FOUNDATIONS

OF LAW; Brian Alleyne. June 2013. FAITH AND THE LEGAL SYSTEM Divine law comes from an all-knowing, all seeing and inerrant God. Human law comes from sinful, imperfect, fallen man and is inevitably subject to imperfection, even error. The relationship between faith and the legal system involves an appreciation of this inescapable fact and any honest discussion must take this into account. I suppose when Msg. John Lewis asked me to prepare and present this lecture he assumed it would be a simple task because of the range of my life experience, especially my experience in the field of the law. I practised as a Barrister and Solicitor from 1967 to 1979/1980, and for a short period in 1995. I was a legislator (Member of Parliament) from 1979 to 1995, with a short break in the early part of 1980. I was a member of the executive as a Minister of Government from 1979 to 1995 with a short break in 1980. I was a Judge of the Eastern Caribbean Supreme Court from 1995 to 2008, serving as a High Court judge, Appeal Court Judge and acting Chief Justice during that period. I am not sure that profile prepared me for this challenge. However, imprudently, perhaps recklessly, I accepted the challenge and offer my best effort on the topic. I think that any serious analysis of the topic in our context must make a distinction between law in a democratic context and law in a theocracy. I am assuming that we all have a basic understanding of what democratic governance entails. Theocracy is defined in Blacks Law Dictionary as government of a state by those who are believed to be or represent that they are acting under the immediate direction of God or some other
1

divinity. Perhaps the best-known modern examples of theocracy are those States which are governed under Islamic law. Constitutionally, we are not a theocracy, although there are some tendencies even in formally democratic states which seem on occasion to behave like a theocracy. What is more, the preamble to our Constitution declares that The People of Dominica have affirmed that the Commonwealth of Dominica is founded upon principles that acknowledge the supremacy of God. This does not, however, assert that we, or our leaders, are God. I will address the subject on the basis that we are constitutionally a democratic country governed under democratic principles, as firmly asserted in the remainder of the preamble as well as in the substantive provisions of the Constitution. Notwithstanding the vast differences between the polity of the United States and that of Dominica, I have found to be very provocative and helpful a series of questions posed by the U.S. Bishops annual meeting several years ago. The Bishops posed the questions: How do we connect worship on Sunday to work on Monday? How is the Gospel proclaimed not only in the pulpits of our parishes but also in the everyday lives of Catholic people? (In the context of this discussion we should say Christian people.) How does the Church, gathered on the Sabbath, act as the people of God scattered and active every day of the week? These are questions we dont often ask ourselves, but they are fundamental questions regarding the way we live, or fail to live, our Christian mission. Do the demands on us as Christians arising from these questions call us to function as in a theocracy, or do they reinforce the principles of democracy entrenched in our Constitution?
2

Does our faith as a Christian people, (and we are very quick to claim that we are a Christian people), impact our legal system? To address this issue, we should first define our legal system. For the purposes of this discussion I would suggest that our legal system could be considered to comprise our Constitution, our Parliament (legislature), our Executive (Cabinet and public administration), our Judiciary (Court hierarchy; Privy Council and / or Caribbean Court of Justice, Eastern Caribbean Court of Appeal and High Court, and the Magistrates Court), and the legal profession. Our legal system is based on the British and Commonwealth legal tradition. This means that the sources of our law are the Common Law and statute law, as well as International Law. Our history as a former British colony means that most of the foundations of our law, including Common Law principles and our early legislation are based on English law and legal traditions. Dominica fell under British control by conquest in 17591, and its status was settled among the European countries by the treaty of Paris in 1763. The influence of the original settlers, the Caribs or Kalinago people, on our law has been wiped out by the dominance of the European colonisers. Historically, therefore, our legal traditions follow British influences, which persist even today by virtue of our Constitution, which was crafted by our local representatives and the British authorities at a series of Constitutional conferences in the 1960s and 70s. No doubt British standards, based on their own religious and moral traditions, have greatly influenced the foundations of our law and legal traditions. Equally decisive, no doubt, is the fact that our own religious and moral traditions have come down from the British and other European sources, making the Christian faith the dominant faith tradition of our populace. Has that fact had any appreciable influence on the development and evolution of our laws and legal system?
1 Thomas Atwood, History of the Island of Dominica. 3

