Unit One - Module One - 04 - 05

Caribbean Legal Systems
CARIBBEAN EXAMINATION COUNCIL CARIBBEAN ADVANCED PROFICIENCY EXAMINATIONS (CAPE) PUBLIC LAW UNIT 1 MODULE 1: CARIBBEAN LEGAL SYSTEMS
The following was compiled because students undertaking the CAPE Law Unit One E amination are in desperate need of a te tbook!" #ost of the information was culled from $ose%#arie &elle Antoine's outstanding work Commonwealth Caribbean Law and Legal Systems" (owe)er the compiler also used other sources which are acknowledged in the footnotes* students are urged not to ignore them" The compiler paraphrased Antoine's work so as to tailor the compilation + to the needs of Caribbean Ad)anced Proficiency E amination le)el students, the compiler in no way intended to sub-ect Antoine's work to derogatory treatment" The following is not the compilers original work". /LS 0October +1123
A legal system comprises of the body of legal rules, legal institutions and machinery which operate within the particular country or jurisdiction. 4 1. Law5:
There are four popular definitions of Law: . #. $. 4. the legislati!e pronouncement of rules to guide beha!iour" those rules of conduct put in force by legislati!e authority or court decisions, or established by local customs" an institution which is essential to the social nature of man and without which he would be a !ery different creature" and the enforceable body of rules that go!ern society.
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Pl a! CXC" #$%%&!!&$' a ( )(*$$+, The compilation also follows the chronological order of the syllabus, a current copy of which all students are begged to obtain 3 %t follows that students ha!e been pro!ided with the information free of cost 4 Antoine, &. ' ((() Commonwealth Caribbean Law and Legal Systems . *reat +ritain: ,a!endish -ublishing Ltd, p #$ 5 The notes for topic 'i) are ta.en from materials de!eloped for The ,aribbean /0aminations ,ouncil ',1,) '2istance Learning programme) with the assistance of the ,ommonwealth of Learning ',3L) institute. ,opyright 4 #55$ ,1,6,3L #ontego &ay Community College
All of these definitions are rele!ant to an understanding of Law and each definition can be used depending on the conte0t in which the word is used. 7or e0ample 8 definition 94. an enforceable body of rules This statement indicates that !$% -.l ! aLet us consider then, what is a rule. '/$-# a*l a'0 !$% a- '$(.
&ules are normati!e. This means that rules set a standard of how things ought to be, rather than how they are. 7or e0ample, no one should use profane language. &ules may mandate action, they say something must or must not be done and there may be a penalty for disobedience if the rule becomes law and is therefore made enforceable. A good definition of a rule may be the following: a general norm mandating or guiding conduct or actions in a given type of situation. (&) #$'# 1(!" 'a(.- " $-&2&'" -$l " a'0 /.'#(&$'!3
Concepts of law ,oncepts of law are essentially the theories of law. %n order for you to understand the different concepts of law, you must first understand the different theories, as propounded by the different legal philosophers. These different theories go!ern different peoples and societies ali.e. ,oncepts of law also e0tend to different cultural, racial and religious situations. 7or e0ample, %slamic and :udaic Law. %t is worthy that in %slam, the law becomes the religion and thus, the religion becomes the law. Two of the most popular theories of law are natural and positi!e law. ;atural law and -ositi!e law 'a) ;atural law
%n ,al!in /!ersley<s article on Law, &eligion and =orality, at page 4, of the *uyana Law &e!iew, you may wish to consider the definition of ;atural Law, as posited by the legal philosopher, Lloyd who says that 8 natural law is belie!ed to be a rational foundation for moral judgment. Thus, according to /!ersley, natural law can be seen as true law that emanates from a di!ine being. According to many natural lawyers, natural law is directly connected to, or rather shaped by, those religious, moral, or ethical considerations which are inherently apart part of that right reason in agreement with nature as formulated by the early natural philosopher, ,icero.
