The CCJ decolonizing Caribbean constitutionalism

The Caribbean Court of Justice was conceived to further the Anglophone Caribbean’s decolonization process. Decolonization included not just transitions from colony to independent statehood but also the repudiation of imperial formations. The Court’s capacity to do this is evident in the McEwan Case. Using bold approaches to interpretation, the CCJ effectively erased the general savings law clause (which was previously treated as effective in immunizing colonial laws from inconsistency with the Bill of Rights) and affirmed the fundamental rights of trans persons. Since those clauses tethered post-independence constitutionalism to colonial era legal arrangements, erasure has the effect of bringing the Constitution forward and home. I argue that erasure is the result of proper methods of interpretation and not overreach since savings clauses are now functionally obsolete. The CCJ also signalled its decolonising capacity by articulating Caribbean identity in inclusive terms. It rightly affirmed that trans persons are entitled to full membership in the political community, in circumstances where its position is likely an anti-majoritarian one. The CCJ is demonstrating its decolonizing capacity in a context where, it is argued, the Privy Council cannot. It is hoped that other Caribbean States will be encouraged to accede to the CCJ’s appellate jurisdiction.     

CARICOM,the CSME,and absolute sovereignty: lessons learnt on the road towards regional integration

As a regional bloc, the Revised Treaty of Chaguaramas (RTC) provides an opportunity for all of its Member States to benefit from regional integration and to better withstand the effects of globalisation. This article examines two recent cases involving Guyana that were litigated before the Caribbean Court of Justice (CCJ) (the 2009 “TCL Case” and 2014 “Rudisa Case”) and discusses several important issues borne out during the cases, whereas also highlighting potential or emergent issues which may emanate from these cases in the future. These cases are analysed with a view to highlighting the important role of the CCJ in interpreting the RTC.     

The Caribbean Court of Justice and the Legal Profession: Promoting a Caribbean Jurisprudence*

The author submits that the main purpose in the establishment of the Caribbean Court of Justice (CCJ) is to promote the development of a Caribbean jurisprudence, based on the Commonwealth Caribbean's common historic, political, economic and cultural experiences and mutual history.

The article examines the role of final appellate courts, noting that judges of such courts must often choose between alternatives which are perfectly capable of being defended as rational, reasonable and consistent with ‘the law’. Factors such as life experiences, socialisation, and backgrounds all play a role in determining the choices that are ultimately made. This is why, the author underscores that ‘it is so important to have a diverse Bench, to have Judges from different backgrounds’.

For judges to come close to steering the right course they must have an understanding of the society that gives rise to the legal disputes. They must be grounded in that society. In this respect, the author argues, it is remarkable that the evolution of certain landmark judgments relating to human rights, particularly capital punishment, have been rendered by British judges, sitting and residing in England.

The article, which draws on a wealth of jurisprudence, proceeds to examine the original jurisdiction of the CCJ and the role of the Bar in defending the integrity of the Court and the justice system as well as in enhancing the quality of judgments.

Finally, it emphasises the need to promote Caribbean jurisprudence and access to local judgments. In this regard, it is lamented that many truly outstanding judgments of Caribbean judges do not receive the recognition they should because, if there is an appeal, they become almost automatically buried beneath the judgments of the higher court.     

Constitutionalising Subsidiarity in Integrated Markets: The Case of Tobacco Regulation in the European Union

Abstract:  The article establishes three propositions. First, if a constitution establishes the principles of subsidiarity and proportionality as legal principles, questions of competencies are closely tied up with questions of regulatory policy. This means that the Treaty carves out a powerful role for the Court of Justice to assess the jurisdictional reasonableness of market intervention when reviewing whether the EU was legally competent to act. Second, general scepticism about courts being able to play such a demanding role in policing jurisdictional boundaries in federal systems are unjustified in the EU. The new procedure established in the Constitutional Treaty, which is likely to be included in any renegotiated constitutional settlement, involves national Parliaments and the Commission building a written record addressing the relevant policy issues on which the court can base its review. Additionally national courts serve as an external check on the Court of Justice, disciplining the Court of Justice to focus on taking competencies seriously or facing the prospect of national courts disapplying EU law on the grounds that it was enacted ultra vires. Third, even though there are some promising points of departure in its case law, the Court of Justice has not yet adopted a doctrinal framework that effectively operationalises the Treaty's commitment to subsidiarity and proportionality in the context of the common market.     

