Legal/Fictional Interpretations - Spouse/Police

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Rawlston Pompey

Monday, 14 May 2012 02:30

By Rawlston Pompey

When references were recently made in an Enactment in expanding the definition of “…SPOUSE,” as relationships and cohabitation of “…Same Sex Persons,” its connotation had risen more than the citizen’s eyebrows.

Many citizens squirmed, frowned and rebuffed the interpretation. Though it had brought some degree of awareness, it had also provoked cynicism and skepticism and stimulated intense discussions. The Encarta Dictionary defines Spouse as “…Somebody’s husband (male) or wife (female),” irrefutably distinguished by their respective “…reproductive organs” as a peacock is different from a peahen.

LEGAL FICTIONS
Until recently, reference to the concept “…SPOUSE,” concealed under the term “…LEGAL FICTION,” outside the legal fraternity, the term was little known to most citizens. Citizens, obviously unaware of the “…Legal Concept” and/or its meaning, appeared sensitively and embarrassingly offended. Members of the House of Representatives on the other hand, seemingly enthused, became noticeably delirious went into uproar. It was not clear of the reactions to the “…Fictional Interpretation” of Traffic Wardens to be referred to as Police Officers..

HESITANT TO CHANGE
When, when SIR ROBERT PEEL, British Home Secretary modernized the new Police in 1829, the personnel had become “…An organized group of people whose job was to maintain order;” …ensuring that regulations are obeyed and …Preventing and Detecting Crime” [Encarta]. The Online Britannica Encyclopedia defines “…LEGAL FICTION” as“…A rule assuming as TRUE something that is clearly FALSE.” It further states that “…A fiction is often used to get around the provisions of Constitutions and Legal Codes that Legislators are HESITANT TO CHANGE or to encumber with specific limitations.”

SPOUSAL INTERPRETATION
While the “…SPOUSAL INTERPRETATION” may have incensed many, it was also evident that for the purposes intended, it may have been taken out of context. Even after the “…morally offensive Interpretation” had been wittingly removed, an unrelenting, unforgiving and unforgettable citizen, GEORGE MARAJAH appeared not to have been amused by the provocatively new “…Fictional Legal” meaning of “…SPOUSE.” Thus, when the term was referenced by Attorney General JUSTIN SIMON during a debate in the House of Representatives, it had sent imagination running wild with excitement; provoked debates among the citizenry and sparked widespread controversy and condemnation over the interpretation.

OUT OF CONTEXT
Suffice it to say that this had occurred during the introduction of a Bill to the House of Representatives, intended for the purposes of ensuring that property which may have been derived from the proceeds of crime, may not have been easily concealed, disposed or transferred to known or fictitious third parties. The spousal interpretation appeared to have attracted widespread public attention when the Honourable Attorney General sought to provide “Legal interpretation” and enlightenment of Members of the august body. Knowing that he was, and still is a “…SPOUSE” to a member of the “…opposite sex,” a clearly flabbergasted Prime Minister Honourable DR. BALDWIN SPENCER jestfully asked “…Who slipped this in here? Such question may have been prudently prompted out of an abundance of caution, that it may not have been misinterpreted or misunderstood by other members and the citizenry as a whole.

CONCUBINAGE AND PROGRESSIVE
From a legal perspective, the Honourable Attorney General JUSTIN SIMON QC sought in earnest to offer explanations, elucidating that “…It (SPOUSE) covers everybody.” Supportive Members of the “…Bill” sought to trivialize the interpretation with offending humor. Several Members spontaneously made interjections with descriptions of “…CONCUBINAGE in all shape or form" and legislatively “…PROGRESSIVE.” Little did they know that the interpretation may have been taken out of legislative context, and had distorted the mischief aimed by Parliament. 
       
RELIGIOUS PERFIDY
From biblical teachings and moral standpoint, and as “…progressive” as it may have been perceived, George Marajah was adamant that “…SPOUSE” was to be associated with “…male/female relationships.”  He had sought responses with futility in engaging the various denominational leaders within the nation’s religious community. Most of the religious leaders, though they had engaged and performed “…Holy Matrimony” between members of the “…opposite sex,” yet most appeared to have lacked either the moral courage or the religious or testicular fortitude in obliging religious-based explanations. MARAJAH not only saw the legislative initiative as “…heresy and hypocrisy,” but also “…RELIGIOUS PERFIDY.”



