Transitions in Caribbean Law: An Introduction
| Author | David S. Berry and Tracy Robinson |
| Pages | 7-27 |
Transitions in Caribbean Law:
An Introduction
David S. Berry and Tracy Robinson
This book explores both concrete and conceptual developments in the
legal systems of the Commonwealth Caribbean.1
glance the individual chapters may appear unrelated, a closer look
reveals that they explore and offer insights into a number of cross-
cutting themes that are at the front of Caribbean regional jurisprudence
– from the challenges involved in applying abstract (sometimes regional,
often extra-regional) rules to concrete and differing societies, to those
Caribbean law, to the institutional challenges involved in making and
interpreting the law. Several of these themes need to be unpacked, as
well as others tentatively explored, in order for the contribution of the
pieces in this book to be appreciated. What, for example, can we learn
about a ‘Caribbean jurisprudence’? Is there such a thing? Is there a kind
international law2 – and what is its effect on the legal institutions of the
region? How do small jurisdictions make law – or is law made for them –
in a global economy? Is there a trend towards ‘transjudicialism’ and how
(CCJ)?
the context of contemporary developments in Caribbean law and legal
systems and particularly the establishment and early jurisprudence of
the CCJ. The only posthumous publication to date by the late Professor
Margaret Demerieux, who died in November 2005, sets the stage
by evaluating the early legacy of the Judicial Committee of the Privy
Council in constitutional human rights cases from the Caribbean.3
1.
Law ‘Faculty Workshop Series.’ Some of them were part of a special tribute to Public Law Professor
Emeritus Albert Fiadjoe on the eve of his retirement.
2. AG v Joseph [2006] CCJ 3 (AJ), (2006) 69 WIR 104 (Bdos) 151 [106] (de la Bastide P and Saunders J).
3. See Demerieux, Chapter 8. Professor Demerieux’s article is published with the permission of her
executor and estate.
viii
Transitions in Caribbean Law
notably Chief Justice Wooding and Justice Telford Georges.4 From the
perspective of international law (Berry), administrative law (Ventose)
and constitutional law (Robinson), three chapters closely look at the
2006, a year and half after the inauguration of the Court in April 2005,
AG v Joseph.5
This case epitomizes the transitions in law in the Caribbean over the
last decade. The litigants, Lennox Boyce and Jeffrey Joseph, are well
known to Caribbean public law. Their appeal was one of the last major
decisions heard by the Privy Council from Barbados, which became one
CCJ. They had lost their appeal before the Privy Council in 2004 in the
legendary case, Boyce v R,6 by a slim 5: 4 majority on the interpretation of
the general savings law clause and its protection of the mandatory death
penalty.7 Two years later, the same litigants succeeded before the CCJ
on different grounds, which carefully reviewed a series of earlier Privy
Council decisions. The CCJ focused on the men’s legitimate expectation
that they would have access to international human rights tribunals
before the death penalty was carried out and their right to procedural
fairness before the local body considered the exercise of the prerogative
of mercy. To come full circle – an illustration of the force of international
legal commitments – a year after the CCJ decision, in November 2007,
the Inter-American Court of Human Rights held Barbados responsible
for violations committed against these men by, among other things, the
mandatory nature of the death penalty in Barbados.8 Barbados agreed
to repeal the mandatory death penalty and to constitutional reform to
remove the infamous protection of existing laws secured by the general
savings law clause in the Barbados Constitution.9
The chapters in this book contend with the themes directly addressed
in this early decision of the CCJ and others that circle the establishment
of this transnational court.
4. See Jackson, Chapter 1.
5. See (n 2).
7. Barbados Constitution 1966 s 26.
8. Boyce v Barbados (Preliminary Objections, Merits, Reparations and Costs), Inter-American Court
of Human Rights, Judgment of 20 Nov 2007, Series C, No 169 accessed 19 Apr 2011, 103–4.
cfm> accessed 19 April 2011.
9. For example, Death Penalty Project, ‘News Release, May 2009 – Barbados’ Compliance with Inter-
American Court Ruling’ accessed 19 Apr
2011, Case of DaCosta Cadogan v Barbados (Preliminary Objections, Merits, Reparations and
Costs), Inter-American Court of Human Rights, Judgment of 24 September 2009, Series C, No 204
ix
Introduction
1. The Concept of a Caribbean Jurisprudence
There have been two central tenets – truisms perhaps – in the
development of Caribbean regional legal institutions and legal
common
that we need the development of something described as a ‘Caribbean
jurisprudence’ upon which to found more relevant and responsive
Caribbean lawmaking. In conferences held in England in the early 1960s
on ‘English Law in the West Indies,’ Sir Hugh Wooding, the former Chief
Justice of Trinidad and Tobago, who was both a pioneer of Caribbean
legal education and the region’s premier nationalist judge, described the
to the verities of our life, economy and customs as to need urgent revision
and thorough reform.’10 In a later speech on regional integration in
1967, Sir Hugh Wooding spoke of an urgency to ‘cultivate a Caribbean
legal philosophy’ that accorded with Caribbean legal realities, while
maintaining the ethos of the common law.11
This preoccupation of jurists in the 1960s, on the eve of the
establishment of regional legal education in 1970, with the need for a
century. Underlying the call are familiar nationalist and regionalist
consistent with its ‘identity’ and will lawmakers and the legal profession
accept the Caribbean on its own terms?12 While other aspects of Caribbean
life are said to represent idiosyncratic Caribbean culture, law is seen as
an anomaly that has not come ‘home.’13
These chapters engage with, and re-present, this problematic of a
Caribbean jurisprudence. They illustrate the durability of the concomitant
anxieties, hopes and feelings of community shared by lawyers in the
Caribbean that are embedded within it. In the same breath, by pointing
to legal interchange across and beyond the region, and the diversity
amongst small Caribbean states in their history, political and business
10. H. Wooding, ‘Foreword’ in K. Patchett (ed), The Law in the West Indies: Some Recent Trends
(Commonwealth Series No 6, British Institute of International and Comparative Law, London
1966) vii.