Au nom de qui? The European Court of Justice between Member States,Civil Society and Union Citizens

Abstract: How does the quest for legitimacy of the European Union relate to the view the European Court of Justice(ECJ) accords to Union citizens, civil society and to private actors? It is submitted that the ECJ is currently developing a jurisprudence under which citizens, as well as their organisations and corporate private actors, are gradually, and in almost complete disregard of the public/private distinction, being included in the matrix of rights and—a crucial point—obligations of the treaties. The ECJ incorporates civil society actors and citizens, beyond notions of representative (citizenship) and participatory (civil society) democracy, into the body of law and thereby reworks its own and the Union's identity. Two core aspects are explored: the first is the reconfiguration of Union citizenship as a norm which triggers the application of the substantive norms of the EC Treaty. The second aspect of this evolution is the creation of ‘private governance’ schemes, i.e. processes in which, as a rule, private action is regarded as action that has to meet the standards of the Treaty. The analysis shows that the court is disentangling itself from the State‐oriented Treaty situation and drawing legitimacy directly from citizens themselves so that judgments should be pronounced ‘In the Name of the Citizens of the European Union’.

1 European Court of Justice 20 September 2001, Case C‐184/99, Grzelczyk [2001] ECR I‐6193, para. 31.

     

Time and Transcendence: Narrating Higher Authority at the Caribbean Court of Justice

This article examines the relationship between time and authority in courts of law. Newness, in particular, poses an obstacle to a court's efforts to establish authority because it tethers the institution to a timeline in which the human origins of the court and the political controversies preceding it are easily recalled. Moreover, the abbreviated timeline necessarily limits the body of legal authority (namely, the number of judgments) that could have been produced. This article asks how a court might establish its authority when faced with such problematic newness. Based on extensive ethnographic research at the Caribbean Court of Justice, I demonstrate how the staff and judges at this relatively young tribunal work to create a narrative in which the Court transcends its own troublesome timeline. They do this by attempting to construct a time‐transcendent principle of Caribbeanness and proffering the Court as a manifestation of this higher authority. The Court's narrative of its timelessness, however, is regularly challenged by far more familiar tales of its becoming, suggesting that in this court, as in all courts, the work of building and maintaining authority is ongoing.     

‘The referring court asks,in essence’: Is reformulation of preliminary questions by the Court of Justice a decision writing fixture or a decision‐making approach?

The Court of Justice can rephrase or otherwise depart from the questions referred to it by national courts under Article 267 of the Treaty of the Functioning of the European Union. It does so routinely: a practice known as reformulation. Legal literature often argues that reformulation is used to clarify national court questions and bring them within the scope of European Union law. The aim of the present article is to explore this claim systematically. To this end, it compiles a unique dataset consisting of the Orders for Reference, in which the referring courts embed the preliminary questions, and the judgments, in which the Court of Justice communicates the answers. The findings suggest that reformulation is a decision‐making approach rather than a fixture of decision writing. It's main function is to neutralize conflicts and Europeanise disputes. It underlines the Court's power to shape the preliminary ruling procedure and its outcomes.     

Common Foreign and Security Policy: The Consequences of the Court's Extended Jurisdiction

Despite the explicit exclusion of its jurisdiction, the Court of Justice of the European Union exercises judicial control over Common Foreign and Security Policy (CFSP). This article examines and explains how the Court's extended jurisdiction contributes to the juridification, judicialisation and constitutionalisation of the EU's compound CFSP structures. It first lays the groundwork by explaining the link between constitutionalisation and democratic legitimation and setting out the Court's formal jurisdiction over CFSP under Article 40 Treaty on European Union and Articles 218(11) and 275(2) Treaty on the Functioning of the European Union. The centre piece of the article then identifies how the Court's jurisdiction has expanded since the entry into force of the Lisbon Treaty, points at additional ‘substantive’ avenues of judicial review on the basis of access to information and access to justice, and analyses the effects of the Court of Justice of the European Union's extended jurisdiction for CFSP.     