POSITION OF DEPRAVITY
Except Bishop CHARLESWORTH BROWNE, who had publicly expressed “…denominational abhorrence” and objections over the vexatious interpretation, other religious leaders appeared unwilling to risk the ire and wrath of the Legislators and the morally upright citizens. They had feared getting into public discourse or   squabble over the sensitive and contentious issue. However, the same may not be said of a Roman Catholic Priest who had advocated “…decriminalization of the BUGGERY LAW.” Like Members of the House of Representatives, the Priest may take comfort from United States President BARAK OBAMA, who pundits say may ultimately “…pay a heavy political price” for the apparent vexatious posture. Notwithstanding the President’s fulfillment of what moralists and religious leaders saw as “…evil campaign promises,” his expressed “…POSITION OF DEPRAVITY,” was not law.

INTERPRETATIVE MADNESS
Though the President’s posture was seemingly considered for reasons of “…political expediency,” some may have been seeing just what the Priest appeared to have seen and advocated. Although Attorney General JUSTIN SIMON QC had “…ONLY” offered explanations on “…LEGAL FICTION,” regular radio Talk Show contributor, GEORGE MARAJAH, moralists; …members of the Christian community and civil society, the interpretation of “… Traffic Wardens to be “…referred to as Police, like “…SPOUSE,” appeared to have been the result of “…INTERPRETATIVE MADNESS.”

FICTIONAL INTERPRETATIONS
In the context in which the concept “…SPOUSE” was to be interpreted, indeed, it was a “…LEGAL FICTION.” The point to be made as it relates to the provisions under the Transport Board Act, a similar “…Fictional Interpretation” was to be accorded to “…TRAFFIC WARDENS.” For the purposes of enforcing the Traffic Laws, the Act stipulates that they were to be referred to as “…POLICE OFFICERS.” These appointees appeared precariously positioned. Hence, there may be fundamental legal, administrative and operational problems, not only with the “… FICTIONAL INTERPRETATION,” but in discharging Law enforcement duties as “…Untrained non-members” of the Royal Police Force of Antigua and Barbuda.

ANOMALOUS ODITY
With such “…ANOMALOUS ODDITY,” it was clear that there may be a “…Conflict of Law.” The professionally trained Law enforcement personnel fall under the responsibility of National Security Minister, Honourable Senator DR. ERROL CORT, while “…Traffic Wardens,” employees of a Statutory Corporation, fall under the responsibility of Public Works Minister Honourable TREVOR WALKER. Legal luminaries, Law enforcement personnel and members of the Board have argued that such an anomaly ought to have been obvious to the Nation’s chief Legal Advisor and Attorney General. They have    also suggested that it may have been legislatively prudent in addressing the anomaly for agency consistency, harmonization and functional effectiveness.

CONFLICT OF LAW
Such constituted the essence of an apparent “…ANOMALY” brought about by a provision under the Transport Board Act as amended [No. 22 of 1998]. The law as provided in the Vehicles and Road Traffic Act, Chapter 460 appeared very clear on “…CONFLICT OF LAW.” Section 93 emphatically states “…Whenever the provisions of this Act or of any regulations made thereunder are in conflict with the provisions of any other Act relating to the ‘control of vehicles and road traffic,’ the provisions of ‘THIS ACT’ and the regulations made thereunder ‘SHALL PREVAIL.” This appeared not to have needed renowned German theoretical physicist ALBERT EINSTINE in interpreting this particular Section or even for lay persons in comprehending what Parliament intended. Just as it is expected that “…Good “     shall prevail over “…Evil,” so it is, the provisions of Chapter 460 shall prevail over any other law.

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BONA FIDE FORCE MEMBERS
Bona fide members of the Police Service are those conferred with status under Section 18 of the Police Act, Chapter 330. They, at all material times are the legitimate members of the”…National Law Enforcement agency.” The Section reads “…Every person for the time being SERVING IN THE FORCE shall be deemed a member of the Force, and shall enjoy all such rights, powers, authorities, privileges, and IMMUNITIES conferred on a member of the Force by any law which is now in force or may hereafter be passed.” The Interpretation Act Chapter 224 interprets a “…Police Officer” as meaning a member of the Police Force;  “…Constable” as meaning a Police officer below the rank of Subordinate Police officer of the Force.”

