian Supreme Court Justice, Iacobucci J, states that human dignity relates to a person's self-respect and self-worth. It is harmed “by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits.”Footnote ⁴⁵ It is also harmed

[70] A society which promotes respect for human rights is one which supports human development and the realisation of the full potential of every individual. The hostility and discrimination that members of the LGBTI community face in Caribbean societies are well-documented.Footnote ⁴⁷ They are disproportionately at risk for discrimination in many aspects of their daily lives, including employment, public accommodation, and access to State services.

[71] The 1st – 4th named appellants here, by choosing to dress in clothing and accessories traditionally associated with women, are in effect expressing their identification with the female gender. And the expression of a person's gender identity forms a fundamental part of their right to dignity. Recognition of this gender identity must be given constitutional protection.

[72] Although it is true that cross dressing is practiced by persons of several types of sexual orientation, both on its face and in its application, section 153(1)(xlvii) has a disproportionately adverse impact on transgendered persons, particularly those who identify with the female gender. It infringes on their personal autonomy which includes both the negative right to not be subjected to unjustifiable interference by others and the positive right to make decisions about one's life. The formulation and operation of section 153(1)(xlvii) also reinforce stereotyping. The section conduces to the stigmatisation of those who do not conform to traditional gendered clothing. But most of all, the fact that it criminalizes aspects of their way of life, thus enabling the State to unleash its full might against them, cannot, in all the circumstances, be reasonably justified. It is therefore, in our view, that section 153(1)(xlvii) violates Articles 149(1) and 149D of the Constitution.

Freedom of expression

[73] The appellants also claimed that section 153(1)(xlvii) infringes freedom of expression as guaranteed under Article 146. The courts below denied the appellants’ claim. Those courts reasoned that section 153(1)(xlvii) does not criminalise cross-dressing as such; that it only criminalises dressing in the clothing of the opposite sex for an improper purpose and that there was nothing wrong with such a law.

[74] Article 146 of the Constitution gives every Guyanese the right to hold and communicate ideas and opinions without interference. Like other rights, this one may be qualified by laws that make provision for that which is reasonably required in the interests of, inter alia, defence, public safety, public order, public morality or public health. We note in passing that, in this case, no submissions were made to suggest that this case is concerned with any of these exceptions.

[75] Because it underpins and reinforces many of the other fundamental rights, freedom of expression is rightly regarded as the cornerstone of any democracy. A regime that unduly constrains free speech produces harm, not just to the individual whose expression is denied, but to society as a whole. On the one hand, the human spirit is stultified. On the other, social progress is retarded. The fates of brilliant persons like Galileo, and Darwin, and countless others, sung and unsung, betray a familiar pattern in the history of humankind. Today's heresy may easily become tomorrow's gratefully embraced orthodoxy.

[76] It is essential to human progress that contrary ideas and opinions peacefully contend. Tolerance, an appreciation of difference, must be cultivated, not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.Footnote ⁴⁸ A person's choice of attire is inextricably bound up with the expression of his or her gender identity, autonomy and individual liberty. How individuals choose to dress and present themselves is integral to their right to freedom of expression. This choice, in our view, is an expressive statement protected under the right to freedom of expression.

[77] These conclusions are not novel. The Indian Supreme Court in National Legal Services Authority v Union of India and Ors Footnote ⁴⁹ reached a similar determination when it held that expression of one's identity through words, dress, action or behaviour is included in the right to freedom of expression under the comparable Article of the Indian Constitution.Footnote ⁵⁰ Other courts have also arrived at similar conclusions.Footnote ⁵¹

[78] Like other rights, however, freedom of expression is subject to the reasonable limitations imposed by the Constitution. These limitations must be established by law and be demonstrably justified in a free and democratic society. Throughout these proceedings, the State has sought to validate section 153(1)(xlvii) by suggesting that there was nothing wrong with cross-dressing as such but that it was the “improper purpose” that rendered cross-dressing in public objectionable. At paragraphs [80] to [85] we address more specifically this nebulous concept of an “improper purpose”. But for the moment, it is instructive to note that it was the mere appearance of McEwan and Clarke, as they stood awaiting transportation at the corner of North Road and King Street, dressed in “female clothing”, that resulted in them being arrested, detained, charged, prosecuted and convicted. No “improper purpose” was or could have been attributed to them.

