Statutes and Case law

As personnel of the judicial branch of government, the duty of the judge in the court is to interpret the law not to make laws. The duty to make the law resides in Parliament, that is, the legislative branch of government. But case laws are usually regarded as judge made laws.

Laws come about not only because of customs but because of the experience of people as a result of the interaction in a society. Many of our laws have their origin in morality and ethics. On the whole, actions which are detrimental and dangerous to a society are normally suppressed by way of laws with sanctions attached. There are, however, laws which merely give direction or procedure in the case of those which regulate trade and commerce.{{more}} As society develops there is always the need for new laws and especially to regulate technology. The need to introduce new laws to regulate the internet has been identified.

In many instances parliamentarians respond to the voice of the people. They may introduce a bill to prevent a wrong or to prevent suffering or to cause people to act in a particular way. This is seen in the recent bill in relation to the wearing of helmets by motor bike riders. For a long time there has been a popular call for bikers to wear protective head gear because many of the deaths in accidents have occurred because persons were not wearing helmets. The bill has become an act.

When parliamentarians wish to legislate on a particular matter, a bill must be formally introduced in Parliament. The process is initiated with the first reading where the title and aims are given. At the second reading it is debated and if it captures the majority vote it would proceed to the next stage. The next stage is the committee stage where a Standing Committee goes through the bill clause by clause and makes amendments. The amended bill is reported to parliament for acceptance. A third reading takes place and the bill is debated. Minor amendments are made and a vote is taken. It becomes an act after it receives the Governor General’s assent and is published in the Government’s Gazette.

Legislation or acts are given approval by our constitution. Legislations have their origin in the Common Law of England. Although England has no written constitution as we do its laws lie in the various conventions and statutes of Parliament. Most of our laws were received from England.

Judges’ decisions most often, stay within the confines of the legislation. They must examine the laws closely when they adjudicate. They must also follow precedents which would have been decided on the basis of the law. If there is an anomaly in the legislation, judges could make recommendation to Parliament for amendment. In the judgement of Newton Spence v The Queen which was delivered by the Judicial Committee of the Privy Council in 2001 their Lordships suggested that “consideration might be given to amending section 15 of the Jury Act so as to give judges in St. Vincent and the Grenadines a wider discretion along the lines of that provided by section 16 of the Juries Act 1974 (England and Wales.” They opined that it must be a matter for the St. Vincent legislature and not for their Lordships”

In interpreting the law, judges establish principles, as for example, in the famous case of Pratt & Morgan v The Attorney General, (No. 10 of 1993) the Privy Council decided that more than five years on death row constitutes “inhuman or degrading punishment or other treatment” and is contrary to the constitutional rights of the appellants.

• Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com