Appointment and Term of Office of Judges of International Courts: Innovations from Africa?

Non‐nationals of the Member States of the Common Market for Eastern and Southern Africa (Comesa) were in the past appointed to the Comesa Court of Justice (the Comesa Court) on the basis of their domicile rather than nationality. This article examines the relevant legal provision in this regard and points out that it is capable of far‐reaching interpretation, possibly beyond the intention of the parties to the Treaty establishing Comesa. Further, while the Treaty allows persons who are Judges or are qualified to be Judges in their home countries to be appointed, it also permits the appointment of distinguished lawyers. The article examines the emerging practice in terms of preferences between the two categories and assesses its desirability. In addition, the manner of appointing the President of the Court is mentioned and commented on in relation to its ability to promote or impair judicial independence. Finally, for a two‐year period ending in June 2005, there were no Judges in office on the Comesa Court. The stipulation that led to this hiatus is briefly noted and discussed. During the discourse, comparisons are made with the European Court of Justice and the Court of Justice of the East African Community.     

From vocational training to education: the development of a no‐frontiers education policy for Europe?

This article focuses on developments towards an EU educational policy. Education was not included as one of the Community competencies in the Treaty of Rome. The first half of the article analyses the way that the European Court of Justice and the Commission of the European Communities between them managed to develop a series of substantial Community programmes out of Article 128 on vocational training. The second half of the article discusses educational developments in the community following the Treaty on European Union and the Treaty of Amsterdam. Whilst the legal competence of the community now includes education, the author's argument is that the inclusion of an educational competence will not result in further developments to mirror those in the years before the Treaty on European Union. If the 1980s were a decade of expansion, the medium‐term future is likely to be one of consolidation.     

Constitutional Review in the Mega‐Leviathan: A Democratic Foundation for the European Court of Justice

The European Court of Justice (ECJ) serves, among other things, as a constitutional court for the EU. This means that it possesses the legal right to strike down both EU and national laws it deems irreconcilable with treaty provisions. In the present article, we shall draw on Hans Kelsen's theory of democracy to argue that the ECJ's competence to review and invalidate legislation is, in fact, indispensable for the democratic legitimacy of the EU's legal system as a whole.     

How Does the European Court of Justice Reason? A Review Essay on the Legal Reasoning of the European Court of Justice

This review essay analyses two significant recent contributions to the debate over the reasoning of the Court of Justice (CJ). These contributions highlight the impossibility of a wholly scientific and deductive approach to attributing ‘correct’ outcomes to the Court's case‐law. At the same time, their analysis adds significant findings for the debate over the Court's possible ‘activist’ or political role. Following from these contributions, this essay makes two arguments: firstly, that the inability of the Court to anchor its reasoning solely in a deductive form of legal reasoning should encourage the CJ to engage in a more advanced ‘constitutional dialogue’ with the EU's political institutions; and secondly, that truly understanding the Court's reasoning involves a closer analysis of the institutional and personal dynamics influencing Court decisions. Understanding European judicial reasoning may require a closer look at the social and political—as well as doctrinal—context within which European judges act.     

Northern Ireland Dimensions to the First Decade of the United Kingdom Supreme Court

This article focuses on the relationship between the United Kingdom Supreme Court and Northern Ireland over the course of a constitutionally significant period of time, namely the first decade of the Court's existence. It does this by exploring what difference the Court has made to the law of Northern Ireland, what significance the cases from Northern Ireland have had for the law in other parts of the United Kingdom, and what part has been played in the Court's work by the sole Justice from Northern Ireland, Lord Kerr of Tonaghmore, and by the Attorney General for Northern Ireland, John Larkin QC. It concludes that the Court has established itself as an indispensable component of the legal system of Northern Ireland.     