11. H. Wooding, ‘Address at the Institute of International Relations, UWI, St Augustine Trinidad, 28th
June 1967: Legal Problems of Political Integration’ in H. Fraser (ed), A Collection of Addresses by
the Rt Hon Sir Hugh Wooding
122 (emphasis added).
12. See R-M Antoine, Chapter 3.
13. B. Chevannes, ‘If the Shoe Doesn’t Fit: Law and the African-Caribbean Family’ (2002) 27(2) J of
Eastern Carib Studies 80, 94, L. Jackson, Chapter 1.
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Transitions in Caribbean Law
culture, and social and economic development, the contributions to this
book also unmoor ‘a Caribbean jurisprudence’ as the foundational issue
for Caribbean legal thinkers. By asking what the sources of law in the
Caribbean are, how law is made and what law means in a transnational
Caribbean, they point us towards a concrete examination of law in the
Caribbean that does not over-privilege an autonomous, sovereign and
homogeneous Caribbean arena in which we can readily discern ‘the
emotion[s] of the people.’14
In his contribution to this book, Leighton Jackson suggests that law in
the Caribbean be ‘creolised,’ thus making a positive association between
creolization and creativity and resilience.’15 Though the term is not
arguably, is that of a framework for the ‘development of new traditions,
aesthetics, and group identities out of combinations of formerly separate
peoples and cultures,’ a creative interplay that generates something new
and worthwhile out of the loss wrought by colonialism.16 By choosing this
Jackson also posits the idea of an indigenous Caribbean legal tradition.
But perhaps Jackson’s creole jurisprudence may be more helpful as
cultural concept already at play in the making and understanding of
Caribbean law and the Caribbean than as a present goal of Caribbean
legal thought. Anthropologist Aisha Khan warns against ‘construing
recover some optimism from a typically bleak portrayal.’17 Crucially,
she observes that calls for creolization – and we would add calls for a
Caribbean or creole jurisprudence – tend to stay in the realm of the
theoretical or abstract.18 That abstract ‘Caribbean’ philosophy provides
little direction when faced with concrete problems – such as should
Caribbean lawmakers adopt the Business Judgment Rule that limits
director liability when a director reasonably believed her or his decision
was in the best interests of the company,19 or how should the doctrine
of , or utmost good faith, in insurance contracts be
applied in the Caribbean,20 or how should Caribbean public law respond
14. D. Simmons, ‘Judicial Legislation for the Commonwealth Caribbean: The Death Penalty, Delay and
the Judicial Committee of the Privy Council’ (1998) 3 Carib L B 1, 10.
15. L. Jackson, Chapter 1.
16. N.R. Spitzer, ‘Monde Créole: The Cultural World of French Louisiana Creoles and the Creolization
of World Cultures’ (2003) 116 Journal of American Folklore, 58–59.
17. A. Khan, ‘Journey to the Center of the Earth: The Caribbean as Master Symbol’ (2001) 16 Cultural
Anthropology 271, 282.
18. Ibid.
19. S. Goldson, Chapter 2.
20. L. Walcott, Chapter 4.
xi
Introduction
to ‘new blends of public and private power,’21 or when can a legitimate
expectation arise in relation to an unincorporated treaty,22 or what are
the proper limits of implied constitutional norms.23
Moreover, if we regard a creole jurisprudence critically, then we
will recognize that it is not ‘neutral’ and that ‘certain elements of
representation…are always chosen, [and] certain others get left out’
of what is deemed Caribbean.24 Creolization invokes an essentialized
25
Caribbean – like children born out of wedlock and common law marriage
in working-class black families. This concept can conceal the extent to
which the Caribbean is imagined, including through the law, to be a
space to which some belong and not others, distinctions and hierarchies
which may be determined by race, gender, sexuality, class and origin.26
For example, only towards the end of the twentieth century do we see
what Godfrey Smith describes as a ‘constitutional space’ starting to
emerge for indigenous people in the Caribbean.27 Indigenous people have
been, until recently, largely invisible as citizens of the Caribbean.
masked and disempowerment entrenched.28 Sir Hugh Wooding, for
marriage but in ‘the true spirit of a husband-and-wife relationship.’29 A
Caribbean legal philosophy would insist, he said, that the common law
husband be treated like a de jure husband, entitled to some exculpation if
provocation at common law.30 But the call for a Caribbean jurisprudence
here, Tracy Robinson argues, merely obscures the gendered assumptions
that underlie the common law rule of provocation – that men have
proprietary rights in women’s bodies and sexuality – and it betrays the
way in which privilege, in the name of the developing Caribbean nation,
is appropriated for certain subjects and not others.31
21. A. Aman, ‘Globalizations, Democracy, and the Need for a New Administrative Law’ (2003) 10
Indiana J Glob Legal Studies 125, 129. See Antoine, Chapter 3.