[79] No one should have to live under the constant threat that, at any moment, for an unconventional form of expression that poses no risk to society, s/he may suffer such treatment. But that is the threat that exists in section 153(1)(xlvii). It is a threat particularly aimed at persons of the LGBTI community. The section is easily utilised as a convenient tool to justify the harassment of such persons. Such harassment encourages the humiliation, hate crimes, and other forms of violence persons of the LGBTI community experience. This is at complete variance with the aspirations and values laid out in the Guyana Constitution and referred to at [62] above

Vagueness of section 153 (1) (xlvii)

[80] A penal statute must meet certain minimum objectives if it is to pass muster as a valid law. It must provide fair notice to citizens of the prohibited conduct.Footnote ⁵² It must not be vaguely worded. It must define the criminal offence with sufficient clarity that ordinary people can understand what conduct is prohibited.Footnote ⁵³ It should not be stated in ways that allow law enforcement officials to use subjective moral or value judgments as the basis for its enforcement. A law should not encourage arbitrary and discriminatory enforcement.Footnote ⁵⁴

[81] Section 153 (l) (xlvii) fails these tests. No details or examples of conduct that would fall under the umbrella of “improper purpose” are discernible, whether in the specific law itself or elsewhere. The cross-dressing person has no clue, and receives no guidance, as to whether contemplated conduct is forbidden by the statute. The section facilitates discriminatory application.

[82] It was suggested to us by the Solicitor General that any potential vagueness could be removed if, when a person is charged, details are given of the improper purpose that prompted the laying of the charge. This is not an effective solution to the problem. It seeks to cure the vagueness after the individual has been arrested for the offence. On the contrary, individuals require advance notice of any proscribed conduct so as to regulate their behaviour so as to avoid getting into trouble.

[83] If, as the courts below insisted, the cross-dressing was by itself not really an issue, but the “improper purpose” was in fact the essence of the offence, then two things readily suggest themselves. Firstly, by criminalising only a purpose, and a vague, undefined and extremely broad one at that, the offence represents an unprecedented extension of criminal liability. Secondly, the alleged improper purpose must necessarily itself relate to the taking of some step to commit a known offence. In the latter case the law is entirely otiose as, without it, the individual may still be prosecuted for committing or attempting to commit that other known offence.

[84] Layered on top of this is the premise, inherent in the law, that there is attire that is wholly and exclusively male or female. This is not borne out by everyday practice. Indeed, many clothing establishments advertise and sell unisex clothing. Section 153(1)(xlvii) is therefore predicated on the faulty notion that outward attire is necessarily exclusively male or female. The fact that no one can say with certainty what an ‘improper purpose’ is or what male or female attire looks like, leaves transgendered persons in particular in great uncertainty as to what is and is not allowed. And to aggravate that injustice, it gives law enforcement officials almost unlimited discretion in their application of the law.

[85] The rule of law requires that legislation which is hopelessly vague must be struck down as unconstitutional.Footnote ⁵⁵ For all these reasons we hold that section 153(1)(xlvii) is unconstitutionally vague and, as it stands, fulfils no legitimate purpose.

Locus Standi of SASOD

[86] Counsel for the State conceded that while SASOD has a right under the Constitution to act in a representative capacity to advocate on behalf of its members, SASOD had nevertheless not put forward any submissions materially different from the 1st – 4th named appellants. Indeed, SASOD and the other appellants were represented by the same counsel. It was further stated that since the persons whose rights were allegedly infringed had themselves filed suit, there was no basis for SASOD also to be a party to the proceedings and that having SASOD as a party would unnecessarily add to the costs because, if costs were awarded against the State, SASOD would be an additional party to whom costs would have to be paid. The Court of Appeal accepted these submissions as justification for striking out SASOD as a party to the proceedings.