I have come across a series of questions in a book by a Catholic Priest based in Grenada, Fr. Sean Doggett, titled FIRM IN THE FAITH, that I think illustrates the way in which our faith influences our law. An example: You are shopping in a busy store going through a bin full of cassette tapes. You find one cassette of your favourite rock group. You could easily slip it into your pocket. No sales clerk is anywhere near you. Do you pay for the cassette? (Theft). Fr. Sean postulates that a childish morality is the attitude which tells me someone out there who has power made the rules, and if I dont keep them I will be punished. If I do I will get a reward. A more adult morality tells me I am responsible for my own actions. I have to consider the consequences of my own action. I have to consider the rights of others, the relationships, commitments and moral principles involved and I have to act accordingly. Law in our tradition tends to take the same adult approaches and principles into account. Respect for the rights of others, and our own responsibilities towards others and to society at large are the foundations of many of our laws. To that extent our religious and moral, ethical standards, and thus our faith, strongly influence our laws. However not all law is based on moral, still less explicitly religious or faith based principles. Much modern law is of a social, organisational and economic nature, directed at the structures of society, and the perceived needs of specific sectors, and seeks to regulate these matters in such a way as to address the needs and interests of these sectors. Most important to our legal system is our Constitution, which entrenches certain fundamental human rights. But does this conflict with our religious/moral foundations? I would argue that it does not, but rather that such laws seek to reflect and reinforce our Christian moral principles. Do
4

unto others as you would have them do unto you! Forgiveness and reconciliation as illustrated in the parable of the prodigal son. The responsibility of the citizen to care for those unable to care for themselves, as in the Good Samaritan story. Indeed we are called to be our brothers keeper. Albert Fiadjoe, Professor of Public Law at the University of the West Indies, in his book Commonwealth Caribbean Public Law, points to a definition of public law as All law dealing with relations between an individual and the state or between states, and the organisation of government, i.e., criminal, administrative, constitutional and international law. Alternatively, The part of the law which is concerned with the state in its sovereign capacity, including international law and criminal law. Professor Fiadjoe continues that public law can be more narrowly defined as the combined rules of constitutional and administrative law, focusing on the relationship between the courts and the executive and legislative branches of government. Professor Fiadjoe posits that public law can be perceived as the body of law which deals with the powers and duties of government as such, but more particularly as the area of law which provides protection to the citizen against the enormous power of the state. So public law, and in particular our Constitution, seeks to protect the individual from the tendency of the powerful to abuse its power. Examples of this are found in Chapter 1 of the Constitution under the rubric PROTECTION 0F FUNDAMENTAL RIGHTS AND FREEDOMS. Do these definitions exclude public law from the ambit of morality addressed by religious faith? I would suggest that in truth public law more than other areas of law should be guided and governed by our Christian faith, if we are indeed a Christian nation, as we frequently claim to be. The American Bishops assert that the churchs social mission is advanced by Christians who
5

stand up for the values of the Gospel. This mission is the task of countless Christians living their faith without much fanfare or recognition who are quietly building a better society by their choices and actions day by day. They live the gospel by pursuing justice and peace in their everyday choices and commitments. Can we make a difference by living our faith? The Second Vatican Council declared that It is the special vocation of the laity (you and me) to seek the kingdom of God by engaging in temporal affairs and directing them according to Gods will. They live in the world, in each and every one of the worlds occupations and callings, and in the ordinary circumstances of social and family life which, as it were, form the context of their existence. There they are called by God to contribute to the sanctification of the world within, like leaven, in the spirit of the Gospel, by fulfilling their own particular duties. It has been well-said that the split between the faith which many profess and their daily lives deserves to be counted among the more serious errors of our age. That can certainly be said of many of us in our society. What we proclaim and celebrate on Sunday (or Saturday) and what we live from Monday to Friday have no real connection. We do not practise what we preach. Instead of being instruments of Gods grace and creative power in business and politics, factories and offices, homes and schools, and in the ordinary events of everyday life, we live our lives far-removed from what we proclaim when we go to Church on Sunday. We live what the Second Vatican Council called the split between the faith which (we) profess and (our) daily lives. The law, and in particular statute law under our system of governance, emanates from the political consciousness and from the perceived issues, problems and needs of our society from time to time. It is subject to all kinds
6