22. D. Berry, Chapter 5, E. Ventose, Chapter 6.
23. T. Robinson, Chapter 11.
24. Khan (n 17) 292.
25. T. Robinson, ‘A Caribbean Common Law’ (2007) 49 Race and Class 118, 123.
26. Ibid 121.
27. G. Smith, Chapter 10.
28. E. Mertz, The Language of Law School: Learning to ‘Think Like a Lawyer’ (OUP, Oxford 2007) 213.
29. H. Wooding (n 11).
30. Ibid.
31. Robinson (n 25).
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Transitions in Caribbean Law
a Caribbean
jurisprudence, as a search for an emancipatory truth and a distinct
and separate way of seeing the world, may not be as worthwhile an
undertaking as has been assumed for decades. Still, we should not
abandon it entirely, but instead view it as a form of cultural discourse
or legal consciousness. When structured distinctions and hierarchies are
taken into account, law in the Caribbean emerges as having different
meanings for different people, not only in the past, but as a feature of
the present.32 Jackson’s interest in a legal realist analysis of Caribbean
law is helpful here, and even more so what Sally Merry terms a ‘new
legal realism.’33 The latter continues the focus on the operation of law
ideas, laws, and institutions across national boundaries,’ recognising the
importance of ‘local cultural understandings of law’ and foregrounding
34
public/private divide in employment, and how they should do so is very
much in this vein. Courts and lawmakers today have to contend with
institutional arrangements designed for very different political, social
and economic times. Caribbean constitutions set up mechanisms for
tempering the plenitude of governmental power, including an elaborate
scheme, through service commissions, for regulating the government’s
status as the single most important and the most powerful employer. But
there now is a global trend towards reducing the size of government by
privatizing some of the functions carried out by the state. Public sector
to privatization in the Caribbean. Many of the privatization initiatives
do not transfer resources and responsibilities entirely to the private
domain, but preserve an important role for the state, creating what
some now call the ‘third sector.’35 This is characterized by centralization
of policymaking and strategy and a decentralization of operational
management,36 or a hybrid of ‘public direction and private enterprise.’37
Antoine points out a challenge faced by Caribbean courts in balancing
public and private in this new terrain, namely, whether to extend public
32. R. Cotterrell, ‘Transnational Communities and the Concept of Law’ (2008) 21 Ratio Juris 1, 5.
33. S. Merry, ‘New Legal Realism: New Legal Realism and the Ethnography of Transnational Law’
34. Ibid 976, 978.
35. P. Vincent-Jones, ‘The New Public Contracting: Public Versus Private Ordering?’ (2007) Indiana
Journal of Global Legal Studies 259, 259–60.
36. N. Deakin and K. Walsh, ‘The Enabling State: The Role of Markets and Contracts’ [1996] Public
Administration 33, 36–37.
37. Vincent-Jones (n 35) 275.
xiii
Introduction
law protection and judicial review to contracts of employment or instead
to focus on private law remedies. She prefers interventionist approaches
by Caribbean courts to protect persons who are in effect employees of the
state and vulnerable to the exercise of the tremendous state power.
2. Making Law in Small Jurisdictions:
Legal Transplantation and the Problem of ‘Fit’
Legal change and reform are important tools of development in the
the blind transplantation of foreign statues in the region and the heavy
reliance on foreign, particularly English, precedents in the Caribbean.
and legal rules developed elsewhere and the need for more autochthonous
legal solutions.
Many chapters in this book indicate how extensively the courts of
the Commonwealth Caribbean rely upon the decisions of the House of
Lords and English Court of Appeal for the development of the common
law.38 Lesley Walcott, for example, offers an overview of the issues facing
contemporary Caribbean insurance law, particularly focusing on the
doctrine of
about the impact of English law. She notes the heavy reliance upon English
cases like the House of Lords’ decision in Pan Atlantic Insurance,39 and
argues that the Commonwealth Caribbean jurisprudence itself has yet to
provide clear answers to the nature and scope of . Jackson,
English statutes and precedents. He concedes that the transplanted laws
meant for other societies become ‘West Indian,’ but argues that they rest
40
Caribbean corporate governance regimes. These have been transplanted
from developed countries to the Caribbean and she argues that they are
not well suited for the corporate culture of the region. The dilemma is
amendment. Both judges and academics struggle with whether to have
regard to precedents from the donor jurisdiction when there are notable
differences that now exist between the donor and transplanted laws. For
38. See, e.g., L. Walcott, Chapter 4, L. Jackson, Chapter 1, E. Ventose, Chapter 6.
39. [1995] 1 AC 501 (HL).
40. L. Jackson, Chapter 1.
xiv
Transitions in Caribbean Law
example, many Caribbean countries have adopted versions of Canadian
company legislation. But recent amendments to the Canadian legislation
in 2004 have been interpreted as importing the American-styled ‘Business
Judgment Rule’ which creates a presumption that directors are not liable
for a breach of care, diligence and skill for a decision, if there was no
and reasonably believed the decision was appropriate at the time it was
made, and that the director had a rational belief that it was in the best
whether this Rule should also apply to Caribbean countries which have
enacted earlier versions of the Canadian law.
Using Jonathan Miller’s typology of legal transplants, the Canadian
company legislation might be described as a ‘legitimacy-generating
transplant’ that is adopted in part because of the prestige of the foreign
model.41 Miller explains that since the legitimacy here lies in the prestige
of the foreign model, local actors often cede future control over the
interpretation of their version.42 Future interpretations from the donor
country are adopted even though they rest on amendments or changes
in the donor statute.43 Furthermore, if the transplanted model loses
prestige in the donor country and is radically amended, this affects its
continued prestige and attractiveness in the transplanting country.44
Further, Kamille Adair’s analysis of the recent introduction of human
dangers of the ‘externally-dictated transplant.’45 She shows how those
statutes were adopted as a result of external pressures, primarily from
the United States, and without the necessary domestic needs assessment
or any critical evaluation of the existing domestic norms or international
norms which were ‘carbon copied’ into the legislation. Thus, the Caribbean
statutes fail to effectively differentiate between the recruitment and
labour or slavery-like practices that result, on the other. As such, the
for the offence of exploitation in and of itself, independently from the
chain process of recruitment, transportation and receipt. This provokes
Adair to argue for the incorporation of three different perspectives into
41. J. Miller, ‘A Typology of Legal Transplants: Using Sociology, Legal History and Argentine Examples
to Explain the Transplant Process’ (2003) 51 Am J Comp L 839, 854.