[87] The Court of Appeal did not, in our view, sufficiently appreciate that the appellants were not only challenging the constitutionality of the treatment suffered by the 1st – 4th named appellants. The appellants, and SASOD in particular, were also challenging, in the abstract, the constitutionality of a legal provision; a provision which, if it remained on the statute books, could easily be applied in the future to any member of the general public including members of SASOD. Had the courts below paid greater attention to that factor they would have come to a different conclusion since there can be little doubt that SASOD has a real and genuine interest in the legislation under challenge.

[88] In constitutional proceedings, courts should adopt a liberal approach in affording standing to individuals and entities. It is in the public's interest to ensure that the Constitution is properly interpreted and applied, and the rule of law vindicated. Jamadar JA stated in Dumas v The Attorney General,Footnote ⁵⁶

Given SASOD's objectivesFootnote ⁵⁸ there is no good reason why the courts below should have struck it from the proceedings.

[89] The award of costs is an entirely separate issue. Costs are always in the discretion of the court. One must expect that courts would make sensible and rational costs awards. There is equally no good reason why (in the event the State unsuccessfully defended these proceedings) any court would award separate costs to be paid both to SASOD and to the other appellants when they were all represented by the same counsel.

The remarks of the Magistrate

[90] The remarks made by the Magistrate, after sentencing the 1st – 4th named appellants, while the Magistrate was still sitting, were inappropriate. The courts below should not have excused those remarks. Judicial officers may not use the bench to proselytise, whether before, during or after the conclusion of court proceedings. Secularism is one of the cornerstones upon which the Republic of Guyana rests. But these remarks went beyond proselytising. They revealed stereotypical thinking about transgendered persons. It is not possible to know whether the 1st – 4th named appellants would have been dealt with differently by a Magistrate with impartial views about persons of the LGBTI community. On the charge being read, a more informed Magistrate may have, for example, rejected the Guilty pleas and stated a case for the Constitutional court; or, recorded a conviction but discharged the 1st – 4th named appellants; or taken some other step short of the punishment which was actually recorded against the 1st – 4th named appellants.

[91] Section 144 of the Constitution promises all persons charged with a criminal offence a fair hearing by an impartial tribunal. By reason of the remarks made by the Magistrate, the 1st – 4th named appellants would have been justified in believing that in their case this promise was not manifested.

Remedies

[92] In Maya Leaders Alliance v. Attorney General of Belize,Footnote ⁵⁹ this Court stated that, “the power … granted to the courts to provide redress for constitutional infractions confers a broad discretion to fashion effective remedies to secure the enforcement of constitutional rights.” For all the reasons that have been given above, it is our view that section 153(1)(xlvii) is entirely inconsistent with the Constitution of the Co-operative Republic of Guyana and that, further, the section ought not to be regarded as “an existing law”. It is therefore susceptible to being struck down in lieu of being modified. In all the circumstances, the provision should be rendered void.

[93] In these proceedings, the 1st – 4th named appellants elected not to challenge the validity of the convictions and sentences that had been recorded against them in the Magistrate's Court proceedings. Instead, the appellants were concerned here only with prospective remedies. This may have been a prudent course adopted by Counsel for the appellants to avoid any objection that their constitutional challenge was a collateral attack on their convictions. Nevertheless, the declaration of the invalidity of section 153(1)(xlvii) operates retrospectively. It is for the appellants and their Counsel to determine what course of action, if any, they may wish to take in light of the judgment and Orders of the Court in these proceedings which are outlined at [147] below.

