Did the Constitutional Court get it wrong?

Uganda Law Society (ULS), to which I am a proud member since 2008, and 12 other professional bodies, some established by statute, in 2020 all filed a joint constitutional petition seeking inter alia to declare unconstitutional Section 2 (h) of the Stamp Duty (Amendment) Act, 2020. 

Fortunately, if not for a short-lived victory in case of an appeal, the petition prevailed all but for the wrong reasons and by a 5-0 unanimous decision, the justices agreed with the petitioners in resoundingly invalidating Section 2 (h) of the statute as being discriminatory against professionals in private practice despite there being no historical disadvantage or past wrongs perpetuated against professional practitioners that the constitutional framers could have intended to remedy and or correct. 

Based on my professional experience, the court’s determination of the statute’s constitutionality relied on the petitioners’ assumed social standing or status, which varies among members of the affected class.

By conflating the law’s discriminatory effect, or disparate impact, with disparate treatment, which involves intentional discrimination, the court arrived at a wrong conclusion.

Fist the basics, anti-discrimination laws historically (unlike of course in Uganda) draw their origin to the civil rights era with the intention of remedying unequal treatment of people on the basis of race or colour and in the years that followed, birthed the American Civil Rights Act, 1964.

To better appreciate how anti-discrimination laws came into being, one may have to go as far as 1868 with the ratification by all the 50 states in America of the 14th Amendment’s Equal Protection Clause.

There, laws established classifications of protected membership to aid courts in determining whether governmental conduct violates the Equal Protection Clause due to discrimination.

This includes applying different standards of review such as strict scrutiny, intermediate scrutiny, or rational basis review, depending on whether a suspect class, quasi-suspect class, or neither is involved, as demonstrated in the ULS et al v. Att-Gen case.

For instance, where you have the constitutionality of a facially neutral law of general applicability, as with the impugned provision of the Stamp Duty (Amendment) Act challenged on grounds of discrimination because of the law’s disproportionate impact or its disparate effect on members of a protected class, to prevail, there must be convincing evidence of a discriminatory intent or disparate treatment on the part of the state. In case you are asking why the enormous burden on the law challengers, the answer lies in the presumption of validity or constitutionality and deference courts owe to Parliament where there’s no separation of powers question involved in a dispute.

Therefore, it is one thing that in its enforcement, the annulled provision of the statute created a disparate impact by disproportionately affecting individuals engaged in professional private practice than other similarly situated individuals employed in public service or non-private practice, but quite another thing altogether to pass constitutional muster, absent evidence of discriminatory intent. 

Moreover, where the government can show that it has a rational basis under a rational basis review which is the least of the three standards, for enforcing the statute, i.e., to increase the tax base or to enforce tax compliance by professionals in private practice, the constitutionality of the statute ordinarily would be upheld (as it should have been).

In a dissenting US Supreme Court opinion by a 7:2 split decision, Morrison v. Olson, 487 US 654 (1988), Justice Antonin Scalia said: “...We owe great deference to Congress’ view that what it has done is constitutional (cases omitted), and that we will decline to apply the statute only if the presumption of constitutionality can be overcome”. 

As one can tell, my interest is to advance a sound interpretation of the law and not to wage a battle with the rest of my professional colleagues and friends upon taking a victory lap from the outcome of their constitutional challenge.  

Mr James Tamale, Esq is a counsellor and Attorney-at-Law