42. Ibid 859.
43. Ibid.
44. Ibid 869.
45. See K. Adair, Chapter 7, Miller (n 41) 847.
xv
Introduction
labour rights approaches. She argues that by focusing too intently on
can be. The corporate culture in the Caribbean is one of closely-held
companies with interlocking directorships.46 Corporate governance
regimes from developed countries would negatively impact these
interlocking directorships. Yet it is hardly an answer to say these corporate
governance rules are unsuitable because they would circumscribe an
entrenched aspect of Caribbean corporate culture. Disruption of these
interlocking directorships might be viewed as a worthwhile undertaking.
does not take us far enough. The more pointed and useful interrogation
is what do reformers want to accomplish and how do they wish to balance
competing interests at stake in a changing global economy.
that legal transplants do not work and that the transfer of law from
the developed to developing world will not aid the latter’s development.47
They argue that transplanted law will not produce the same behaviour
non-legal factors’ will generate different responses.48 Kevin Davis’s point
for large and small jurisdictions, provides another way of thinking
about legal transplants in the Caribbean.49 He assumes that when
lawmakers assess whether to create indigenous laws or transplant
foreign ones, there is no a priori answer. Lawmakers must weigh a range
many reasons why Jamaica might not want to transplant foreign laws,
reasons very comparable to Ffolkes-Goldson’s. These include differences
in the Jamaica economy and that of developed countries and the absence
of specialized commercial courts that will determine complex cases.50 He
does not end there, and weighs this against the relative lack of experience
of local lawmakers in the area and the relatively low volume of economic
46. See H. Beckles, Corporate Power in Barbados, The Mutual Affair: Economic Injustice in a Political
Democracy (Lighthouse Communications, Bridgetown 1989).
47. A. Seidman and R. Seidman, State and Law in the Development Process: Problem-Solving and
Institutional Change in the Third World (MacMillan Press, Basingstoke 1994) 46.
48. Ibid 46.
49. K. Davis, ‘Law-Making in Small Jurisdictions’ (2006) 56 U Toronto L J 151.
50. Ibid 176.
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Transitions in Caribbean Law
communicating the indigenous rules in a small jurisdiction.51 Ironically,
he concludes that the best solution might be to adopt the pre-2005
Canadian legislation that contains a large number of broad standards,
and may generate legal uncertainty.’52 Even with these shortcomings,
he says this may be a better approach because ‘the costs of achieving a
of resolving legal uncertainty, are more likely to be prohibitive in small
jurisdictions than in large ones.’53 Davis presents no clear winner, but
indicates hard pragmatic assessments small jurisdictions must make in
the development of their law.
On this approach legal transplantation is not inherently good or bad.
Jackson is right to be suspicious of a formal mode of analysis that says
being successors to the ‘heritage of English law’54 is ‘reason enough’ to
adopt English law in the Caribbean without scrutinizing the substance of
the laws imported to determine their value.55 He is most concerned about
how the rigid rules of precedent inhibit Caribbean judges from following
a course of their own. At the same time we should see the transmigration
of legal concepts and institutions as a normal and essential element of
the development of law.56 Professor Esin Orucu notes that ‘innovation
in law is small and borrowing and imitation is of central importance in
understanding the course of legal change.’57 The small jurisdictions of
the Caribbean must now give closer attention to why, when, how, what
and from where we borrow laws, rather than an outright rejection, or
uncritical adoption, of transplantation.58 The starting point must be the
needs and context of the Caribbean and the costs of lawmaking. Models
from other jurisdictions, and these increasingly today include other
Caribbean countries, should be considered only if they are functional, can
of compatibility.59 The sobering reality is that the most satisfactory and
optimal outcomes are not likely to be perfect ones in small Caribbean
jurisdictions.
51. Ibid.
52. Ibid.
53. Ibid.
54. K. Patchett, ‘English Law in the West Indies: A Conference Report’ (1963) 12 ICLQ 922, 922.
55. See Sujit Choudhry’s analysis of the genealogical argument for comparative constitutional law
Interpretation’ (1999) 74(3) Ind LJ 819, 910.
56. E. Orucu, ‘Law as Transposition’ (2002) 51 ICLQ 205, 205.
57. Ibid 206.
58. Ibid.
59. Ibid 207–8.
xvii
Introduction
3. Law in the Caribbean: Transnational Dimensions
Another major theme in this book is the transnational nature of law
jurisdiction of the nation state and the politically organized national
society [are not] the terrain from which all legal phenomena can be
observed and evaluated’ is very apt for the Caribbean.60 One dimension of
this transnational law is regional, and it has distinctly imperial roots that
have received postcolonial succour. Saunders J of the Caribbean Court of
contributed to the identity of a transnational Caribbean law because ‘so
far as the judicial power is concerned, we have been practically united.’61
decision-making has been built.62 When the founders of Commonwealth
Caribbean legal education created a common law programme to serve
several Caribbean states that did more than elucidate ‘West Indian
law.’ It served as an interpretive community that made it more real.
Notwithstanding the obvious localized dimensions of law in the region
– each country had its own Parliament and courts – the Faculty of Law
asserted the existence of a common regional law and aimed at producing
lawyers who could practise anywhere. It is little wonder that Mindie
Lazarus-Black’s review of the early history of Caribbean legal education
concludes that the products of the Faculty of Law ‘were global before that
concept held currency.’63
Transnational here has a second meaning, describing what the CCJ
64 Forged
and the ‘proving ground’ for international capitalism,65 the Caribbean
would almost inevitably today have laws with strong transnational
dimensions, that is ‘a kind of hybrid between domestic and international
law that can be downloaded, uploaded, or transplanted from one national
system to another.’66 Modern constitutions, for the most part, were
shaped in the image of each other and Westminster. The justiciable
bills of rights introduced in the constitutions were modelled on African
60. R. Cotterrell, ‘Transnational Communities and the Concept of Law’ (2008) 21 Ratio Juris 1, 5.
61. A. Saunders, ‘The Caribbean Court of Justice and the Legal Profession: Promoting our
Caribbriprudence,’ address delivered to the OECS Bar Association, Grenada (21 September 2007) 2.
62. Ibid.
63. M. Lazarus-Black, ‘After Empire: Training Lawyers as a Postcolonial Enterprise’ (2008) 25 Small
Axe 38, 39.
