Ray Funk and Andrew Martin
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Warning of pitfalls in Section 34 repeal: Law must not target any individual
I share the grave concerns of others over the limited proclamation of Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011. I have even greater concerns as to how successful the reported attempt at repeal is likely to be. To be effective, the repealing legislation and the debate to bring it into being must accomplish two things, both of which will involve walking a very delicate line. Not only must the repealing legislation have retrospective effect; equally and more important even, that repealing legislation must avoid being struck down as offending the ad-hominem doctrine.
Much has already been said on the need for the repealing legislation to be expressly retrospective in effect. I will not repeat those arguments; I agree. My greater concern is whether, given the clamour for the repeal to be passed urgently, that the repeal legislation will be sufficiently and wisely drafted and argued for by those who promote it as it comes to Parliament, so as to ensure that it survives into the future. The danger exists that the repealing legislation may be tailored too specifically to undo what is perceived to be an immediate consequence of the application of Section 34 (3), and to nip in the bud what is reported to be the inevitable consequence of certain litigation which that section has spawned.
The ad-hominem doctrine means, simply, that there exists an inviolable line in the separation of powers between the legitimate work, on the one hand, of legislators and on the other hand, of the judiciary. As such, in passing legislation, Parliament must be scrupulous to ensure that the repealing legislation is not framed in terms or substance to direct any court as to the outcome of any case which is pending before that court, that is to say, it must not be so framed as to amount to a direction to the judicial branch which can be said to interfere with the court’s independent adjudication in a pending case, or directs the exercise of judicial discretion in determining the case.
If the repeal exercise does not scrupulously avoid this pitfall, then inevitably, those who stand to benefit from the effect of Section 34 will undoubtedly challenge the repealing legislation in a new constitutional motion. The argument then will be simple: It will refer to the constitutional guarantees of due process, the protection of the law, and to equality before the law; it will say to the court that Section 34 gave me certain rights; I brought court proceedings to have those rights declared in accordance with law (S.34); now Parliament has passed a law repealing Section 34, which denies my accrued rights under that section and therefore, has unconstitutionally targeted me, ad hominem; that that repealing legislation amounts to an unlawful interference with the independent adjudication by the court of those declarations which I sought (to benefit from Section 34) and is in breach of my constitutional rights.
Ergo, the repealing legislation must be declared unconstitutional! So, to be effective, the repeal must neither be framed nor argued for, expressly or by implication, so as to appear to target any individual or class of individuals, or to purport to give any form of direction to the judicial branch in relation to any pending cases which have been brought under Section 34.
This is an enormous challenge for the Government’s legal draftsmen and women, and for the legislators who assemble to debate and pass this repealing legislation. And whether that horse has already bolted the stable will only be determined in the years to come, when the Privy Council will once more be called on to pronounce on how we should behave—since it is inevitable that the repealing legislation will be challenged as ad-hominem legislation.
It would appear that the stage has been set for another round of constitutional motions, and undoubtedly another stay of proceedings of current preliminary inquiries before the courts. When this occurs and our judges are once more called on to do their job, and they acquit themselves in construing and applying the law which Parliament has passed, we must not pillory the judges.
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