Commonwealth Caribbean Law and Legal Systems

Rose-Marie Belle Antoine

• Editorial: Routledge-Cavendish
• Año: 2008
• ISBN:
  9781135333843
• Edición: 2
• Categoría: Law
• Categoría: Law Theory & Practice

Fully updated and revised to fit in with the new laws and structure in the Commonwealth Caribbean law and legal systems, this new edition examines the institutions, structures and processes of the law in the Commonwealth Caribbean.

The author explores:

- the court system and the new Caribbean Court of Justice which replaces appeals to the Privy Council

- the offshore financial legal sector

- Caribbean customary law and the rights of indigenous peoples

- the Constitutions of Commonwealth Caribbean jurisdictions and Human Rights

- the impact of the historical continuum to the region's jurisprudence including the question of reparations

- the complexities of judicial precedent for Caribbean peoples

- international law as a source of law

- alternative dispute mechanisms and the Ombudsman

Effortlessy combining discussions of traditional subjects with those on more innovative subject areas, this book is an exciting exposition of Caribbean law and legal systems for those studying comparative law.

PART I
THE NATURE OF THE LAW AND LEGAL SYSTEMS AND ITS HISTORICAL PRECEPTS

CHAPTER 1
INTRODUCTION TO LAW AND LEGAL SYSTEMS IN THE COMMONWEALTH CARIBBEAN

THE NATURE OF THE LEGAL SYSTEM

The study of law and legal systems is a diverse and intriguing subject which cannot be divorced from its proper social context. In the Commonwealth Caribbean, the law and legal systems were born out of the colonial experience. Indeed, the very nomenclature by which the region is known is evidence of this. The notion of a ‘Commonwealth’ betrays the historical fact of imperialism and gave the region a certain identity, which even today, still survives.

For a description with less emotive connotations, the Commonwealth Caribbean is that part of the globe known as the West Indies.¹ It comprises both dependent and independent democratic States, but the former are now few in number.² The independent countries of the region belong to a socio-economic grouping—a loose political community labelled the Caribbean Community (CARICOM).³ There is a further sub-grouping of the countries of the Eastern Caribbean, known as the Organisation of the Eastern Caribbean States (OECS).

A West Indian identity?

The historical reality of colonialism is perhaps more evident in the study of ‘Law and Legal Systems’ than in any other legal subject. While the ex-colonies have attempted to fashion new identities since gaining independence, their legal expressions remains largely British, or, at least, neo-colonial. As Sharma JA from the Trinidad and Tobago Court of Appeal explained in Boodram v AG and Another:⁴

… even after independence, our courts have continued to develop our law very much in accordance with English jurisprudence. The inherent danger and pitfall in this approach is that, since independence our society has developed differently from the English and now requires a robust examination in order to render our Constitution and common law more meaningful.⁵

Turn toward other foreign law?

More recently, Commonwealth Caribbean courts and jurists have sought to resort less to English jurisprudence, turning instead to legal thought and infrastructure from elsewhere, such as Europe and North America. The emphasis on North American and European jurisprudence is most pronounced in constitutional adjudication, largely perhaps because of the absence of a written UK Constitution and consequent jurisprudence upon which to lean. However, these foreign solutions still deny our own creativity and experience.

The convergence toward North American models of legal systems is also seen in the recent adoption of case management, court practices and rules borrowed from North America, with the aim of making court adjudication more efficient. Further, we have already seen a high degree of Americanisation of the region, aided no doubt, by geographical proximity and the dominance of American television and pop culture. That same television is a medium for transmitting models of justice, such as televised trials, racially constructed juries, new rules of evidence, and changing the locations of juries to avoid bias. These may challenge long-held assumptions about the right (English) way of doing things. Perhaps the day is not too far away when we will be electing judges!

Some options which may be borrowed from the American legal system seem more attractive than others. Contingency fees, for example, may be suitable in societies such as ours where many citizens find the cost of justice to be prohibitive and where legal aid is scarce. It may also have the effect of speeding up the process, by encouraging legal counsel to be more time-efficient.⁶ In addition, as discussed in Chapter 18 (‘Specialised Courts, Tribunals and Functions’), it has been argued that multicultural societies such as ours should be accurately reflected in the composition of our juries, a position which has been resisted under the traditional English jury system, but adopted in the US.

Similarly, access to court trials on television, a medium which is wholeheartedly embraced in the region, may encourage more inclusion in the adjudication system, in societies whose peoples have traditionally felt that formal channels of justice were closed to them or alienated from them. This is not a panacea, however, as television trials also have great potential to distort truth or sensationalise litigation.

The plantation paradigm

Noted economists, historians and sociologists have described the region as ‘plantation societies’,⁷ a reference to the fact that the territories were once shaped by the dictates of the great sugar plantations. The plantation paradigm best explains the ‘persistent poverty’ of the region, both in terms of economics and legal innovation.⁸

The legal systems of the region cannot, therefore, be described as endogenous. The greatest divergence of this colonial outlook can be seen to be the advent of written Constitutions, in particular, Bills of Rights, again a product of independence. Yet, even here, we cannot say that there is complete originality. The written Constitutions of the Caribbean borrowed heavily from international human rights instruments, and were constructed with much less indigenous input than is usually expected of such defining documents.