64. AG v Joseph [2006] CCJ 3 (AJ), (2006) 69 WIR 104, 151 [106].
65. B. Maurer, ‘Book Review of Sheller, Consuming the Caribbean: From Arawaks to Zombies’ (2004)
78 New West Indian Guide/ Nieuwe West-Indische Gids 305, 305.
66. H. Koh, ‘Why Transnational Law Matters’ (2006) 24 Penn St Int’l L Rev 745, 753.
xviii
Transitions in Caribbean Law
predecessors’ which in turn used the European Convention on Human
Rights as a template.67 Recent legislative initiatives in the US against
then translated into US foreign policy directives and legislation in the
Caribbean and elsewhere.68
North have blown new corporate governance regimes southwards.69
While rule of law initiatives in transitional democracies and developing
countries have become a global phenomenon, in a parallel move, the CCJ
seems to be institutionalizing the rule of law as an implied constitutional
fundamental, not just at the level of national constitutions but in the
Caribbean Community.70
References to decisions of foreign Commonwealth or common law
courts and international human rights norms are now commonplace
in the interpretation of the bills of rights of Caribbean constitutions.71
Margaret Demerieux’s chapter on the Privy Council, which is published
posthumously, reveals that cosmopolitanism did not characterize the
early period of Privy Council adjudication in the Caribbean.
More recently, in a series of Privy Council decisions and the inaugural
CCJ decision of AG v Joseph discussed throughout this book, the
relationship between national and international law in the Caribbean
has been brought into sharp relief. These death penalty cases have
raised issues about whether domestic tribunals can refer to international
law, for what purpose, and whether international law – including the
practices of treaty bodies and tribunals – can have tangible effects in
national legal systems.
In exploring the complexities of these cases, David Berry, argues that
the common law rules regarding use of international law within the
domestic courts invoked before the Privy Council and CCJ are not vague
or contradictory. Rather, these rules are precise, comprehensive and
comprehensible. He argues that their application by the Privy Council
in death penalty cases has been problematic, especially in light of the
apparent incompatibility of the jurisprudence of the members the Privy
Council with their own reasoning while sitting as the House of Lords. He
observes that the Privy Council treats the Caribbean as more susceptible
to international law than the United Kingdom, without explaining why.
68. K. Adair, Chapter 7.
69. S. Goldson, Chapter 2.
70. See AG v Joseph [2006] CCJ 3 (AJ), (2006) 69 WIR 104 (Bdos), TCL v Caribbean Community [2009]
71. See C. McCrudden, ‘A Common Law of Human Rights? Transnational Judicial Conversations on
Constitutional Rights’ (2000) 20 OJLS 499.
xix
Introduction
For this reason, Berry is critical of Privy Council decisions like Thomas
v Baptiste, which in effect, allowed international legal processes to have
domestic effect without incorporation into the domestic law, and Reyes,
in which the Privy Council treated the ECHR as having been directly
applicable to Belize before independence. Even the CCJ’s doctrine of
legitimate expectation does not resolve the tension. Berry argues that
under a strict dualist understanding of the relationship of international
legitimate
expectation about a process which is not legal under domestic law, let
alone even part of that domestic legal system.
Berry argues that if we want to modify the dualist approach, we must
do so in a principled way. Wit J’s approach in the case of AG v Joseph
offers one model, but others more in keeping with the common law also
can be developed and utilized. He suggests a wide range of legitimate
ways in which international law can be used by national tribunals,
from referring to international law as a non-binding, comparative
and potentially persuasive authority, to more profound roles in which
legislative transformation or interpretation. Customary international
law, for example, becomes part of the law of the land – the common
law – so long as it is not contradicted by statutory or judicial authority.
Treaties can be transformed into domestic law through legislation and
ambiguous domestic law, including both common and statutory law, can
be interpreted in the light of international law, including unincorporated
treaties. Finally, he suggests that Commonwealth Caribbean judges
have a role to play in establishing the types of statutes capable of being
viewed as transformation statutes – in other words, those implementing
treaty obligations in domestic law. In this vein, Berry suggests that
state actions before treaty bodies may demonstrate an understanding
by the executive that particular, previously-enacted statutes are to be
actions may allow a judge, when arriving at an informed interpretation of
the meaning of that statute, to look to the treaty which it is now meant to
do not fall foul of the problems inherent in bringing international law in
through the back door. Rather, they will simply be exercising the normal
judicial function of arriving at an informed interpretation of domestic
statutory and common law.
From the perspective of administrative law, Eddy Ventose takes a
more sanguine view of the CCJ’s treatment of the doctrine of legitimate
expectations. Like Berry, he is critical of the Privy Council’s contribution.
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Transitions in Caribbean Law
he describes the law generated by the Judicial Committee in death
penalty cases as in a state of disarray, with differently constituted boards
of the Privy Council coming to different conclusions and the ‘dissents of
yesterday became the majority decisions’ of today, producing uncertainty.
Ventose agrees with the CCJ’s conclusion that legitimate expectations
arise in this narrow case of condemned prisoners and says that this will
not amount to a wholesale enforcement of unincorporated treaties because
(b) positive statements by the state to abide by the Convention; (c) an
established practice by the state of allowing condemned persons to allow
their petitions to be processed before execution; and (d) Parliament in
making that amendment impliedly recognized that it was the practice
and indeed the obligation of the state to await the Commission’s process,
at least for some period of time. He anchors the appropriateness of the
application of legitimate expectations in the doctrine of the rule of law,
that to allow the state to renege on its promise or change its policy
amounts to an abuse of power. The rule of law dictates that the court
should not be impotent to provide a remedy where there has been abuse
of power by the executive. Where the executive promises to preserve
by the change in policy, it must keep its promise.
Transnational law has a third little explored element in the Caribbean.