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7or the purpose of simplification, natural law is percei)ed to be that law which is shaped by a di)ine being and thus pro)ides the guidelines for proper moral beha)iour to be e hibited and practiced by mankind" 'b) -ositi!e law
>ithin the theory of positi!e law is the belief that law has nothing to do with morals or religion but is shaped by certain specifically appro!ed, or accepted procedures for law?ma.ing. According to /!ersely" @elsen Aa positi!istB best epitomises this !iew in the formulation of his pure theory of law. Positi)e law is the law created by the so)ereign and which must be obeyed e)en if and when it is un-ust or repressi)e. Also, it is not acceptable for the citiCen to reject or refuse to obey an unjust law so long as it remains in force, rather it is for the so!ereign itself or -arliament to change the unjust law. Nature of law According to >ollheim, The nature of Law 8 has long perple0ed legal and political philosophers8 the nature or essence of law may be found in the definition of law. The nature of law therefore, may be characteriCed by its rules that see. to create and maintain order in society. %n other words, the nature of law is to be found in its normati!e rule?ma.ing content. The law see.s to create and maintain the conduct desired of society. That is why the law lays down the procedure for doing things and sometimes attaches a penalty for non?performance of a particular act. Origin of law 'a) The /nglish -erspecti!e
+efore the ;orman ,onDuest, which occurred during the th century A.2., /ngland did not possess a unified legal system. 2ifferent areas of the country were go!erned by different systems of law, often adapted from those of the !arious in!aders who had settled there. Thus, the law of /ngland was fragmented and !aried form place to place. The @ing had little control o!er the country as a whole, and there was no effecti!e go!ernment. >hen >illiam, the ,onDueror gained the /nglish throne in 5EE, he established a strong central go!ernment and began, among other things, to standardise the law. /!entually it was decreed that there would be one law common to all of /ngland, hence the name Fcommon law<.
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The ,aribbean -erspecti!e ? &eception
>hen the /uropeans came to the >est %ndies they brought with them their laws which they imposed upon the nati!es, then the sla!es and e!entually upon the indentured ser!ants. The laws that were .nown to the nati!e %ndians, the Africans and the %ndentured Ger!ants were displaced as the /uropeans began to rule them under their transported legal system that was recei!ed into ,aribbean territories. 7or instance, in *uyana, the ,i!il Law Act H ,ap E:5 allows for the reception of the /nglish ,ommon Law in ( I and the retention of some areas of &oman 2utch Law. &eception in the territories listed below is go!erned by: Antigua: The Gupreme ,ourt of :udicature Act, ,ap J The +ahamas: The 2eclaratory Act, I(( +arbados: The Gupreme ,ourt of :udicature Act, ,ap :amaica: The %nterpretation Act, ,ap EK, section $I Trinidad and Tobago: the Gupreme ,ourt of :udicature Act, ,ap 4:5 , section # ,aribbean territories were ruled at different periods in the region<s history by different /uropean nations" for e0ample, the Gpanish, the 7rench, the 2utch and the /nglish. *uyana was ruled by the 7rench and the 2utch, then lastly the /nglish. Trinidad was ruled by the Gpanish, then the /nglish and Gt. Lucia by the 7rench, then the /nglish. As a conseDuence, *uyana and Gt. Lucia ha!e inherited a hybrid legal system. *uyana has certain aspects of &oman 2utch Law that is practiced alongside the /nglish ,ommon law and Gt. Lucia has retained certain aspects of the 7rench ,i!il ,ode that is practiced alongside the /nglish common law. ole and function of law The role and function of law is to bring cohesion to, and maintain order within societies. >illiam, The ,onDueror chose to introduce a single system of law into /ngland because he sought to achie!e unity and cohesion within the legal system of /ngland, thereby, impro!ing it and rendering it more efficient. The more ad!anced and comple0 a society becomes the greater is the need for laws that will regulate human beha!iour if peace and stability are to be maintained. The romantic or utopian !iew of the function of law is that it regulates human beha!iour to achie!e a well?ordered and cohesi!e society. Lowe!er, the true function of the law has often been to regulate the acti!ity of society at large in a manner that produces the effect most desirable for the maintenance of the I, section $ and $I
prosperity and the continued protection of the ruling classes, administration or go!ernment. -rofessor Lart argues:
AthatB 8 the main function of the law is simply to allow human beings to sur!i!e in a community 8 /ach member of society has, more or less, the same physical strength and intelligence, and both our powers of self?restraint and willingness to help others are limited. >e therefore all face the danger of attac. from the others and competition for such resources as are a!ailable 8 The realisation that we are not safe in the world alone and can only be safe in a community if there are rules of self restraint, leads to the de!elopment of such rules, protecting the property and person of others. %t also leads to the idea that obser!ance of the rules must be guaranteed by some .ind of penalty directed at the rule brea.er.