The Historical Context

[113] The Summary Jurisdiction (Offences) Act appears to have been the result of a consolidation exercise as indicated in the description of the Act which explains that the legislation is “An Act to consolidate and amend the Laws relating to Procedure with respect to Offences punishable on Summary Conviction”. There does not appear to have been any significant amendments to the challenged provision since its enactment, save for adjustments to the stipulated penalty. These collective offences under section 153 are essentially offences of vagrancy. Counsel for the appellants in both written and oral submissions referred us to several helpful authorities which extensively detail the social and historical circumstances surrounding the enactment of the challenged section and statute in the post-emancipation era. These authorities generally highlight the point that vagrancy and related laws sought to legislate new forms of labour coercion to maintain the viability of the plantation enterprise after emancipation. Professor Rose-Marie Belle Antoine has observed:

[114] It is against this backdrop that these vagrancy provisions were transplanted from the statutes of the Westminster Parliament to the Caribbean region. The English legislation, specifically the various Vagrancy Acts, sought to regulate the activities of vagabonds, beggars and idle persons in England. The English legislation dealing with vagrants was linked with the law regulating poverty and paupers. In Ledwith v Roberts Footnote ⁷⁷ Scott L.J. summarised the background to the English vagrancy laws as follows:

[115] While vagrancy legislation was transported to several Caribbean territories,Footnote ⁷⁹ Guyana appears to be the only territory in the region to have enacted the specific provision found in section 153(1)(xlvii). It is noteworthy that this exact provision formed part of the law of British Guiana and dates back to 1893.Footnote ⁸⁰ Several other territories outside of the Caribbean, including a number of cities and states in the United States to which we were referred, had similar laws regulating dress. Similar to the challenged section in this appeal, these territories often made gendered clothing laws part of wider vagrancy enactments. In the 1970s, United States courts began to hear challenges to such laws on both freedom of expression and vagueness grounds, some of which are highlighted below. The courts generally took the view that, taking into account contemporary changes in the manner and style of dress, such ordinances were unconstitutionally vague since clothing for both sexes was so similar that it would be difficult for a person of common intelligence to identify any particular item as either male or female clothing. This logic appears to have been employed to strike down these laws in a number of cities in the United States. In the United Kingdom certain sections of the original UK Vagrancy Act 1824 which effectively criminalise “begging” remain in force in England and Wales. However, in 1982 the entire 1824 Act was repealed in Scotland by the Civic Government (Scotland) Act. Section 18 of the Firearms and Offensive Weapons Act 1990 (Ireland) repealed section 4 of the 1824 Act (begging and vagrancy) in Ireland.

Protection of the Law

[116] The common thread underlying the appellants’ submissions is that the specific use of the terms “improper purpose”, “male attire” and “female attire” in constituting the elements of the offence, section 153(1)(xlvii) of the Act is so vague that it renders the section a violation of their right to the protection of the law guaranteed to them by Articles 40 and 144 of the Constitution. Article 40(1) of the Constitution provides that:

[117] The fundamental rights and freedoms of the individual referred to in section 40 (1) are provided for in section 40 (2) which makes reference to the provisions of Title 1 of Part 2 and encompasses inter alia, the protection of the right to life,Footnote ⁸¹ personal liberty,Footnote ⁸² from deprivation of property,Footnote ⁸³ freedom of conscience,Footnote ⁸⁴ freedom of expression,Footnote ⁸⁵ freedom of assembly, association and demonstrationFootnote ⁸⁶ and provisions to secure the protection of the law.Footnote ⁸⁷ Article 144 (1) which provides for the protection of the law states that every person charged with a criminal offence shall be afforded a fair hearing by an independent and impartial court. The appellants argued that the right to protection of the law enshrined in Article 144 is one of the fundamental rights and freedoms alluded to in section 40 (2). It was further argued that the right to protection of the law was not limited to the detailed provisions outlined in Article 144.