of influences, historical realities, conflicting interests, errors and prejudices which are an inescapable part of the human condition. It also exists in an ever-changing, evolving historical environment. What may have been of acute interest and relevance 40 years ago may be of little or no concern today as society has evolved. A good example may be the so-called Dread Act (The Prohibited and Unlawful Societies and Associations Act No. 32 of 1974, repealed by Act No. 10 of 1981), which was considered so necessary and desirable by some, and so offensive by others at the time, and which is barely remembered today. That Act was a response (perhaps, and certainly in my view an excessive and manifestly non-Christian response) to a contemporary situation of that particular historical period. Did it have its basis in faith? The Dreads were an offshoot of a (questionably) religious cult, Rastafarianism. At that particular historical period they took a radical and extreme, confrontational and by all contemporary standards unacceptable stance against the accepted norms of society. Some of them resorted to unprovoked and unacceptable acts of violence, all of which could have been handled by the ordinary criminal law. Instead they were treated as terrorists and legislative measures, in my view highly offensive to our democratic and constitutional traditions and framework, were enacted by the legislature and implemented by the police and Defence Force. To my mind that did little to solve the problem but contributed to additional radicalisation among some youth. We experienced injustice, not only by the Dreads against the citizenry, but by officialdom against many young people who had done nothing worse than wear their hair in a style that is fashionable today among many of our leading academics, fashionable men and women and even politicians. Official attitudes to the Dreads led to serious injustice to many innocent individuals, on the basis only of their preferred hairstyle and their assertion of their right to adopt that decoration.
7

The Dreads sought religious justification for their lifestyle. Officialdom was adamantly intolerant of their choices. Much social conflict, individual and societal suffering, and injustice, resulted from the contending positions. The era of the Dreads was an extreme example of the societal divisions and suffering that can result from extremist attitudes and intolerance on the part of contending groups in society. The Christian attitude of tolerance on the part of both contending parties could have resulted in strengthening our society in so many different ways. Instead, a spirit of intolerance on both sides resulted in social conflict of a magnitude that had not been experienced since the days of slavery. Ironically, what was deemed so offensive and intolerable then is today the height of fashion. Dreadlocks are proudly worn by academics, professionals, fashion models, even politicians, with no negative impact on society. Statute law is the law enacted by Parliament to address particular contemporary issues or perceived concerns. Each Parliament will enact its own legislation in response to the unique situation in the particular jurisdiction, and as perceived at the particular time, although, obviously, in a political environment such as the OECS States, there might be commonalities which attract a unified approach and the enactment of common legislation on a regional basis. A good example is our Supreme Court legislation establishing a single High Court and Court of Appeal to serve our 8 separate national units. That particular institutional arrangement may not be perceived to be influenced by any faith-related considerations, but merely by the geographic/political reality of small states coming together to solve a problem endemic in their physical smallness. However, the structures of the institution, and more clearly the rules and principles by which it is governed, have their foundation and raison dtre in our historical common law

traditions, which themselves can be considered to be offshoots of our Christian faith. THE COURT SYSTEM Our court system is an almost unique institution based on our geographic reality. Our small size and minuscule populations do not permit us to manage individual, separate judicial systems, so we have devised a multinational court system to serve our needs. This multi-level system, with the Magistrates Courts, High Court and Court of Appeal, is organised so as to serve the needs of each state, and of the collection of states (OECS) in a practical and realistic manner given our geographic and population realities. Above this system is the Privy Council, a British institution, and the CCJ, with its original (treaty) jurisdiction, which does presently apply to us, and its appellate jurisdiction, which has not as yet been extended to us. Our courts have, by and large, served us well, although as human institutions they are not without fault, and are frequently criticised, at various levels of society. I well remember one occasion when, as a judge of the Eastern Caribbean Supreme Court I made a courtesy call on a Prime Minister. He put to me the question whether we were not both public officers, and as such owed the same duties arising from public office to the country. Why then did it appear to him that we could apparently never see issues of public concern in the same way? Why could I apparently never agree with him in the respective performance of our public roles. That reflected a fundamental failure on the part of that Prime Minister to appreciate the role of the judiciary vis- a- vis that of the political directorate. That is a legal/constitutional issue of the most fundamental importance, but is also a faith/integrity issue and an example of the attitudes that raise questions about the integrity of our judicial institutions which inhibits our acceptance of the final jurisdiction of our own CCJ and widespread preference for the Privy Council as our final
9

