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 protection as a case study in personal rights protection in Israeli law

Personality rights, by nature, reflect the culture and values of society. Thus, it is interesting to look back on the road that Israeli law has traveled since the early 1980s, when the right to privacy as such had no trace of protection in Israeli private law, through to the present, when it is protected by both the Protection of Privacy Law and the Basic Law: Human Dignity and Liberty. Current Israeli case law, which shows that the balance between privacy and free speech in cases of publication of private information leans toward privacy, can be partially explained by historical, religious and cultural reasons. The increased privacy litigation in Israel forms part of an ever-growing protection of other personality rights in Israeli law, thus serving as a good example of this expanding trend.     

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.     

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.     

Link law: The emerging law of internet hyperlinks

Although Internet enthusiasts often claim a right of on‐line associations, that is, a right freely to link to other content on the Internet, evolving case law demonstrates that there is no absolute right to associate or link on the Internet. Rather, business law at times imposes limits and penalties on linking. As business grows on the Internet, litigants are likely to use creative theories based on unfair competition and intellectual property law to seek limits on linking. This article examines the first waves of Internet link law cases, how the legal positions have been framed and the principles with which those cases have been resolved. The article reviews the basics of the legal theories used (and likely to be used in the future) to challenge links. The article then reviews key linking cases involving, among other issues, direct links, “framing” and “inlining,” hidden metalinks and contributory infringement through links and mirror sites. The article concludes that, contrary to the original ethos of Internet use, in the era of business use of the Internet, linkages will often be scrutinized and controlled, and sometimes discouraged, litigated or penalized.