Most of the Caribbean law discussed in this book falls within orthodox
these chapters describe a much more expansive sphere of transnational
rules and regulation that sit on the edge of and challenge conventional
draft Corporate Governance Code, and the recommended Caribbean Code
of Corporate Governance in Securities Markets and Caribbean Corporate
Governance Principles discussed by Goldson are all attempts at private
corporate culture and governance in the Caribbean. On the other hand,
Goldson shows how state actors who are not lawmakers greatly impact
the meaning and interpretation of the law. Jurisprudence, she shows,
seek the advice of registrars on statutory interpretation. These evolving
standards are shared across jurisdictions and thus contribute to the
wider transnational nature of Caribbean law.
xxi
Introduction
4. ‘The Habits of Constitutionalism’ 72
Constitutionalism, according to Richard Kay, ‘entails an attempt “to
keep a government in order.”’73 In other words, it ‘implements the rule of
law.’74 Over the last half century, the Caribbean has been coming to terms
with a system of limited government subject to written constitutions
with entrenched bills of rights. It took time for the Judicial Committee of
the Privy Council as the primary interpreter of these new constitutions,
to appreciate fully the implications of judicial review under a written
constitution with an entrenched bill of rights.75 In the early post-
independence period, constitutional adjudication was unfamiliar, and,
as Lord Bingham acknowledged, some courts resisted giving the written
constitutions and their protection of fundamental rights full effect as the
supreme law.76 The familiar approach of early Caribbean courts and the
Privy Council was to subordinate the constitutions to the common law,
one dimension of the Caribbean’s common law constitutionalism.77
By tracing the trajectory of the jurisprudence of the Judicial Committee
of the Privy Council from its early cases, Margaret DeMerieux reveals
how the Board over time weaned itself from its absolute reliance upon
the common law. Foundational cases such as Nasralla78 reveal the Privy
Council deciding issues on the basis of the existing law and the common
law, even in the face of stated constitutional rights. The old approach was
to treat constitutional bills of rights as codifying or leaving the common
law unchanged. Demerieux notes a shift, by the end of the 1970s and
early ’80s, to recognizing that the constitutional provisions provided for
rights differing in scope from those available at common law, including
new rights, and could found an independent cause of action. The Board’s
decisions in Maharaj No79 and Thornhill80 opened new ground by not
permitting the assertion of common law to defeat the fundamental rights
expressed in the bills of rights. DeMerieux offers a vision of a broader
compatibility between the common law and the bills of rights. Both the
common law and the interpretation of the bills of rights are matters
72. L. Ackermann, ‘The Obligations on Government and Society in our Constitutional State to Respect
and Support Independent Constitutional Structures’ (2000) 3 Potchefstroom Electronic Law
Journal/Potchefstroomse Elektroniese Regsblad 1, 4.
73. R. Kay, ‘American Constitutionalism’ in L Alexander (ed), Constitutionalism (CUP, Cambridge
1998) 16.
74. L. Alexander, ‘Introduction’ in L. Alexander (ed), Constitutionalism (CUP, Cambridge 1998) 1, 4.
75. Bowe v R [2006] UKPC 10, (2006) 68 WIR 10 (PC Bah) [42].
76. Tom Bingham,
Domestic Law (The Hamlyn Lectures) (CUP, Cambridge 2010) 69.
77. See M. Demerieux, Chapter 8, T. Robinson, ‘Gender, Nation and the Common Law Constitution’
(2008) 28(4) OJLS 735.
78. (1967) 10 WIR 299 (PC Ja).
79. (1978) 30 WIR 310 (PC T&T).
80. (1976) WIR 498 (PC T&T).
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Transitions in Caribbean Law
for judges, and common law adjudication can itself develop human
rights, or recognize and create new rights. This accords with Fraser JA’s
understanding of the common law as a ‘pragmatic system of rules and
principles fashioned by the courts to meet the needs of society as those
needs changed from time to time.’81
With few exceptions, the post-1960 constitutions marking self-
government or independence from Britain all contained bills of rights, a
dramatic turnaround in British decolonization policy.82 The thinking at
the time the bill of rights in the 1960 Nigerian Constitution was drafted,
which became the model for the Commonwealth including the Caribbean,
was that an entrenched bill of rights would better protect minority
groups. Ironically, Caribbean independence constitutions have been
the least durable in the most plural and ethnically diverse Caribbean
countries: Belize, Guyana and Trinidad and Tobago. The last two –
Guyana and Trinidad and Tobago, now republics, are the only countries
in the region that enacted new constitutions after independence. Belize’s
independence constitution of 1981 still governs, but it has undertaken
far more radical reforms than its Caribbean neighbours with much older
independence constitutions.
Stark gaps can be found between the constitution on paper and
its workings in Caribbean countries, evidence that the habits of
constitutionalism are not always well entrenched. Arif Bulkan shows
how ‘bare’ constitutional protections for judicial independence in
Guyana have been evaded or manipulated by governments outright.83
For example, judicial appointment processes have been subverted by the
infringed by post-retirement extensions of judicial tenure, which by their
independence can be threatened by the erosion of the jurisdiction of the
Court, as forewarned in the early decision in Hinds,84 Bulkan argues
that the same occurred by removing, without replacement, a layer of
appellate protection when the jurisdiction of the Judicial Committee of
the Privy Council was abolished in Guyana.
Guyana became the third English-speaking Caribbean country to
gain independence in 1966; Belize in 1981 was one of the last. Godfrey
81. Lassalle v AG (1971) 18 WIR 379 (CA T&T) 404. See T. Robinson, Chapter 11.
82. C. Parkinson, Bills of Rights and Decolonization: The Emergence of Domestic Human Rights
Instruments in Britain’s Overseas Territories (OUP, Oxford 2007).
83. A. Bulkan, Chapter 9.
84. (1975) 24 WIR 324 (PC Ja).
xxiii
Introduction
Smith points out one distinct advantage of later independence. In the
experience from its neighbours in the Caribbean and Commonwealth to
guide it in the constitution making process. To begin with, it did not
include many of the stultifying aspects of the earlier constitutions. Its
general savings law clause had limited application, it gave explicit right
to redress for breaches of the opening section to the bill of rights and it
included the right to work. Smith argues that these changes gave judges
a head start in expanding the frontiers of constitutional interpretation.
It is plain that the advancement of constitutionalism is not the ‘exclusive
province of the judiciary.’85 Constitutional reforms introduced to ensure
greater respect for the rule of law can be sidestepped by the executive.
On the other hand, there is some indication that Caribbean legislatures
can play a meaningful role in developing the habits of constitutionalism.