The battles between different imperialist powers, while challenging periodically the dominance of the English common law, did not allow the development of a unique West Indian law in the interplay and consequently did not undermine the exogenous nature of the law. The region still awaits the revolution which will force capitulation of these essentially non-West Indian strains of legal dominance.

It appears that we are successful legal civilisations if we judge ourselves by how admirably we have retained and maintained the English jurisprudence that we inherited or, more accurately, was thrust upon us. However, we have exhibited failure in our inability to put our own stamp, our own face, on our justice. Ultimately, law is meant to reflect society and to engineer society. Yet our law still looks very alien and foreign to many.

Striving to be West Indian

The region’s law and legal systems are still ‘striving’ to be West Indian. Apart from deviations from Westminster-style democracy, as evidenced by the written Constitutions, there have been experiments with socialism and democratic socialism in at least three countries: Jamaica, Guyana and Grenada. In the latter two nations, the impact of these political changes extended to their Constitutions.⁹ In Grenada, the change was profound, even including a suspension of the Constitution under a revolutionary government, with a substantial change to the court structure which necessitated complex jurisprudential questions about State legitimacy.¹⁰

In addition, while the base of the law and legal systems remains the common law, the detail of that law has been changed according to the social, political and economic needs of the region, albeit not substantially enough in the eyes of many.

The vulnerabilities of the legal system to socio-political realities

In our examination of Commonwealth Caribbean law and legal systems, what we find is that there are common denominators in the many subject areas in this book. They are: issues of political and cultural sovereignty, economic sustainability and even of economic survival. These underline the vulnerable status and place of small developing countries in the world. An important thread running through our analyses is the extent to which small, poor, developing nations such as those in the region, have the freedom and the flexibility to fully define the legal systems therein. This may, at first blush, seem to be an alarmist, rather extreme position, but upon closer examination, we shall see that there are important truths and realities to be ascertained. When we speak of difficulties in defining and shaping the legal systems in the region, we are not, of course, speaking of the kind of legal displacement that can occur when one country invades or intervenes in another smaller, weaker, country. That brings its own dynamics and is certainly something which occurred very early in our legal history, although the existence of the legal and political systems of the original peoples is hardly even acknowledged.¹¹ Instead, legal displacement may be far more subtle and may even be welcomed with open arms. Indeed, in some cases, it is self-perpetuating.

Economic and political sovereignty and the impact on law

The region’s economic and political sovereignty is clearly not untouched by the dictates of larger States. For example, CARICOM was threatened with economic retaliation by the US for not voting to excuse the US from the jurisdiction of the International Criminal Court as it requested.

These political realities may have implications for the kinds of laws which we put into place. For example, they have had practical impact in the urgency with which the region has had to implement laws against terrorism. Such initiatives have hefty economical implications. While they may not be undesirable objectives in themselves, they do demonstrate the extent to which legal changes in policy may be dictated from outside of the region and the often low priority given to pressing issues of law reform in favour of external priorities. Often, these are not choices, but imperatives.

These vulnerabilities were born out of the colonial, imperialist construct in which law had an important part to play. This function of the law is the subject of the following chapter. Here, we note merely that law in the region has also served as a powerful tool of underdevelopment and dependency. Some would argue that it even cemented the economic servitude of the former colonies by notions of property that guaranteed the continued ownership and even the monopoly of vital sectors of the economy to the former colonial masters. Its notions of property and compensation were further used in the French West Indies to perpetuate unjust notions of ownership of human beings when Haiti, the first independent black nation, was made to pay millions in compensation to France for the ‘loss’ of the former slaves as property. This payment lasted for over 200 years, contributing to Haiti being the poorest nation in the Western hemisphere.¹²

PLURALISTIC SOCIETIES—RASTAFARIANISM AND BEYOND

The societies in the Commonwealth Caribbean have often been described as ‘pluralistic’.¹³ This is taken to mean that there are several diverse ethnic, religious and class groups existing within these societies. While these groups make up one society, their cultural and social differences can still be identified.

Despite this sociological classification, with few exceptions, such pluralism is not evident within the law and legal systems of the region. From a legal perspective, the Commonwealth Caribbean can be seen as a homogenous entity, joined by strong British legal ties. The major deviations are the hybrid legal systems of St Lucia and Guyana, discussed below. Yet even these hybrid systems do not seriously challenge the homogeneity of Commonwealth Caribbean law and legal systems. Within each country’s legal system, homogeneity is also evident.

This does not mean that areas of legal divergence between the various countries which make up the Commonwealth Caribbean do not exist. While the countries share the inheritance of the common law as the basic law, there are differences in socio-political and economic policy which are ref...