Lart maintains that such rules are the minimum necessary content of law in any society. 7or you to ha!e a complete understanding of this area of your study you should e0amine the contents of ,ommonwealth ,aribbean Legal Gystems" &ose?=arie +elle Antoine, ' ((() at page #, in which she posits:
8 mention is hardly e!er made of the important immoral function which the law in much of the history of the ,ommonwealth ,aribbean.
Ghe continues:
A discussion of the role and functions of law in >est %ndian society should, therefore begin with an appraisal of the role and functions of the law and legal systems in instituting and upholding the systems of sla!ery and colonialism which e0isted 8 throughout the region 8 Law was thus an instrument of social control and public order in plantation society 8 The sla!e laws were the most ubiDuitous form of public control 8 Their primary function was to maintain the sla!e system by guaranteeing the economic, social, and racial subordination of the ;egroes.
The history of the ,aribbean islands reflects that sla!e laws ensured the security of the plantocracy by ensuring to the sla!e master an absolute authority o!er his sla!es. A sla!e was considered chattel. Thus the EI4 law of :amaica described sla!es as goods and chattel. Gla!es were also referred to with reference to their collecti!e weight. 7or e0ample, Fa ton of sla!es<. Legally, a sla!e was barred from owning property and a :amaican law of I e0cluded sla!es from owning almost anything at all, for e0ample, li!estoc. and important agricultural products li.e sugarcane, coffee and cotton. (&&) - la(&$' w&(4 %$-al!" - l&2&$'" a'0 (4&#!. Law R l&2&$' M$-al&(5 a'0 E(4&#! +efore we can consider law<s relationship with morals, religion and ethics we ha!e to loo. more closely at how different schools of :urisprudence define Flaw<.
According to natural law theorists Flaw< is good law. *ood law refers to a minimum moral or ethical content of law. ,icero E belie!ed that natural law is related to the refle0 of human beings to resort to an internal source and process of rationality when a situation demands a resolution. ,icero, in defining true law as rights reason in agreement with nature I ob!iously logically allowed for the possibility that positi!e or human laws might not accord with true law because such laws might not be based on right reason 'or put another way such laws might not be informed by good and sufficient reasons) consistent with the rationale 'or moral) order of nature. J ;atural law is !iewed as the foundation of moral judgment. +ecause the rules that go!ern our good conduct are connected with basic truths about human nature. 7or e0ample most people can .ill a .itten with no effort because we are stronger H but most of us don<t. The reason is we .now that such an act would be morally depra!ed. Miews about the e0act nature of natural law ha!e !aried o!er the ages, but there has been one constant. That is, there are some principles which are go!erned by the nature of the uni!erse and which are discernable by reason. ;atural lawyers accept that natural law principles do not always ha!e the effect that they would li.e them to ha!e but they argue that the principles remain true e!en if they are ignored, misunderstood, abused in practice, or defied in practical thin.ing. An appropriate analogy are mathematical a0ioms which hold good e!en when misunderstood or undisco!ered.( Therefore law is shaped by religious, moral or ethical considerations, which are apart of Fthe reason that is in accordance with nature<. Low do we .now if a particular human or positi!e law is true natural lawN 7or instance in the abortion debate, the right to life and the right to pri!acy or freedom of choice, can both be considered as natural law rights. /!ersely proposes that the right answer is consistent with the right reason in agreement with nature 5, must lie in proper limitations of one or both of these two great natural law rights. >hat does Fright reason in agreement with nature< meanN As far as religion is concerned it seems that natural lawyers especially those who belie!e in the