Smith describes in Belize a ‘symbiotic, mutually re-enforcing dynamic
between the judicial and the legislature’ in which the Belize legislature
has been ‘proactive, even aggressive’ in developing the constitution since
independence. Most amendments, almost counterintuitively, expanded
citizen rights, strengthened judicial independence and gave the Senate
unprecedented power. And he observes that most reforms have come from
recommendations of broad-based political reform processes or election
manifesto promises. It is that ‘dynamic complementarity’ between
space’ for indigenous people in Belize.86
Despite the hope that legislatures will deepen constitutionalism
through ethical constitutional reform, undertaken alongside broad-
based consultations, Bulkan and Robinson think that in the immediate
future, more will turn on what judges do. Since 1991, virtually every
single Commonwealth Caribbean country has been engaged in some
constitutional reform process. These have been stalled by oppositions
grounds or by new governments unwilling to pursue reforms already
or implied constitutional norms by the judiciary could buttress
constitutionalism in the Caribbean. Bulkan stresses that the need for
such norms is most evident where the constitutional texts, in particular
the bills of rights, are lacking. Resort to the constitution’s underlying
values, such as the separation of powers, the rule of law, democracy, and
judicial independence, can clarify contradictory constitutional provisions
85. G. Smith, Chapter 10. See A. Bulkan, Chapter 9.
86. G. Smith, Chapter 10.
xxiv
Transitions in Caribbean Law
effect to ‘our inherent constitution’ – implied constitutional norms – could
make the constitutions more our own. Her argument is that given the
vagaries of the political scene, people will turn to the courts to maintain
core fundamental constitutional values. Though implied constitutional
norms will generate a measure of uncertainty, she argues that they
can help chart progress in the face of ‘imperfect’ constitutions. Ralph
Carnegie dared Caribbean constitutional lawyers to, on occasion, read
the texts of their ‘imperfect’ constitutions lightly and focus more of them
on a form of poetry, laden with symbolism and open to different meanings
over time.87 In his view, rather than the text revealing all, it would be
‘experience and reasonableness and restraint in its administration [that
would determine] its effective working.’88
5. Transjudicialism and Institutional Redesign
In terms of institutional challenges, perhaps the key change alluded
to peripherally in several of the chapters in this book is the creation
of the CCJ.89 The CCJ plays two roles in the region, and thus can
and the common law, and (2) it sits as a treaty-interpreting tribunal,
empowered to interpret and apply norms governing CARICOM’s Single
Market and Economy and, at least potentially, regional customary
international law.90
court designed to advance economic integration and a Caribbean
jurisprudence, is understood commonly in nationalist terms, as
‘completing the independence’ of Caribbean states. Still, the concept of
the independent nation-state that propelled the decolonization process
in the mid-to-late twentieth century has been altered dramatically
by the forces of globalization and the internationalization of law. As
87. A.R. Carnegie, ‘‘The Importance of Constitutional Law in Jamaica’s Development’ October (1985)
WILJ 43, 50
88. Ibid 45.
89. Created by the Agreement Establishing the Caribbean Court of Justice (adopted 14 Feb 2001,
entered into force 23 Jul 2002)
accessed 17 Aug 2010 [‘CCJ Agreement’]. The status of this treaty was obtained from: CARICOM
17 Aug 2010.
90. The following 12 states are contracting parties to the CCJ Agreement and are thereby subject to the
Court’s original jurisdiction: Antigua and Barbuda, Barbados, Belize, Dominica, Grenada, Guyana,
Jamaica, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, Suriname, and Trinidad and
Tobago. Matrix (n 89).
xxv
Introduction
demonstrated by Janet McClean, globalization is connected to the
experiences of empire; she argues that the colonial experience of looking
outside national borders at different sources of law and seeking to be a
part of a broader legal community created ‘habits of mind that help ease
the transition to new supranational tribunals and supranational law.’91
Likewise today the Caribbean Court of Justice has noted the ‘distinct,
jurisprudence.’92
the trend towards ‘judicial globalization,’ which is described a ‘process
of judicial interaction across, above and below borders, exchanging ideas
and cooperating in cases involving national as much as international
law.’93 The establishment of a transnational regional/international court,
if nothing else, a concession to cosmopolitanism and interdependence.94
With respect to the CCJ’s appellate jurisdiction, although for a time,
only Barbados and Guyana allowed such cases to go to the court. They
recently have been joined by Belize, and the number of countries allowing
such appeals is likely to increase in the future.95 Although similar to
the jurisdiction of the Privy Council, the CCJ’s appellate jurisdiction
may possess a greater potential to change the nature of Commonwealth
Caribbean law. This is because as a post-independence, regionally-
created appellate court, the CCJ automatically will be vested with a
legitimacy that must be envied by the Privy Council. Judges are selected
by an independent Regional Judicial and Legal Services Commission,96
are safeguarded in terms of autonomy and independence by regional
treaties,97 and bring with them considerable personal experience of
91. J. McLean, ‘From Empire to Globalization: The New Zealand Experience’ (2004) 11 Indiana J Glob
Legal Studies 161, 180.
92. Boyce v AG [2006] CCJ 3 (AJ), (2006) 69 WIR 104 [106].
93. A-M Slaughter, ‘Judicial Globalization’ (2000) 40 Virginia J Int’l Law 1103, 1104.
94. T. Robinson (n 25) 123.
95. Belize recently replaced the Privy Council with the Caribbean Court of Justice: A. Ramos,
‘Sayonara, Privy Council! Hello, CCJ!’ Amandala Online (Belize City 14 May 2010)
amandala.com.bz/index.php?id=9837> accessed 19 Aug 2010.
