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.     

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.     

Report of the Law Reform Commission of Tanzania on Congestion in Prisons

Since its formal inauguration in the year 2006, the Caribbean Court of Justice (CCJ) has arguably shown itself to be quite capable of effectively dispensing with its overarching aims of consistency, coherence and legal certainty in the process of adjudication. Indeed, through the adoption of a teleological approach to the construction of the Revised Treaty of Chaguramas, the CCJ has positioned itself as a major operational component in the new Caribbean legal order, serving, as the European Court of Justice as well as several domestic courts have done, to ensure transparency and accountability. The court’s relatively nuanced purpose-driven approach has arguably been the single biggest contributing factor to the region’s quickly evolving ‘indigenous jurisprudence’. Nevertheless, some of the court’s most recent original jurisdiction decisions reveal a growing trend towards judicial restraint. The varying degrees to which the CCJ has adopted a teleological approach to the interpretation of the Revised Treaty of Chaguramas, the concomitant effects of this important development as well as the challenges which invariably arise in this connection are the subject of this article.     

The impact of international human rights norms—a “law undergoing evolution”

Abstract

In this paper, the author outlines the history of, and reasons for, the growing impact of international human rights jurisprudence upon the work of judges in New Zealand, Australia, England and elsewhere in the Commonwealth of Nations. Formerly, international and domestic law were virtually entirely separate. But now, there is increasing legal authority to support the use of international human rights jurisprudence in domestic judicial decision‐making. It can be done in the application of constitutional or statutory provisions reflecting universal principles stated in international treaties. But, according to the Bangalore Principles, it can also be done where there is a gap in the common law or where a local statute is ambiguous. The judge may then fill the gap or resolve the ambiguity by reference to international human rights jurisprudence which will ensure that domestic law conforms, as far as possible, to such principles.

In its decision in Tavita, the New Zealand Court of Appeal declared this to be “a law … undergoing evolution”. The author outlines some of the impediments and problems for the evolution. But he also collects the reasons why it is a natural and inevitable phase of the common law in the current age. He suggests that judges should be aware of the developments. In appropriate cases, they should inform their decisions with relevant international human rights jurisprudence. That will at least ensure that they develop domestic human rights law in a principled way, consistently with international law, and not in an idiosyncratic fashion “discovering” new fundamental rights which may otherwise be criticised as mere judicial invention.     

Peacekeepers Facilitating Human Rights Violations: The Liability of the Dutch State in the Mothers of Srebrenica Cases

This article provides a critical reading of the judgments of The Hague District Court and especially The Hague Court of Appeal in the case of Mothers of Srebrenica v. the State of the Netherlands, which concerned the liability in tort of the Dutch State for facilitating the massacre of Bosnian Muslims in 1995. It engages with the courts’ considerations regarding the attribution of conduct to the State in UN peacekeeping operations, the extraterritorial application of human rights treaties, the State obligation to prevent genocide, and the State’s liability for damages. While not fully agreeing with the courts’ argumentation, the author concludes that the judgments contribute to the refinement of the law and practice of State responsibility in respect of wrongful acts committed in complex multinational peace operations.

     

Gag orders: Shields or swords in the constitutional conflict between fair trial and free press?

In 1976, in Nebraska Press Association v. Stuart, the Supreme Court characterized gag orders as the “most serious and least tolerable infringement on First Amendment rights.”; Yet courts impose gag orders that restrict media coverage of courts and trial participants. Many groups believe the use of gag orders is increasing. However, no previous study has attempted to quantify the frequency of gag orders or to explore judicial attitudes about the issuance of such orders. This analysis of the case law and exploratory survey of judges in Florida suggests that courts issue gag orders to protect fair trials, participant safety and privacy, and the sanctity of the courtroom.

This article also suggests that conflict over gag orders arises because judges disagree about the core meanings of the First and Sixth Amendments. This research indicates that judges' individual interpretations of the Constitution color their determinations of whether indirect gags on trial participants, rather than on the media, are impermissible assaults on the First Amendment or are permissible shields of fair trials. Judges tend to be either First Amendment apostles or Sixth Amendment followers, and Sixth Amendment judges are more likely to impose and uphold gag orders. The authors suggest that this schism is unlikely to be resolved without guidance from the Supreme Court.     

Women in the Nigerian judiciary: considerable headway or organised progress?

ABSTRACT

Women have made considerable progress in terms of their entrance into the legal profession, such that they are advancing towards parity with men on the High Court benches in Nigeria. This study is a product of qualitative empirical data gathered from interviews with judges and information gleaned from government records and personal files of judges in the Archives of the judiciaries in Mid-Western Nigeria. It identifies reasons for the increase in the number of women on the High Court Bench in the area. Women entering the legal professions in Nigeria from the 1930s opted for a career in government legal service and the Magistracy with less financial remuneration but regular work hours, than in private legal practice that provides higher remunerations and irregular work hours. Findings reveal that the number of women judges increased when it became fairly established to tunnel 90% of appointments to the High Court from these channels. The preliminary conclusion therefore, is that, although women lawyers have made considerable headway as High Court judges, the increase in their numbers on the High Court bench was not as a result of any organised policy to increase the number of women judges in Nigeria.     