court. I see this as a stark example of the faith/integrity issue that is the subject of our discussion, but in my 13 years on the Court that is the only occasion on which a question of that nature arose. I consider it an aberration that is not commonplace and should not be cited to justify reservations about accepting the final jurisdiction of the CCJ. Although in every human institution there will be weaknesses and failings (it is the human condition), we need to look at the overall picture rather than focusing on individual failures, which will be found in every human situation, in making our decisions on these fundamental issues which are of long term historical and national significance. FINANCIAL ACCOUNTABILITY AND OPENESS One issue of current concern is the issue of accountability and openness in financial dealings with public funds. There have been a number of issues arising in the public domain in this regard. There is long and well established legislation as well as there are established institutional arrangements to deal with this matter. Prominent among these is: The office of the Director of Audit, established by section 83 of the Constitution as an independent and protected office. That office, and the holder thereof, is not subject to the direction or control of any other person or authority (section 83 of the Constitution), must at least once in every year audit and report on the public accounts of Dominica, the accounts of all officers and authorities of the Government, all courts of law including the Court of Appeal or the High Court maintained in Dominica, the Parliamentary Commissioner (Ombudsman) and every other Commission established by the Constitution, and of the Clerk of the House. The Director shall have access to all books, records, returns, reports and other documents which in his opinion relate to any of the accounts being audited. He must submit his report to the
10

Minister of Finance, who shall, not later than 7 days after the House first meets after he has received the report, lay it before the House (Parliament). If the Minister fails to do so, the Director of Audit shall transmit copies to the Speaker, who shall as soon as practicable present them to the House. In regard to his official functions, the Director of Audit shall not be subject to the direction or control of any other person or authority. He has a very important public function, in the exercise of which he has a free hand and is protected from any interference or control. An important adjunct of the Constitution relating to the oversight of public accounts and the financial affairs of the government is the Public Accounts Committee of Parliament, provided for at order 72 of the Standing Orders of the House of Assembly. The duty of the Committee is to examine the accounts showing the appropriation of sums granted by Parliament to meet the public expenditure of the State and such other accounts as may be referred by the House or under any law to the Committee, together with the report of the Director of Audit on any such accounts. Under this mechanism the Minister of Finance and all other persons, including the Financial Secretary, Ministers and Permanent Secretaries can be called to account by this Parliamentary Committee and required to justify expenditures authorised by Parliament and, more importantly, expenditures incurred outside of Parliamentary authorisation. Unfortunately, it appears that this Committee has been non-functional for several years, and may be considered to be defunct and overdue for burial. God forbid! In this connection I feel urged to quote from the book THE OVERSEERS; Public Account Committees and Public Spending, by David G. McGee, QC, The principle of parliamentary control of the public purse is well established among the branches of the CPA. Democracy entails accountability for the exercise of power. Accountability involves constructing appropriate systems
11

that allow decisions to be taken in a context that promotes honesty and productivity. What does this have to do with faith? Our government holds office in trust for the people. We the people have a responsibility to demand accountability on the part of the government. The members of Parliament entrusted with the duties of the Public Accounts Committee have a responsibility to the citizens to oversee and enforce accountability, honesty and probity in the management of public funds. We the citizens are under a duty and responsibility to demand action by all the institutions; the executive government, the oversight mechanism of the Director of Audit, and the Public Accounts Committee, and our representatives in parliament, to ensure the proper and honest, accountable management of our public funds. We are failing to live our Christian faith to the extent that we fail to demand accountability from our public officials. HOMOSEXUALITY A hotly debated topic at this time, which is directly connected to faith issues, relates to criminal sanctions in relation to sex between men. The discussion, unfortunately, seldom if ever refers to the specific statutory provision which defines the crime. The provision can be found in the Offences Against the Person Act, Chap. 10:31 of the Laws of Dominica, at Part 10, Unnatural Offences, section 59; Any person who is convicted of the abominable crime of buggery, committed either with mankind or with any animal, is liable to imprisonment for ten years, and if the Court thinks it fit, the Court may order that the convicted person be admitted to a psychiatric hospital for treatment.
12