96. For example, the CCJ Agreement, art V.
97. For example, the CCJ Agreement, arts IV and V (appointment and removal), VII and XXX
Agreement Establishing the Caribbean Court of Justice Trust Fund (adopted 12 January 2004,
entered into force 27 January 2004); Protocol on the Privileges and Immunities of the Caribbean
Court of Justice and the Regional Judicial and Legal Services Commission (adopted and entered
into force 4 July 2003); Protocol to the Agreement Establishing the Caribbean Court of Justice
Relating to Security of Tenure of Members of the Regional Judicial and Legal Services Commission
(adopted and entered into force 6 July 2006); Protocol to the Agreement Establishing the Caribbean
provisionally applied from 7 June 2007, not yet in force). The latter four treaties are all available
through the website of the Caribbean Court of Justice at
court_instruments.html> accessed 17 August 2010. Status information is from Matrix (n 89).
xxvi
Transitions in Caribbean Law
the cultural, social and legal norms of Commonwealth Caribbean
jurisdictions.
In its second role the CCJ is the original, exclusive, compulsory, and
Chaguaramas (Revised Treaty),98 and other relevant rules of international
law.99
in the chapters of this book, but is worth highlighting because it may
by interpreting, implementing and enforcing the rules, values and
overarching legal architecture of the Revised Treaty. But it can also do so
in a subtler manner, in a way similar to the Privy Council. The decisions of
the Privy Council – by drawing parallels between constitutional and legal
provisions from several Commonwealth Caribbean states – push states
to rethink their laws whenever similar provisions elsewhere are found
wanting, and also inculcate a regional ‘comparative law’ habit. So too
can the CCJ push states to compare, and at times borrow from, regional
legislative developments which are meant to implement CARICOM rules.
Further, the CCJ may force Caribbean countries to think more deeply
about our regional enterprise, since the task of interpreting and enforcing
practicalities of regional trade and economic interaction. For example,
tariff (CET) on a fundamental natural resource necessary for regional
development – cement.100 In these cases, the CCJ initiated a bold new
locus
standi of persons before the Court, the rules of treaty interpretation, the
98. Revised Treaty of Chaguaramas Establishing the Caribbean Community Including the CARICOM
Single Market and Economy (adopted 5 July 2001, entered into force 1 January 2006)
www.caricomlaw.org/agreements.php> accessed 17 August 2010. The Revised Treaty entered into
force in accordance with Article I of the Agreement to Enable the Entry Into Force of the Revised
Treaty of Chaguaramas Establishing the Caribbean Community Including the CARICOM Single
Market and Economy (adopted 21 December 2005, entered into force 9 February 2006)
www.caricomlaw.org/agreements.php> accessed 17 August 2010. Article I of the Agreement
Secretariat (Personal email correspondence 24 August 2010).
99. CCJ Agreement, art XVII.
100. The eight original jurisdiction decisions of the CCJ as of May 2011 are: TCL v Guyana (Interim
v Caribbean Community (Jurisdiction) [2009] CCJ 2 (OJ), (2009) 74 WIR 329; Doreen Johnson v
CARICAD (Jurisdiction) [2009] CCJ 3 (OJ); TCL v Caribbean Community No 2 (Judgment) [2009]
327; TCL v Guyana (Decision on extension) [2009] CCJ 6 (OJ); TCL v Guyana No 3 (Judgment
on contempt) [2010] CCJ 1 (OJ), (2010) 76 WIR 312. All of the Court’s judgments are available
through accessed 17 August 2010.
xxvii
Introduction
nature of CARICOM, the purpose of the Single Market and Economy,
and the availability of forms of relief in the original jurisdiction. More
profoundly, these original jurisdiction decisions already reveal that by
ratifying the Revised Treaty Member States of the Caribbean Community
have changed the legal nature of the region. They have conferred upon
private economic entities ‘rights capable of being enforced directly on the
international plane,’101 and created ‘a regional system under the rule of
law,’102 one which implies a power of judicial review103 and the potential
for state liability in damages for breach of the Revised Treaty.104 In these
decisions, the CCJ also has signalled its willingness to interpret and
apply general rules of customary international law, general principles
of international law, and general principles of Community law.105
The latter could serve as the basis for a number of far-reaching legal
developments, as seen in other jurisdictions. In the jurisprudence
of the European Court of Justice, for example, general principles of
Community law were used as the judicial foundation for the principle
of fundamental rights, long before human rights were recognized in the
EU treaty regime.106 In the Inter-American system of human rights, the
rules of treaty interpretation have been construed to enable the use of
regional declaratory instruments to read human rights into the broader
treaty regime,107 and a similar development could take place in the
jurisprudence of the CCJ through interpretation of the Revised Treaty
in light of the human rights principles of CARICOM’s Charter of Civil
Society.108 Such developments, and potential developments, augur well for
increased regional integration which, although in this instance focused
on the CARICOM Single Market and Economy, may have broader long
term implications for the development of both regional and national legal
systems, including human rights systems. By acting on both the national
and regional planes the CCJ is at the forefront of developing national,
and perhaps even regional, constitutional law.
101. TCL v Guyana [2009] CCJ 1 (OJ) [18].
102. TCL v Caribbean Community [2009] CCJ 2 (OJ) [32].
103. TCL v Caribbean Community No 2 [2009] CCJ 4 (OJ) [38].
104. TCL v Guyana No 2 [2009] CCJ 5 (OJ) [27].
105. TCL v CARICOM [2009] CCJ 2 (OJ) [41] (referring to ‘general principles of law common to Member
States’).
106. For example, Stauder v Ulm (Case 29/69) [1969] ECR 419 (ECJ), Nold v Commission (Case
4/73) [1974] ECR 491 (ECJ), Roquette Frères SA v Directeur Général de la Concurrence de la
Consommation et de la Répression des Fraudes (Case C-94/00) [2002] ECR I-9011(ECJ).
107. Interpretation of the American Declaration of the Rights and Duties of Man within the Framework
of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89 of 14
July 1989, Inter-American Court of Human Rights, Series A, No 10
opiniones.cfm> accessed 19 April 2011.
108. Charter of Civil Society for the Caribbean Community, adopted at the Eighth Inter-Sessional
Meeting of the Conference of Heads of Government of the Caribbean Community on 19 February
1997 accessed
19 April 2011.
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