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.     

Constitutionality of removals of magistrates in the Commonwealth Caribbean

This article considers the constitutional protections provided to magistrates in the Commonwealth Caribbean. It explores decisions of the Privy Council that have stated that: first, removal of magistrates could only be made where there is reasonable cause for such removal after proper inquiry into the matter; and, second, contractual damages are payable for breach of contract but vindicatory damages are also payable to vindicate the constitutional right of the magistrate. The article also considers the relationship between the contractual provisions by which the services of magistrates might be terminated and the provisions of the Constitution relating to removal of magistrates. Additionally, it examines the question of whether short-term and temporary contracts for magistrates are permissible under the Constitution.     

Judicial Supervision of Executive Action in the Commonwealth Caribbean

The following text is taken from the first in a series of lectures in memory of the late Right Honourable Philip Telford Georges. The Right Honourable Mr Justice Michael de la Bastide was invited by the Dean of the Law Faculty, University of the West Indies, to deliver this inaugural lecture in Barbados on 31 March 2006.     

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.     

Developments in judicial protection of human rights in the Commonwealth Caribbean

Judicial protection of fundamental rights in the Commonwealth Caribbean is identifiable in recent decisions in the areas of: vindicatory damages; discrimination and mala fides; proportionality; and the independence of Magistrates. Under vindicatory damages, the courts recognise the need for non‐compensatory damages for breaches of fundamental rights. In the area of discrimination judicial decisions indicate a movement towards the removal of the requirement of proof of mala fides for an allegation of unequal treatment by a public authority. Also of note are the introduction of proportionality and protection against contracting out of Constitutional rights, with regard to magistrates and their tenure.     

Rumble in Paradise: The Caribbean Court of Justice Creating Waves in International Law after British Caribbean Bank v Belize

On 25 June 2013, the Caribbean Court of Justice denied a motion to halt the proceedings of an international arbitration between British Caribbean Bank (BCB) and the Government of Belize, and instead granted BCB the right to continue with the arbitration proceedings. The ruling is particularly important as it sheds light on the anti-arbitration principle – a feature known mostly to Common law – and the still troubled area of expropriation in relation to bilateral investment treaties. In this case comment, I will provide an overview of those main points and assess what implications there are under international law. Specifically, this comment also develops a notion of financial property, and asses under what circumstances financial property can be expropriated in light of bilateral investment treaties. The focus on financial property is to both generate a discussion and also raise more questions on problematic clauses in investment treaties.     

Departmentalization,migration, and the politics of the family in the post-war French Caribbean

This article examines the ways in which metropolitan French officials attempted to deal with the “population problem” in Martinique and Guadeloupe after they became overseas departments (DOMs) of France in 1946. Warning of a demographic crisis in the Antilles, French administrators targeted what they saw as a loose family structure and promoted European family values of Christian marriage and a stable nuclear family. The government justified smaller social subsidies to citizens of the new DOMs by citing the supposedly problematic nature of the Caribbean family and its difference from the French norm. In 1963 the government initiated a wave of emigration to the metropole through an agency called BUMIDOM which was to decrease birth rates in the Antilles and provide much-needed unskilled labor in France itself. Although the impact of emigration on the birthrate is unclear, one lasting legacy of this period was the acute sense of injustice many Antilleans felt at being treated unequally by the state. While birth rates have gone down in the DOMs it had little to do with the acceptance of European family models.     

Departmentalization, migration, and the politics of the family in the post-war French Caribbean

This article examines the ways in which metropolitan French officials attempted to deal with the “population problem” in Martinique and Guadeloupe after they became overseas departments (DOMs) of France in 1946. Warning of a demographic crisis in the Antilles, French administrators targeted what they saw as a loose family structure and promoted European family values of Christian marriage and a stable nuclear family. The government justified smaller social subsidies to citizens of the new DOMs by citing the supposedly problematic nature of the Caribbean family and its difference from the French norm. In 1963 the government initiated a wave of emigration to the metropole through an agency called BUMIDOM which was to decrease birth rates in the Antilles and provide much-needed unskilled labor in France itself. Although the impact of emigration on the birthrate is unclear, one lasting legacy of this period was the acute sense of injustice many Antilleans felt at being treated unequally by the state. While birth rates have gone down in the DOMs it had little to do with the acceptance of European family models.