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.     

Law reform: in the Commonwealth,in small states and in the Caribbean

This paper first outlines the constitutional methods of law reform in the Commonwealth as a whole, in small states like those of the Caribbean, and in the Caribbean itself. It considers possible ways in which small states, which tend to have especially limited human and financial resources, might still be able to make greater use of independent law reform. The possibilities include the establishment of more Law Reform Agencies (LRAs), and greater regional co‐operation in law reform or even a Regional Law Reform Agency (RLRA). In this regard, it raises several issues for consideration, in its concluding paragraphs.     

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.     

Privacy in Commonwealth Caribbean law: emerging trends in the protection of sexual citizenship

This article will explore the three recent judgments of Jovil Williams and Jason Campbell v AG of St. Christopher and Nevis & Chief of Police;¹1 Suit No: NEVHC 2013/0120, Williams J, (Supreme Court of St. Kitts Nevis, 21st March 2016) (unreported).View all notes Caleb Orozco v AG of Belize²2 Claim No. 668 of 2010 (Supreme Court of Belize, 10th August, 2016) (unreported).View all notes and Therese Ho vs Lendl Simmons³3 High Court Claim CV.2014-01949 (Supreme Court of Trinidad and Tobago, 26th October, 2015) (unreported) [32].View all notes which have broken new ground in constitutional law and the law of torts concerning the protection of (the right to) privacy. It is argued that these judgments hold substantial promise towards the making of a meaningful sexual citizenship in the Caribbean; a citizenship which protects the sexual autonomy of citizens and prevents or redresses the invasion or breach of these rights.     

Redressing supremacy: challenging traditional notions of standing in the Commonwealth Caribbean Bills of Rights

The standing requirements under the Constitutions of the Commonwealth Caribbean require an applicant to allege a contravention of the Bills of Rights ‘in relation to him’, so he must be personally affected. This would exclude lesbian, gay, bisexual, transgender and intersex organisations from initiating constitutional challenges for which legal challenge by personally affected individuals are unlikely. This article will explore the scope of the supreme law clause in these constitutions, which provide that the constitution is the supreme law and any law inconsistent with it is void to the extent of its inconsistency, as an interpretative tool for the standing requirement and as a standalone redress clause.     

Priority and rescue financing in the Commonwealth Caribbean: lessons from the United States of America,United Kingdom and European Union

In investigating the operation of the rescue culture in the Commonwealth Caribbean as compared to the United Kingdom administration regime and Chapter 11 of the United States Bankruptcy Code, this paper laments that the Commonwealth Caribbean and the USA fail to consider key issues of post-petition priority for finance. It also delves into a critical, but overlooked, pillar of strong rescue frameworks: access to finance. Taking guidance from the European Union framework on state aid and the UK Funding for Lending and National Loan Guarantee, the author proposes a fair, transparent and efficient framework encompassing state involvement and state-driven private sector engagement.     

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.     

Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office: Victim Status,Extraterritoriality and the Search for Principled Reasoning

In Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office the UK Investigatory Powers Tribunal found that the relevant standard of ‘victim status’ that applies in secret surveillance cases consists in a potential risk of being subjected to surveillance and that the European Convention on Human Rights does not apply to the surveillance of individuals who reside outside of the UK. This note argues that the Tribunal's finding regarding the victim status of the applicants was sound but that the underlying reasoning was not. It concludes that the Tribunal's finding on extraterritoriality is unsatisfactory and that its engagement with the European Court of Human Rights case law on the matter lacked depth. Finally, the note considers the defects of the Human Rights Watch case, and the case law on extraterritoriality more generally, against the backdrop of the place of principled reasoning in human rights adjudication.     

Two steps forward and ten steps backwards: a retreat from shareholder value primacy,stakeholder theory,creditors and directors duties in the Commonwealth Caribbean

Directors’ duties in the Commonwealth Caribbean (CC) were shaped by English law and shareholder value primacy (SVP). Directors’ must act in the best interest of the solvent company for the benefit of its shareholders generally. No direct duty is owed to creditors at common law, save to consider their interests on insolvency. SVP prominence in the CC has yielded to the acceptance of Canadian corporate law and stakeholder theory. Through a comparative analysis of the law in the UK, Germany and Canada, this paper examines the impact of stakeholder theory on directors’ duties in Barbados and Jamaica.     

The Revitalization of Islamic Penal Law: An Examination of Its Opponents

There is an increasing interest today in reestablishing Islamic Penal Law in most Middle East countries. The majority of the population apparently favors this change. There are, however, a minority opposed to such changes. This paper examines how those opposed to reinstituting Islamic Penal Law differ from others based on data gathered from 600 respondents in Kuwait. The findings indicate that those most opposed to such a change are the upper or upper middle class. They apparently are opposed not only to reestablishing Islamic Penal Law but also are less orthodox Muslems. They have had considerable more contact with the Western world but are a small but important minority in their society.     

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.     

The Impact of Socio‐legal Studies in Family Justice: From Oxford to Whitehall

This article introduces a new series reflecting socio‐legal empirical research and its impact both within the academic community and the wider world.