Domestic violence case processing: a matter of local legal culture

As one enters a courthouse, its culture is communicated to its listening visitors. The manner in which the security guards speak; the length of time victims are kept waiting; the amount of bail a defendant is assessed; communicate messages to those who are paying attention. Domestic violence cases have long suffered from lenient treatment and dismissals in our criminal courts. This paper examines a unique explanation for this problem: the court’s local legal culture. The elements of two courts’ local legal culture that most profoundly impacted their processing of domestic violence cases are examined. Over a six month period, 23 in depth interviews were conducted with court workgroup members in two courts, one with a specialized domestic violence session and one without. Court room observations were used to supplement these interviews. The results were insightful and telling about how a court’s culture can, at times, be more influential on case processing than the law itself.     

Social Insurance Monopolies in Community Competition Law and the Italian Constitution: 'Practical' Convergences and 'Theoretical' Conflicts

An Italian judge, following earlier suggestions of the national antitrust Authority, has referred to the Court of Justice for a preliminary ruling under Article 234 EC Treaty two questions on the interpretation of Articles 81 and 86 of the EC Treaty. With those questions, raised in an action brought by a self‐employee against the Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro (INAIL) concerning the actor's refusal to pay for social insurance contributions, the Tribunale di Vicenza has in summary asked the Court of Justice whether the public entity concerned, managing a general scheme for the social insurance of accidents at work and professional diseases, can be qualified as an enterprise under Article 81 EC Treaty and, if so, whether its dominant position can be considered in contrast with EC competition rules. This article takes this preliminary reference as a starting point to consider in more general terms the complex constitutional issues raised by what Ge´rard Lyon‐Caen has evocatively called the progressive ‘infiltration’ of EC competition rules into the national systems of labour and social security law. The analysis is particularly focused on the significant risks of ‘constitutional collision’, between the ‘solidaristic’ principles enshrined in the Italian constitution and the fundamental market freedoms protected by the EC competition rules, which are implied by the questions raised in the preliminary reference. It considers first the evolution of ECJ case law—from Poucet and Pistre to Albany International BV—about the limits Member States have in granting exclusive rights to social security institutions under EC competition rules. It then considers specularly, from the Italian constitutional law perspective, the most recent case law of the Italian Constitutional Court on the same issues. The ‘contextual’ reading of the ECJ's and the Italian Constitutional Court's case law with specific regard to the case referred to by the Tribunale di Vicenza leads to the conclusion that there will probably be a ‘practical convergence’in casu between the ‘European’ and the ‘national’ approach. Following the arguments put forward by the Court of Justice in Albany, the INAIL should not be considered as an enterprise, in line also with a recent decision of the Italian Constitutional Court. And even when it was to be qualified as an enterprise, the INAIL should in any case be able to escape the ‘accuse’ of abuse of dominant position and be allowed to retain its exclusive rights, pursuant to Article 86 of the EC Treaty. This ‘practical convergence’in casu does not, however, remove the latent ‘theoretical conflict’ between the two approaches and the risk of ‘constitutional collision’ that it implies. A risk of a ‘conflict’ of that kind could be obviously detrimental for the European integration process. The Italian Constitutional Court claims for herself the control over the fundamental principles of the national constitutional order, assigning them the role of ‘counter‐limits’ to the supremacy of European law and to European integration. At the same time, and more generally, the pervasive spill over of the EC market and competition law virtually into every area of national regulation runs the risk of undermining the social and democratic values enshrined in the national labour law traditions without compensating the potential de‐regulatory effects through measures of positive integration at the supranational level. This also may contribute to undermine and threaten, in the long run, the (already weak) democratic legitimacy of the European integration process. The search for a more suitable and less elusive and unilateral balance between social rights and economic freedoms at the supranational level should therefore become one of the most relevant tasks of what Joseph Weiler has called the ‘European neo‐constitutionalism’. In this perspective, the article, always looking at the specific questions referred to the Court of Justice by the Tribunale di Vicenza, deals with the issue of the ‘rebalance’ between social rights and economic and market freedoms along three distinct but connected lines of reasoning. The first has to do with the need of a more open and respectful dialogue between the ECJ and the national constitutional courts. The second is linked to the ongoing discussion about the ‘constitutionalization’ of the fundamental social rights at the EC level. The third finally considers the same issues from the specific point of view of the division of competences between the European Community and the Member States in the area of social (protection) policies.     