The Act does not define the abominable crime of buggery. I resort for a definition to Blacks Law Dictionary Third Pocket edition, which defines buggery as sodomy or bestiality and sodomy as oral or anal copulation between humans, especially those of the same sex. The section is very imprecise, and could incorporate anal sex between a man and his wife, as well as between two men, a man and a woman, and, under the definition which extends to bestiality, a man and an animal. But for the purposes of our discussion, let us limit the offence to anal sex between two men. (I am led to believe that anal sex between a man and a woman is not uncommon and does not attract widespread condemnation, although the statutory prohibition could be interpreted to include that act.) I suggest a distinction must be made, in this case as in others, between immorality and illegality. I need not emphasise the fact that not all immoral acts are illegal, and certainly not all attract criminal sanctions of 10 years imprisonment. I do not doubt that many of those men who argue so vehemently for the preservation of the criminal sanction against buggery engage in buggery with women, or at least do not frown on the practice (which on a strict interpretation may be unlawful and could attract a sentence of 10 years imprisonment). I insist on making a distinction, in this case, between immorality and criminality. Clearly in my opinion, buggery, whether between a man and a woman, a man and another man, or a man and an animal, is immoral. What I question is whether the act between consenting adults in the privacy of the bedroom should be criminalised and whether it should attract a term of imprisonment of up to 10 years. It is perhaps no coincidence that immediately after writing this part of my presentation I was led to read from the Bible Tobit 2: The neighbours mocked me, saying to one another
13

He is still not afraid! Once before he was hunted down for execution because of this very thing; Yet now that he has scarcely escaped, here he is again burying the dead. Perhaps I am not burying the dead but flogging a dead horse! Immorality is a fact of life. It is not to be condoned, especially not by people of faith, but not all immorality attracts criminal sanctions. My question is whether a consensual immoral act of this nature, performed in private (usually in the privacy of a bedroom) should be subjected to criminal sanctions with the possibility of 10 years imprisonment. Should we prosecute a man and a woman who engage in anal sex (the abominable crime of buggery) in the privacy of a bedroom? By the same token, as immoral, even unnatural as it is, should we prosecute the consensual act of two men in the privacy of the bedroom? To say no is not to validate the act; it is to respect the privacy of individuals, while retaining the condemnation of this immoral act, as we condemn all immoral acts. The problem is that we are so tolerant of levels of immorality, even serious immorality, in other areas, even areas which affect the public interest in very serious ways, while vehemently condemning other immoral acts which harm no-one except those who voluntarily engage in the acts. Is that not a distortion of the basic intent of criminal law which, in essence, seeks to punish acts which affect the public welfare, or the involuntary victims of the acts, in contrast to wrongful acts which affect the private interests of individuals?

14

Is our faith a purely private matter between ourselves and God? What is the extent of the demands that our faith makes on us? Does our faith call us to action? Did Christ not set his face like flint and confront the demands of the Father that he confront the evil of the empire and submit to his fate on the cross? Are we called to compromise and cringe in the face of sin and injustice? The legal system is an instrument inspired by God to fulfil His purpose. It is at the same time a human instrument, susceptible to all the imperfections and failings of all human instruments. We are called by our faith to evaluate the legal system and to be Gods hands and feet (He has no hands but our hands, he has no feet but our feet!) his hands and feet in purifying it and fashioning it to Gods will and His way. As with all the challenges of our Christian faith, this will not be easy, but it is what we are called to, as followers of The Way. THE LEGAL PROFESSION Finally, and briefly, I would like to speak about an issue relating to my profession, the legal profession, of which I am proud but in some respects severely disturbed. It used to be referred to as the honourable profession. I fear that in some circles today it is not considered to be either honourable or professional. Too often we hear of dishonourable conduct, in particular intermeddling in clients funds, by members of the profession (one such case is too often). There are other complaints which I need not go into at this time, but the profession is not regulated as it ought to be. Some practitioners carry on in their own merry way, clients complain, but receive no satisfaction. It seems that the conduct of a small minority of practitioners is destroying the reputation of the entire profession.

15

I am not an idealist and I do not expect perfection. I also recognise that in a small community like the legal profession in Dominica, self regulation is difficult. I have to draw attention to the fact that some 20 years ago, a draft Legal Profession Bill was circulated for comment. That Bill made provision for regulation of the profession, including oversight of financial probity on the part of practitioners particularly in relation to monies collected on behalf of and in trust for clients. The Bill was circulated for comment by the profession and others. It has been enacted and is law in most OECS states. For some reason, which cannot be justified, it has not to date been enacted in Dominica. Intermeddling by lawyers in their clients trust funds has been the subject of scandal for some time, but nothing has been done. There is no justification for the present situation. In my view both the profession and the government and Parliament must take the blame for this scandalous situation, which relates not only to financial probity, but generally to regulation of the profession. An issue of faith and the legal system? Clearly in my view it is. So there is much work to be done, by the Church, by Christians and citizens generally, if standards are to be saved from free fall. The legal system demands urgent attention, and we, who call ourselves Christian, from whatever Christian faith tradition, need to address the issues urgently if we hope to continue to live in a society that deserves the description of a Christian society.

16