THE CONSTITUTION
The Constitution Order 1981 interprets a Public Officer as “…meaning a person holding or acting in any public office and include an officer or member of the Police Force.” Speaking to Public Office, it also interprets such as “…means any office of emolument in the Public Service and includes an office of emolument in the Police Force.” The Vehicles and Road Traffic Act, Chapter 460, refers only to “…Police Officer and …Traffic Commissioner,” These are irrefutable and unchallengeable interpretations. Hence, the Honourable Attorney General JUSTIN SIMON may wish to direct himself to re-visitations to this legislative and remedially possible “…ANOMALOUS” situation in bringing early resolution to the same that Traffic Wardens may be accorded the requisite status, and attendant powers and authority and placed under the appropriate enforcement agency.

TRAFFIC WARDENS FIASCO
When several men and women appeared on the streets of St. John’s to perform traffic duties alongside professionally trained Law enforcement officers, not only was their “…green and white uniform” drew public attention, but seemingly provoked rejection in some quarters, including the motoring public. This may have been the result of suggestions that the “…lack of public awareness of, and/or sensitization on the appointment of the personnel identified as “…Traffic Wardens, the purpose, role and functions seemed to conflict with those of the members of the nation’s sole Police Service. Such service was to be discharged by “…recruited; …enlisted members; …subscribing to the Oath of office and …professionally trained in Law enforcement. These members irrefutably fell under the command and control of the Commissioner of Police, with responsibility for the superintendence of the Force as stipulated under Section 6 of the Police Act, Chapter 330. Police personnel are allotted designated ranks of “…Constable; …Subordinate Police Officer; …Inspector and Gazetted Officers” as are stipulated in the Act.

CIVILIAN EMPLOYEES
Thus, the concerns raised over the Traffic Wardens may have been due to the lack of public education. Hence, such lack of awareness that may have provoked consternation among road users over their presence. They were widely seen as - “…CIVILIAN EMPLOYEES” of a State Corporation and indeed, that was factually their status. Equally as much as road users had shown contempt, it was also public knowledge that there had been certain amount of antagonism and animosity between the “…PROFESSIONALLY TRAINED” Law enforcement personnel and themselves. Notwithstanding, they were deployed on the streets of St. John’s for a specific purpose- “…Enforcement of the Vehicles and Road Traffic Act.” They had been awkwardly and disadvantageously placed in an unfamiliar role of “…ENFORCING TRAFFIC LAWS,” of which they were neither trained, qualified,  knowledgeable, nor equipped with the requisite professional competencies in enforcing.

POLICE POWERS
Unfortunately, Traffic Wardens appointed by the Transport Board, hold no membership under Section 18 of the Police Act. Thus, they may claim no legitimacy to “…IMMUNITY,” whether from prosecution or litigation. Though the Act provides only for “…SERVING MEMBERS,” this also appeared fictional, since everyone, irrespective of position or status has allegiance to the law. While the appointment of Traffic Warden resulted from provisions governing a Statutory Corporation, the law provides that such appointees may be employed to exercise “…Police Powers.”

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PECULIAR INSERTIONS
Instructively, the amendments to the Transport Board ACT saw the “…PECULIAR INSERTIONS” of Section 7A (1) that states “…The Board shall have the power to appoint persons to be known as Traffic Wardens in policing Ground Transportation.” Seemingly, following a sojourn from the distinguished Chamber, sitting around a table laden with that which Proverbs 20:1: declares as “…causing mockery and making people noisy and unwise,” Legislators appeared to have slipped in the proviso- Section 7A (2) that states “…For the purposes of the discharge by Traffic Wardens of the functions stated in subsection (3), references to a Police Officer, shall include references to a Traffic Warden.” For clarity the Section states “…Traffic Wardens MAY be employed to enforce the law with respect to an offence committed in respect of ‘FIXED PENALTY OFFENCES’ under the Vehicles and Road Traffic (Enforcement and   Administration) Act Chapter 461 and its regulations.” It also provides for enforcement under the main ACT, Chapter 460 and its regulations.

THE IRONY
Ironically, Traffic Wardens may be required to exercise powers and perform duties of which they may have lacked formal Law enforcement training. These include- providing “…DIRECTIONAL SIGNALS to motorists; … Investigating Traffic Accidents;” …Procedural policies; …Mode of Arrest and Detention; …Constitutional provisions; …Application of Caution; …Knowledge and application of the Judges Rules; …Prosecution; …Rules and Procedures of the Courts; …Laws of Evidence; and …familiarization with Force Policies; …Station Standing and Operational Orders.”