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,icero, =arcus Tullius ' 5E H 4$ +,) &oman orator and statesman. Le was one of the most influential authors in Latin literature 7 ,icero<s 2e &e -ublica as Duoted in 7reeman<s Lloyds %ntroduction to :urisprudence 'E th ed., ((4) pp $5 ? $ 8 /!ersley, ,. Law $eligion and #orality A (((B *uy L. &. $, p 4 9 7reeman, =. '/ds.). ' ((4) Lloyds %ntroduction to :urisprudence E TL /dition. *reat +ritain: Gweet O =a0well, p J5 10 4bid 7ootnote 4 ',icero) 11 Op cit, /!ersley, p 4 #ontego &ay Community College
di!ine, belie!e that there is a pre?e0isting moral order that go!erns rationality and materiality. The positivist approach The -ositi!ist Gchool of law defines Flaw< without reference to subjecti!e considerations such as morals, ideology, religion etc. Go law is defined with regard to how it was formulated. That is, by conforming to appro!ed and specific law ma.ing procedure. %t is also hereby submitted that these specifically appro!ed or accepted procedure for lawma.ing must also include logically prior established rules which identify and legitimise the lawma.er or so!ereign. %f the latter were not the case, then the edict of the despot or dictator would, from this positi!ist perspecti!e, be on the same footing as positi!ist laws !alidly enacted by a lawful so!ereign or democratically elected -arliament. # The essence of the positi!ist approach refers to law that is not informed by what some or e!en most people consider unreligious, unjust or immoral. %n the !iew of the positi!ist scholar Flaw< is law simply 8 because a legitimate so!ereign or lawma.er posited or put forth these rules in accordance with legally appro!ed lawma.ing procedures. $ This does not mean that positi!ists do not thin. of morality religion and justice, they do, but in other non?legal areas. %t is just that positi!ists do not thin. elements such as morality should not define law because then it loses its< clarity and definiteness. 8 it seems clear that the factor which determines whether one belie!es that there is a necessary connection between law and morals turns upon how one chooses to define law. This choice in turn is not moti!ated by moral or non?legal considerations. 4 /!ersley defines law from a natural law perspecti!e because he rejects laws, which is e!il or unjust by reasonable standards of decency. K !aws normativity Law<s inherent normati!ity refers to an alleged conceptual connection between Flegal duty< and Fought<. %f you say there is a legal duty to do something, it is part of the meaning of what you say that, in some sense of Fought< the Fthing< ought to be done. E The point being made here is that the argument that there e0ists a moral duty to obey law, howe!er described, is further reinforced by the concession of natural lawyers that e!en human laws which contra!ene principles of natural law ought
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Op cit, /!ersley, p K 4bid 14 4bid 15 Op cit, /!ersley, ( 16 Larris, Legal -hilosophies, '#nd ed, ((I) p K#$ #ontego &ay Community College
to be obeyed Fto a!oid scandal<. Thus there must be something in the nature of law which would compel obedience e!en if terms might be positi!ely unjust. I The relationship of religion to law and morality There are some who see religion, law and morality, as one indi!isible whole with religion, where it represents a true e0pression of di!ine will, being the foundation of them all. To the natural lawyer who belie!es that di!ine will is the basis of all good law 'natural or positi!e), there e0ists no !alidly logical distinction between religion, on the one hand, and law and morality on the other hand. Legal -ositi!ism admits of no such logical connection, either in a causati!e or imputati!e sense. &eligion is an irrele!ant criterion to the positi!ist lawyer when it comes to defining law. J %t is only since modern times that men ha!e regarded law as man?made and therefore to be judges on human terms. +efore then law, morality and religion formed a coherent whole. "slamic #urisprudence =c,oubrey and >hite ha!e stated, 8 the matter of di!ine origin is fundamental to %slamic jurisprudence. ( Thus, the authority of an %slamic *o!ernment to ma.e laws of go!ernance can only be legitimately be found upon the holy law. #5 This means that any laws enacted by an %slamic *o!ernment which conflict with %slamic law are considered to be irreligious and de!oid of legitimacy. # ;onetheless, any parallel with natural law theory brea.s down at this point since human laws in the %slamic conte0t are not e!aluated or tested by reference to the moral criteria inherent in %slamic law for the purpose of determining their !alidity and entitlement to obedience.