Is there an EU Copyright Jurisprudence? An Empirical Analysis of the Workings of the European Court of Justice

The Court of Justice of the European Union has seen a dramatic and controversial increase in copyright cases during the last decade. This study investigates empirically two claims: (i) that the Court has failed to develop a coherent copyright jurisprudence (lacking domain expertise, copyright specific reasoning, and predictability); (ii) that the Court has pursued an activist, harmonising agenda (resorting to teleological interpretation of European law). We analyse the allocation of copyright and database right cases by Chambers of the Court, Advocate General (AG) and Reporting Judge, and investigate the biographical background of the Judges and AGs sitting. We trace patterns of reasoning in the Court's approach through quantitative content analysis. Legal topoi that are employed in the opinions and decisions are linked to the outcomes of each case.     

Unincorporated Treaties and Small States

For small, developing, common law dualist jurisdictions aspiring to good governance based on the rule of law, their written constitutions are normally expressed to be their supreme law which regulates the allocation of governmental powers and accords their citizens a measure of predictability in the evaluation of their civil rights and determining their civic responsibilities. Predictably, therefore, competent decision‐makers of such states are extremely wary of international developments in treaty‐making and judicial decision‐making which, unwittingly or by design, operate to subject the interpretation and application of their supreme law to external determinants hostile or indifferent to their indigenous value systems. In the premises, dualism as historically understood and practiced by small, weak, sovereignties is seen as a normative prophylactic device for safeguarding and sustaining their preferred values. Drawing on a wealth of case law and legal literature, this article undertakes an in‐depth evaluation of the legal ramifications of unincorporated treaties on dualist jurisdictions, with particular emphasis on small Caricom Member States. Reference is made to the Caribbean Court of Justice (CCJ), which has been called upon to examine and pronounce on recent innovative determinations of the Judicial Committee of the Privy Council (JCPC) and which have been expressed by competent regional decision‐makers to introduce unacceptable levels of uncertainty into the administration of criminal justice in the Caribbean Community. It is submitted that the determinations of the JCPC reached in Thomas v Baptiste and reaffirmed in Neville Lewis v Attorney‐General of Jamaica, which ratified unincorporated treaties concluded by the executive, appear to have far‐reaching negative implications for the Member States of the Caribbean Community.     

Judicial Review of European Anti-Terrorism Measures—The Yusuf and Kadi Judgments of the Court of First Instance

Abstract:  In the Yusuf and Kadi judgments of 21 September 2005, the Court of First Instance endorsed the Community practice of sanctioning individuals blacklisted by the United Nations (UN). It accepted that the Community uses its competence to adopt state sanctions in combination with Article 308 EC to freeze the assets of civil persons, including European citizens. The court also reduced its jurisdiction to a basic scrutiny of whether jus cogens was violated. The Court of First Instance's decisions can be criticised on various grounds. First, the application of these Articles is contrary to the wording of the Treaty and the case-law of the European Court of Justice (ECJ). Further, as a consequence of the Court of First Instance's judgments, decisions of the UN Sanctions Committee become the supreme law within the EU, provided they meet the requirements of jus cogens as defined by the Court of First Instance. In addition, the individual is deprived of all fundamental rights guaranteed under European law.     

European Judicial Cooperation in Criminal Matters

Abstract: European judicial cooperation in criminal matters has its origins under Title VI as part of the Third Pillar (JHA) of the Treaty on European Union, signed on 7 February 1992 in Maastricht. Nevertheless, there have been important amendments to this Treaty and to the contents of the Justice and Home Affairs policy through the Treaty of Amsterdam and the Treaty of Nice (the latter in force since last February), such as, for example, the introduction of the European Prosecutors Cooperation Unit (‘Eurojust’). This brief study is concerned with these innovations as well as some legal instruments in the field of criminal judicial cooperation, in particular extradition, mutual recognition of judicial decisions, mutual assistance in criminal matters and the European arrest warrant which are considered as the most relevant.