IDENTIFYING DIFFICULTIES
Identifying, acknowledging and appreciating the attendant difficulties, including a significant financial cost, it may not be mischievously said that it was for want of “…official recommendations and/or the repetitious prompting” by General Manager HARRY JOSIAH of the Antigua and Barbuda Transport Board (ABTB), in seeking to have the anomaly rectified. The General Manager was cognizant of, among the Statutory Corporation’s aims and objectives “…Revenue generation and profit making.”The provisions under which Traffic Wardens were required to discharge their duties under the “…Vehicles and Road Traffic (Enforcement and Administration) Act, Chapter 461” and the procedures for the payment and collection of “…PENALTIES and FINES,” militated against any of it reaching the Corporation’s financial account. He had reportedly apprised those concerned of the command, administrative, operational and more importantly, the financial challenges posed to the Corporation. Such efforts appeared to have been met with futility.

FINES AND PENALTIES
It was well known that “…FINES/PENALTIES” reflect “…PUNISHMENT.” These are imposable upon offenders, whether for motoring offences or other criminal acts. These are collected by the Courts and paid into the Government’s Treasury. Heads of Departments of both the Law enforcement Agency and the “…Statutory corporation” were aware that payment of “…Fixed Penalties (voluntary) and/or FINES (trial/conviction) shall be paid into the “…Consolidated Fund.” This was never the function of Statutory Corporations,” equally as much as it was not their role in enforcing “…CRIMINAL LAW.” They are not Law enforcement agencies. Such has always been the function of Law enforcement. Thus, it might have been reasons of expediency that the provision for appointment may have been included in the Transport Board Act. Such appeared to have been void of meaningful conceptualized plans that sources close to the Transport Board saw as being more of a “…Financial Liability,” than the services of the appointees were to the financial viability, success, sustainability and prosperity of the Corporation.

CORPORATE FUNCTIONS
Like APUA’S Board Chairman CLARVIS JOSEPH, the Corporation had to be operated as a business enterprise in accordance with its governing regulations, “…administrative powers” and in an environment that was conducive to its financial success, viability and sustainability. Such clearly may have also been the vision of General Manager of the Transport Board HARRY JOSIAH. He was aware of the Corporation’s unique position to “…Function through policies of a Board; …having responsibility for its own Financial provisions; …Vested with Borrowing Powers; …may engage in Investments and the …acquisition of land. Section 7 of the Transport Board Act clearly states “…The Board shall manage and administer efficiently and in a BUSINESS-LIKE manner Ground Transportation of persons and goods in Antigua and Barbuda.”  Without a shadow of doubt, it appeared to have been so efficiently operated. There had been no provisions for the Board to enforce Police Law or perform Law enforcement duties.

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INADVERTENCY
Thus, it may have been inadvertency on the part of the nation’s Legislators not to have directed and govern themselves accordingly. For unlike the “…Medical Benefits Scheme (MBS); …Board of Education (BOE); …Antigua and Barbuda Social Security Scheme (ABSS); …State Insurance Corporation (SIC); …Antigua Public Utilities Authority (APUA), the Transport Board was the only Corporation empowered to appoint Traffic Wardens with the only governing Act that provides for these employees to enforce “…POLICE POWERS.” This, however, was specific and limited to the Vehicles and Road Traffic Act Chapter 460 and the Vehicles and Road Traffic (Enforcement and Administration) Act, Chapter 461 of the Laws of Antigua and Barbuda.

CONCLUSION
In effect, the status of persons appointed by the Transport Board a Statutory Business Corporation, was that of “…CIVILIAN EMPLOYEES.” Thus, such persons may claim no “…LEGAL STATUS” or membership under any other Act other than Chapter 330. The simple reasons are; …they were not duly enlisted and subscribed to the Oath of office as required by Section 17; …they underwent no formal Law enforcement training; …they fell not under the command and control of the Commissioner of Police; …they are subjected not to the Disciplinary Code for professional breaches; they are not paid under emolument of the Police Department; …their services cannot be terminated by the PSC. Hence, they may neither appear before a “…Trial Officer, nor at a Tribunal before the “…Police Service Commission (PSC)” that has Constitutional responsibility for “…Discipline Control; …Appointment/Promotion and …Transfer” of personnel currently serving in the Police Service.

Therefore, since such status appeared to have been expeditiously “…FICTIONALIZED” and “…LEGALIZED” under the Transport Board Act, then it may be said without contradiction that there may have been some degree of “…LEGISLATIVE THOUGHTLESSNESS.”

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