[118] This argument is not without merit, since this Court in its jurisprudence has repeatedly emphasised that the right to the protection of the law is a broad and expansive right. In Attorney General of Barbados v. Joseph and Boyce,Footnote ⁸⁸ this Court held that a condemned man has a right to the protection of the law. At [60] of the joint judgment of de la Bastide PCCJ and Saunders JCCJ (as he then was), the Court observed:

[119] Wit JCCJ in a separate judgment considered that the right to protection of the law was far-reaching in its scope and that the multi-layered concept of the rule of law infuses the Constitution with other fundamental safeguards such as rationality, reasonableness, fundamental fairness and the duty to protect against abuse and arbitrary exercise of power. He noted that:

[120] In Maya Leaders Alliance v. Attorney General of Belize Footnote ⁹⁰ this Court held that the evolving concept of ‘protection of law’ encompassed the responsibility of the State to comply with its international obligations. The Court concluded at [47] that the right to the protection of the law:

[121] In the Court's recent landmark decision in Nervais v The Queen and Severin v The Queen,Footnote ⁹¹ this Court found that the mandatory death penalty in Barbados breached the right to protection of the law as it deprived a court of the opportunity to exercise the quintessential judicial function of tailoring the punishment to fit the crime. The Court noted that Joseph and Boyce examined the ambit of the right to protection of the law which incorporates those fundamental rules of natural justice embedded in the common law of England. The Court at [45] noted:

[122] Courts have taken the view that vague statutes fail to give sufficient notice to the public, lead to arbitrary and discriminatory enforcement and represent an unwarranted delegation to law enforcement. Criminal statutes which are vaguely drawn operate as a threat to the balance of power between the state and the individual. There is an added dimension of statutory certainty which is connected to the notion that governments must operate by rules. This serves to protect the autonomy of the citizens by setting forth, in a manner that is done publicly and in advance, the parameters of any proscribed activity. As noted by legal philosopher Lon L. Fuller articulated in his seminal work “The Morality of Law”:Footnote ⁹³

[123] In, R v Nova Scotia Pharmaceutical Society,Footnote ⁹⁵ a leading case of the Supreme Court of Canada, the court examined in detail section 7 of the Canadian Charter of Rights and Freedoms, which was a constitutional provision that protected an individual's autonomy and personal legal rights from actions of the government. The Supreme Court of Canada ultimately determined that laws could be struck down as a violation of section 7 where they were so vague that they violated fundamental justice. Gonthier J., writing for the court, established the “legal debate” test for vagueness:Footnote ⁹⁶

[124] These statements highlight that the overarching rationale of this test is to balance the need for clarity with the desire to grant the legislature a sufficient margin of manoeuvre to enact general laws and delegate the discretionary authority that is necessary to realise the ends of public policy. Also encapsulated in the above test are two critical factors – fair notice and the control of discretion. These concepts were advanced to us at length in the written and oral arguments of counsel for the appellants in relation to the vagueness of the challenged section.

Victorian values

[133] Section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act dates back to 1894, and in interpreting this criminalization of cross-dressing it is necessary to consider the social and moral values that operated at that time in England and the colonies, including British Guiana, during the reign of Queen Victoria. Those were the values that led to the passing of this type of legislation in the metropolis and in Guyana. The Victorian fervour to suppress homosexuality is well documentedFootnote ¹⁰³ and it was against related conduct that the section was directed.

[134] As demonstrated by the notorious Victorian case, next discussed, of R v Boulton,Footnote ¹⁰⁴ because sodomy was performed in private, it was often impossible to prove the commission of the crime, which had only ceased being a capital offence in 1861, when it became punishable by life imprisonment.Footnote ¹⁰⁵ It was expedient to target associated conduct and section 153(1)(xlvii) served that objective.

Inference of purpose

[135] The section created the offence of cross dressing for an improper purpose. It follows that the dressing had to be connected to the purpose: as counsel on both sides agreed, the offence was directed to cross dressing in furtherance of the purpose. Cross dressing, in itself, was not a crime and was not targeted by the section. In targeting the improper purpose, the stratagem the law employed was to premise that the purpose was to be inferred from the fact of so dressing; that the dressing was done to facilitate and further the purpose. It was a virtual certainty that the ordinary observer would conclude that a man dressed as a woman, in a public place, was intending to attract attention and treatment as a woman; especially sexual attention.