## 3n this issue, =c,oubrey and >hite opine that: 't)he moral criteria which are an essential part of %slamic :urisprudence are not used as means of e!aluation of positi!e legal norms, because from s strict point of !iew Flegislation< has no authority independent of the shariah in the first place.#$ A law, which contra!enes %slamic law, is not law because it has no legitimate moral authority. elationship of universal$ morality and differing religions The Duestion posed here is a common or uni!ersal morality which pre?e0ists all religionsN %n essence, this mode is inherent in natural law theory which posits the !iew of a uni!ersal moral order go!erning all man.ind. %mplicit in this claim that all man.ind is go!erned by this uni!ersal order is the logical inference that religious barriers are transcended by a common allegiance to a certain core of
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Op cit, /!ersley, p #$ Op cit, /!ersley, p #I 19 Te0tboo. on :urisprudence '#nd ed, ((E) p 5K 20 4bid 21 4bid, p 5I 22 4bid 23 Op cit, /!ersely, pp #( ? $5 #ontego &ay Community College
uni!ersal norms or moral !alues. 7or instance, all legal systems, irrespecti!e of religious persuasions, embrace some notion of respect for human life. =ore o!er, it is clear that the moral principle proclaimed through =oses in the Ten ,ommandments find e0pression in !arious forms in differing legal and religious systems.#4 %ree will in relation to law$ religion and morality The genius of the concepts of free will lies in its ability to find e0pression and continuity in widely !arying legal and religious systems. That *od ga!e us free will or the will to be free seems to me to be a fundamental natural law principle. %t finds its best e0pression in the highest ideals in democracy" and e!en in totalitarian systems this free will, though suppressed for a time, e!entually bursts forth as people e0ercise their innate or inalienable right to freely choose how they li!e and are go!erned. This principle of free will is therefore both uni!ersal and rational. %t is uni!ersal because it is inherently recognised and accepted by all men e!erywhere. % .now of no man who truly desires not to ha!e the right to be free. %t is rational because no truly rational human being desires not to be free of oppression or e!en bene!olent go!ernance. >e loathe the former and suffer the latter as a necessary e!il.#K Conclusion %t is clear from the foregoing discussion that, certainly in so far as the natural lawyer is concerned, law is not just a bloodless category, but is rather intimately connected to issues of religion, morality and other non?legal phenomena. #E 6. (&) C$'# 1(! $/ (4 14-a! 7!$.-# ! $/ law8: /$#.! $' (4 l 2al !$.-# ! $/ law" (4a( &!" (4 C$'!(&(.(&$'" l 2&!la(&$' 9 1-&%a-5 a'0 !.*!&0&a-5 9 a'0 &'( -1- (a(&$' (4 - $' *5 (4 C$.-(!3 I'(-$0.#(&$' ($ S$.-# ! $/ Law Gource of law means the origin or basis of law. %n the ,ommonwealth ,aribbean, the law and legal systems originate from the Pnited @ingdom 'P@) and its common law and legal heritage. The basis of law in the /nglish ,aribbean is the /nglish common law. Lowe!er, the origin of law and legal systems in the ,ommonwealth ,aribbean is nor only that which emanated from the P@, but also includes law and legal systems actually created within the region. #I %n any particular legal system, there are se!eral types of sources. These include: 'a)
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legal sources"
4bid, p $4 Op cit, /!ersley, p $E 26 4bid, p $J 27 Op cit, Antoine, p I$ #ontego &ay Community College
'b) 'c)
literary sources" and historical sources.
3f all three, legal sources are studied more closely, because they shape and inform the particular legal system more than other sources of law. !iterary sources of law The term Fliterary sources of law< describes the location of the law. /0amples of this source of law are: i. ii. iii. i!. boo.s" legal treaties" law reports" or legislation.