The highest Dutch courts and the preliminary ruling procedure: Critically obedient interlocutors of the Court of Justice

Little is known about the motives of national courts to request a preliminary ruling from the Court of Justice of the EU (CJEU) or their satisfaction with and implementation of answers. This article aims to fill this empirical gap on the basis of an analysis of judgments complemented with interviews with judges of the highest courts in the Netherlands. This article shows that judges extensively use the procedure and follow its outcome almost without exception, despite some dissatisfaction. This discontent has surprisingly not affected the courts' willingness to refer in future. The findings also downplay the bureaucratic politics and judicial empowerment theses emphasising strategic motives to refer. Instead, legal‐formalist considerations and the desire to contribute to the development of EU law explain most of the references of the Dutch Supreme Court. The decision (not) to refer of the three highest administrative courts is primarily based on practical and pragmatic considerations.     

National Judges,Community Judges: Invitation to a Journey through the Looking‐glass—On the Need for Jurisdictions to Rethink the Inter‐systemic Relations beyond the Hierarchical Principle

The historical conflict between the European Court of Justice (ECJ) and the national constitutional courts regarding primacy is a misunderstanding. In going through the looking‐glass, we can understand that, on the contrary, the ECJ and the national constitutional courts adopt comparable solutions in their treatment of legal pluralism, and that they see the negation of pluralism as essential for the survival of their own legal orders. Therefore, these judges must be offered a new theoretical context to help them reconcile their role as supreme guardian with the taking into account of the pluralist context. Finally, practical proposals must be made to give judges the instruments and techniques that are capable of reflecting this plural structure.     

Golden Accumulator Limited and Coral House Limited v Cayman Islands Monetary Authority

This article undertakes a comparative analysis of the approach in the UK with the Commonwealth Caribbean jurisprudence concerning the doctrine of legitimate expectation. It argues that there is an ad hoc approach of the courts the Commonwealth Caribbean towards their application of the doctrine of legitimate expectation and highlights the need to clearly define the reach of this doctrine.     

Game of courts: A tale of principles and institutions

The ontological, terminological and conceptual confusion that surrounds the concept of ‘general principles of European Union law’ is far from being resolved. The constitutional interlocutors—the Court of Justice of the European Union and the highest courts in Member States—have at times fiercely argued about their different understanding of general principles, whereas European legal scholarship has failed to convincingly clarify the intricacies surrounding this source of law. Instead of engaging with a more abstract, theoretical question of what general principles are, this paper reflects on the practical, functionalist question: how are they used by the Court of Justice and what are some of their functions and implications? To do so, it enquires into contextual, institutional and strategic features of the Court's behaviour and jurisprudence and responses of the highest national judiciaries to this jurisprudence. The aim is to offer an alternative account of the Court's jurisprudence on general principles.     

Durie v Gardiner: Public Libel Law and Stare Non Decisis

This note examines the controversial case of Durie v Gardiner, a recent decision of the Court of Appeal of New Zealand, which radically altered the nation's public libel jurisprudence. It argues that Durie is incorrect as a matter of public libel law for three reasons. First, both Durie judgments failed to engage in freedom of expression theorising. Second, this undertheorising has caused significant confusion in Durie, including misinterpretation of material facts, breakdown of the ‘theory-doctrine’ interface, and a precipitous and unwarranted dismissal of the Court of Appeal's settled public libel principles. Third, owing to these difficulties, the Durie courts were in no position to import a new ‘public interest’ defence from foreign jurisdictions. Above all, by hastening towards wholesale law reform and ignoring its earlier comparative law deliberations, Durie arguably scuppers public libel law's best hope for advancement.     

Judges Taken Too Seriously: Professor Dworkin's Views on Jurisprudence*

Abstract. The author analyses Ronald Dworkin's ideas about legal theory and legal philosophy, with particular regard to metatheoretical and methodological problems. He focuses on the questions of the function and the object of jurisprudence, and on those of the content and method of argumentation of jurisprudence. According to the author, Dworkin's theory is a normative theory, an ideology referred to the judicial practice. Although judges really make law, one can deny that they do. This strategy is the one judges traditionally employ when they say that they are merely applying the law-giver's intentions or fundamental principles that existed long before the case they have to decide. It is that discourse, not rights, that Dworkin takes seriously.     

Clashing conceptions of press duties: Public journalists and the courts

This article bridges the growing, but controversial, public journalism movement with First Amendment jurisprudence and libel law. It examines whether the movement finds support in laws that affect the press and, in particular, in court‐created defenses and privileges that protect journalists in modern defamation law. Do defenses that safeguard journalists in their traditional routines as fact gatherers and reporters also protect them in the kinds of roles and duties envisioned by public journalism advocates? Furthermore, has the United States Supreme Court, in non‐defamation cases involving the First Amendment, expressed concern for protecting what might be called the “public journalism functions” of the press? Does the Court create a different image for the press than the one envisioned by public journalism advocates? This article addresses these questions. It ultimately concludes that public journalists and courts have two very different conceptions about the role that journalists play in a democracy.     

Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?

Does understanding how U.S. Supreme Court justices actually decide cases undermine the institutional legitimacy of the nation's highest court? To the extent that ordinary people recognize that the justices are deciding legal disputes on the basis of their own ideological biases and preferences (legal realism and the attitudinal model), the belief that the justices merely “apply” the law (mechanical jurisprudence and the myth of legality) is difficult to sustain. Although it is easy to see how the legitimacy of the Supreme Court, the most unaccountable of all American political institutions, is nurtured by the view that judicial decisionmaking is discretionless and mechanical, the sources of institutional legitimacy under legal realism are less obvious. Here, we demonstrate, using a nationally representative sample, that the American people understand judicial decisionmaking in realistic terms, that they extend legitimacy to the Supreme Court, and they do so under the belief that judges exercise their discretion in a principled and sincere fashion. Belief in mechanical jurisprudence is therefore not a necessary underpinning of judicial legitimacy; belief in legal realism is not incompatible with legitimacy.     

Employment law

This article attempts to trace the history of the award of ‘vindicatory’ damages under Commonwealth Caribbean constitutions, to determine, first, why the courts were hesitant to grant damages for breach of constitutional rights; second, the circumstances and the principles that informed the decision of the courts to accept that an award of damages was an acceptable form of redress under Commonwealth Caribbean constitutions; third, the manner in which these principles have evolved over the past decades in Commonwealth Caribbean human rights jurisprudence; and fourth, examine the principles that underlie the award of the recently‐coined, ‘vindicatory damages’ for infringements of the Constitution.     

Against the Grain: Therapeutic Judging in a Traditional Family Court

The last several decades have seen a proliferation of specialized courts, including within the family court system, that deviate from the adversarial model, and that rely on therapeutic jurisprudence and other problem‐solving techniques. Whether and how traditional family courts can incorporate the best practices of these specialized courts is a largely understudied area. Drawing from ethnographic observations of a traditional urban family court, this study finds that some judges are able to transform nontherapeutic courtrooms into therapeutic ones despite obstacles. These “against the grain” actors, who act contrary to the institution's dominant norms and practices, demonstrate how therapeutic jurisprudence and other problem‐solving techniques can be utilized in traditional courtrooms.     

The Supreme Court of Canada and the Right to Bargain Collectively: The Implications of the Health Services and Support case in Canada and Beyond

In June 2007, the Supreme Court of Canada expressly overruled20 years of jurisprudence that interpreted the freedom of associationas excluding collective bargaining. This about-face by the SupremeCourt was unexpected. What gave rise to this remarkable decisionand what does it portend for the role of the courts in labourrelations in Canada and beyond? The recent successes beforecourts have led some observers to suggest that it may now bea propitious time for a coordinated and proactive litigationstrategy to vindicate labour's collective rights. This articleoffers some preliminary answers to these broader questions andissues by focussing on the Supreme Court's decision in the HealthServices and Support case.     

Judicial authority through the experiences of crisis

This article is concerned with law’s experiences and making sense of crisis. When we talk about law’s response to crisis, we refer to law not as an abstract set of rules but as an embodied and animated assemblage of relations and practices. This way, law needs to make sense of any crisis to respond to it. The article draws on cultural legal studies to explore the constitution of judicial authority in the context of a democracy in flux. The article relies on fieldwork data collected in the interviews conducted by the author with Lithuanian judges in 2019. Highest in more than two decades, public trust in the judiciary in 2018 indicated a remarkable achievement for Lithuania, a country whose judicial system had been in a state of flux since the end of the Soviet era. However, after an unprecedented and highly mediated judicial corruption scandal in 2019, the rates of public trust plummeted, uncovering complex dynamics between the image of courts, mass media, and the public. Against this backdrop, the article explores how judges make sense of crisis that develops on the intersections of provocative reality judging and formal judicial institutions. It shows how judicial authority is constituted in the conditions of crisis on the tension between law and culture. Emerging from a crisis of authority is the changing face of judging. A post-colonial vantage point and theatrical jurisprudence are used to respond to a development of a desire of power under a mask of rationality, objectivity, and universality. The article concludes by contemplating how this authority shapes our lifeworlds.

     

The joined cases of Dwyer,SpaceNet and VD and SR before the European Court of Justice: The judgments of the Grand Chamber about data retention continue falling on deaf ears in Member States

On 5 April and 20 September 2022, the Grand Chamber of the European Court of Justice rendered three judgments in the cases of Dwyer, SpaceNet and VD and SR. It mainly reiterated its own applicable case law on the retention of and access to traffic and location data. In the VD and SR judgment, the Grand Chamber however expanded its scope to the area of market abuse.Legislation adopted by Member States and decisions rendered by most domestic courts, tribunals and judges do not fully comply with the case law of the Grand Chamber on the retention of and access to traffic and location data. In this particular context, the EU legislature should urgently adopt EU secondary legislation on the retention of personal data to provide legal clarity to all players involved.