[136] The respectability of this premise is demonstrated by R v Boulton Footnote ¹⁰⁶ in which two men dressed as women were arrested in front of the Strand Theatre in London, and tried on indictment along with others on fourteen counts relating to homosexuality, including “conspiracy to commit, or to incite to the commission of felonious and unnatural crime.”Footnote ¹⁰⁷ The allegations followed two lines; a general conspiracy to debauch the public and separate conspiracies to debauch each other. In his summing up to the jury, which acquitted the men, Cockburn CJ directed that,

[137] The words of the Lord Chief Justice make clear that the cross dressing of the defendants, which was proved to be their common practice, was regarded in law as amounting to “great indecency and impropriety of conduct” and that this conduct of cross dressing was a proper basis for the jury to have drawn the inference that the defendants had the intention to incite persons to commit an unnatural offence. That reality was underscored by the judge's direction that this inference was rebutted by the evidence that the defendants bought the dresses for theatrical performances. It is inescapable that, had there not been the rebutting evidence of this lawful purpose in purchasing the dresses, the jury could properly have convicted the defendants by drawing the inference that the men cross dressed for an improper (and unlawful) purpose, that is, to incite the commission of homosexual conduct.

[138] At a basic level, Boulton is authority for the proposition that a court may conclude that the conduct of cross dressing gives rise to a presumption or inference that it is done for the purpose of inciting the commission of an unnatural crime. The proposition is easily applied to section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act, so that, on a prosecution for this offence, there is no need for the prosecutor to adduce evidence to prove more than the facts that (i) a man was attired (ii) in female clothing, and (iii) in a public place or way; the improper purpose is inferred from the fact of the attire. It should be recalled that the section 153(1)(xlvii) offence is made out by the court inferring merely an ‘improper purpose’; the purpose inferred does not need to rise to ‘unlawful’. The summing up of Lord Cockburn CJ in Boulton settles that by cross-dressing a person is already prima facie guilty, as a matter of inference, of “great indecency” and “improper conduct” and of intending to incite the commission of homosexual conduct. There is no need to prove any other or other specific improper purpose.

[139] The inference identified in Boulton is confirmed to be orthodox legal theory, at the time, by looking in the Guyana legislation itself, at section 146, which provides:

[140] It is not to the point that this statutory facilitation of proof of purpose or intent applies to prosecuting persons for possession of articles to be used in connection with the practice of obeah or witchcraft, and not to the offence of cross dressing. Its relevance is that this provision demonstrates the nature of the presumptions or inferences against accused persons that the law makers at the time thought fit to provide, especially against the lower rank of persons. As section 146 stated, it was not necessary to prove the doing of any act by an accused to establish his unlawful purpose or intent; it was sufficient that it appeared to the court, from the circumstances of the case and the known character of the accused, that his purpose was unlawful.

Pre-human rights law

[141] Modern conceptions of human rights and constitutionalism that the appellants invoked, including protection from discrimination on the ground of sex and gender under Article 149 (1) of the Constitution, the right to equality and to equal protection and benefit of the law under Article 149D, and the right to freedom of expression under Article 146 of the Constitution were not even glimmers on the Victorian legal horizon. The offences created in the Act were in tune with the ‘Poor Laws’ of that age in England (and the colonies), intended to keep the dispossessed and depressed under control; they were directed at ‘vagrants’ and ‘beggars’ and ‘rogues and vagabonds’. The object of these laws was not to promote fairness, social justice or equality.

[142] The cross-dressing proscription, along with many other provisions in the Act, such as declaring a man be a vagabond and subject to a fine because he does not work and support himself or his wife when capable of so doing,Footnote ¹⁰⁹ is a law that belonged to a different time. It criminalized the expression of sexual orientation and gender identification at a time when State intrusion of that nature was the norm and human rights were, at best, a developing intellectual concept. This was not the age of liberal democracy; sovereignty did not belong to the people,Footnote ¹¹⁰ as Article 1 of the 1980 Guyana Constitution was later to proclaim. Laws of the nature of section 153(1)(xlvii) were directed to keeping the masses in their place. It seemed contrarian, therefore, that the State, whose Constitution proclaims it to be in transition from capitalism to socialismFootnote ¹¹¹ and champions fundamental rightsFootnote ¹¹² proclaimed long ago in the Universal Declaration of Human Rights of 1948, should have argued for the presumption of constitutionality to benefit a law such as section 153(1)(xlvii).

