As July speedily comes to a close, our minds will turn once again, to the celebration of emancipation. What does it mean to be emancipated? It is quite simply the state of being free: from both restriction and influence. As we celebrate emancipation this year, we must look inwards and ponder is Guyana truly emancipated?

When we think of Guyana, we think of an independent nation, with its own constitution and parliament, but how many of us are aware that within our constitution lie remnants of our colonial rulers. Perhaps, most importantly something known as a ‘savings clause’.  A saving clause such as the one present in our constitution “purports to carry forth all the laws from the old regime.”  (M. Burnham, 2005). This means that within our constitution not only are all of the laws from our former colonial rulers carried forth, but also they cannot be repealed. This clause stagnates Caribbean society. It does not take into account the progression of society, along which comes the changing of values and morals, but rather tethers us to a definition of ‘just’ provided by our former colonial rulers, from a point in history long past.  A great example of just how backwards this clause can be is shown in the case of the death penalty. In England in 1965, after much debate, the death penalty was abolished, yet Caribbean countries retained these laws. Even though modern English society had decided that the death penalty should be abolished, we were stuck upholding the laws.

To summarize, as Sheila I. Velez-Martinez, put it, “The savings clauses inserted in the independent constitutions across the Caribbean serve to perpetuate laws that were not products of the independent nations’ own desires; not the result of deep reflection about the nature and direction of the new Caribbean societies.”

In 2013, the savings clause surfaced, when Justice Ian Chang ruled that a law from our former colonial masters was not unconstitutional, and therefore under the said savings clause was protected from challenge. The particulars of the case were that seven transgender persons were charged with cross-dressing for an ‘improper purpose’, under the law which states that, “Every person who does any of the following acts shall, in each case, be liable to a fine of not less than seven thousand nor more than; (xlvii) being a man, in any public way or public place, for any improper purpose, appears in female attire; or being a woman, in any public way or public place, for any improper purpose, appears in male attire.”

Moreover, Chang ruled that the law was not discriminatory, as it applies to men and women equally. However, as columnist Alissa Trotz pointed out in 2013, “We could come up with other examples to show how this thinking is deeply flawed and short-sighted, say a ruling that upholds a racist law that criminalizes inter-racial marriages between Indians and Chinese, arguing that since both Indians and Chinese are equally liable to face charges and go to jail if they intermarry, then the law is not racially discriminatory. In short, what this judgment says is that the law is not discriminatory because men and women are equally vulnerable to its discriminatory provisions.”

Chang did however rule, that cross-dressing is not illegal in itself unless it is done for an improper purpose. However, what constitutes an improper purpose was left woefully undefined. In fact, if we look at the law itself, we can see that it too, is incredibly vague. What constitutes “male attire”, and what constitutes “female attire”?

The law leaves much up to the discretion of the person who is enforcing it. Who is to determine what is proper for males to wear vs. what is proper for females to wear? Can we not agree that from the time that these laws were made, (in 1893) fashion has evolved? Do we keep those standards of male and female clothing, and therefore charge every woman seen wearing jeans? The law also serves as a staunch reminder that Guyana fails to recognize the legitimacy of the Trans identity. It empowers discrimination against the LGBTQ community, and places the power in the hands of the police to decide who should be charged, and who is “improper”.

It is with this background that the case proceeded to the Caribbean Court of Justice early this month, with a few key points being made. Some of those being that (1) that the offence is so vague it does not qualify as a law at all, since every law must be certain enough for the ordinary person to know in advance what is prohibited and what is allowed, and (2) that the offence violates the separation of powers doctrine because it is so vague that it as one court explained, it “impermissibly delegates basic policy matters to policemen, … for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Whilst the ruling will not be made for quite some time, we can hope that this vague and flawed law will see its end soon. On 27 June 2018, the Caribbean Court of Justice found Barbados’ mandatory death penalty unconstitutional, thus overruling their constitution’s savings clause. If the cross-dressing law can be proved unconstitutional then, there is a chance that it too may be overturned.

In closing, Guyana may be independent; but we are haunted still by the laws of our colonial past. We should all listen closely to the ruling that will be made by the CCJ, and continue to examine all aspects of our society, whether it be our law or our culture that have been passed down from Colonial leaders and continue to oppress us.