Caution against judicial legislating

[143] In both his written and oral submissions, counsel for the State urged that the judiciary should be cautious not to succumb to deciding on social policy and effecting legislative reform, as these are the remit of the Executive and the Legislature. There can be no gainsaying the value of this caution or wish for it to be otherwise, and judges are often uneasy when the performance of the judicial function becomes exposed to concerns about intrusion into the purview of the other branches of government. However, what Mr. Ramkarran's caution against ‘judicial legislating’ fails to comprehend is that challenges to existing legislation, which seek to achieve reform that is properly the business of the legislature, are not challenges created or initiated by the judiciary; they are challenges that the Constitution gives aggrieved persons the right to make and they are challenges that the courts must (not may) hear and determine, once satisfied that they are justiciable.

[144] The certain way for the legislature to keep the courts from becoming engaged with legislative reform, as counsel apprehended may be involved in the adjudication of the challenge to section 153 is for the legislature itself to undertake that reform. In this regard, it is appropriate to mention also that it is not every law that the executive must feel obliged to defend against challenge. It is proper for a government to acknowledge that a law is long past its “sell-by date” and serves no social or legal purpose. With respect, the soundness of that approach in this case is not reduced by the effort of the Court of Appeal to ascribe value to the section by giving the example of using it against a man who dresses in female clothing to commit robbery. It is difficult to resist the response that the society is not benefitted from retaining a law under which to charge a robber for cross-dressing, which carries a minimum fine of G$7,500.00 (or US$35.00) when the offence to charge is robbery, which carries a sentence of imprisonment for 14 years.Footnote ¹¹³

Saving of existing law

[145] As the law stood when the appellants presented their challenge to section 153(1)(xlvii) in the courts below, the State had a legal basis (if not philosophical or practical justification) for arguing that this section was protected by Article 152 of the Constitution, which saved existing laws from declarations of invalidity for inconsistency with the Constitution. This Court's decision in Nervais and Severin v R,Footnote ¹¹⁴ delivered just one day before the instant appeal was argued, has now definitively established that the savings law provision in the Constitution of Barbados does not make existing laws immune from declaration of invalidity for inconsistency with the Constitution. This determination is equally applicable to the laws and Constitution of Guyana and, therefore, section 153(1)(xlvii) is no longer to be regarded as saved from being declared inconsistent with the Constitution. To be fair, it must be noted that at the time of argument before this Court counsel for the State had not had time to read the decision in Nervais on the effect of the savings clause. It may be that if the decision on the savings clause had come at an earlier point in the life of the instant proceedings, the State may have taken a different course in responding to the challenge to section 153(1)(xlvii).

[146] For the reasons detailed in the judgment of the Court, delivered by the President, the highly undemocratic section 153(1)(xlvii) is inconsistent with the several Articles of the Constitution stated and must be declared void for that inconsistency.

Disposition and Orders

[147] In light of the foregoing, the Court makes the following declarations and orders:

1. i. The appeal is allowed and the cross-appeal dismissed;

2. ii. SASOD has standing to join in these proceedings and the Order striking it out as a party is set aside;

3. iii. The judgment and other orders of the Court of Appeal are set aside;

4. iv. Section 153(1) (xlvii) violates the right to equality and non-discrimination guaranteed under section 149 and 149D of the Constitution;

5. v. Section 153(1) (xlvii) violates the right to freedom of expression guaranteed under section 146 of the Constitution;

6. vi. Section 153(1) (xlvii) is unconstitutionally vague and offends the rule of law;

7. vii. Section 153(1) (xlvii) is struck from the Summary Jurisdiction (Offences) Act, Chapter 8:02 of the Laws of Guyana; and

8. viii. The appellants are entitled to their costs here and in the courts below; the said costs to be a single sum for the Appellants jointly, to be assessed, if not agreed.