Literary sources of law tell us what the law is. They do not confer legitimacy on rules of conduct or social arrangements. &istorical sources of law <Listorical sources of law< refers to the causati!e factors behind a rule of law, its historical origin and de!elopment.#J 7or e0ample the law of the ,ommonwealth ,aribbean is deri!ed directly from our colonial past. The source of our law is the process under colonisation that led to /nglish Gtatute, the common law and eDuity being transplanted to the ,aribbean under the doctrine of the reception of law. %n /ngland, the source of that country<s law is its< customs. %t may be argued, ...that the historical source of law is particularly important in the ,ommonwealth ,aribbean conte0t, for our legal sources are intimately lin.ed with the historical e0perience of colonisation and plantation societies. #( There is a !ery strong direct interrelationship between the ,ommonwealth ,aribbean legal sources and our historical sources. The attitude of the judiciary and legislature, the character and operation of legal institutions all still reflect the colonial e0perience. 7or e0ample, colonial Acts still remain on the statute boo.s H ta.e for instance the !agrancy law. !egal sources' Legal sources of law form the basis of the law<s !alidity. %n other words legal sources gi!e law its authority. The identification of a legal source occurs after the process by which rules of conduct acDuire the character of law, becoming objecti!ely definite, uniform and compulsory. $5
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Op cit, Antoine, p I$ 4bid $5 Q Gtudents should ensure that they come to grips with this topic. Op cit, Antoine, p I4 #ontego &ay Community College
The following are legal sources of law in the ,ommonwealth ,aribbean: 'a) 'b) 'c) 'd) 'e) 'f) the constitution" legislation" the common law and judicial precedent" custom" international law and the laws of regional treaties" and eDuity.
%n the ,ommonwealth ,aribbean international law was not traditionally a source of law. +ut it is becoming more important as a source which gi!es laws in the region<s jurisdictions !alidity and authority. This is particularly rele!ant to labour law and the law of human rights. T4 W-&(( ' C$'!(&(.(&$' a! a L 2al S$.-# The importance of the constitution The written constitution is thought to be the most important legal source in the ,ommonwealth ,aribbean. There are two reasons for this. . The constitution represents an indigenous source of law. %t symbolises the region<s brea. from colonialism, for the constitutions of the ,aribbean were written when we were no longer colonies. %t is therefore a manifestation of the political will of our people. The constitution is also a !ery important legal source because it adheres to the theory of constitutional supremacy in the region. +efore the theory of constitutional supremacy, the ,ommonwealth ,aribbean obser!ed the doctrine of -arliamentary so!ereignty. This is also a doctrine characteristic of the P@. >hile in form the constitution is an e0ample of legislation, another legal source, it must be distinguished from ordinary legislation because of its< important philosophical orientation and authority.
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The constitution can be defined as a body of law containing the rules which determine the direction of the Gtate, including the manner in which the Gtate is organised and the body of fundamental principles according to which the Gtate is go!erned. $ The constitution legitimises law. %t is the base from which the rule of law originates and deri!es its authority or !alidity. All norms of society stem from the constitution. The constitution may be !iewed as the parent law, for all other
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Op cit, Antoine, p IK
laws are measured against it H it is the supreme law of the land. %n Collymore )" A5.+ it was said:$$
6o one* not e)en Parliament can disobey the Constitution with impunity"
Therefore the constitution is also a source of power, because it tells us 'citiCens) what our rights are, it also molds the shape of both the legal system and the political system. 7or e0ample the principle of democracy can be found in the constitutions of democratic countries. The constitution lays down mandatory procedures for go!ernment, is the foundation for judicial re!iew, states basic human rights and a!enues for redress of !iolations of such rights and promulgates new remedies. $4 The following is a list of other functions of the constitution in the ,ommonwealth ,aribbean: . #. $. 4. Gtate institutions H their creation and establishment as well as the distribution of the function of the Gtate" *rants authority the ma.e laws" 2efines Gtate territory" and *i!es the Gtate legitimacy through the e0istence of an independent body of laws, which regulate the Gtate.
+ut the most popular and important function of the constitution is its< role in defining and protecting fundamental human rights. The constitution also acts as a yardstic. to measure the !alidity and authority of laws in general. %t also super!ises the use of power or authority in the Gtate. %t is worth noting that a constitution can be unwritten as is the case in /ngland. +ut this state of affairs is not without problems. This aside, it should be noted that +ritain<s constitution is different, because in +ritain, -arliament is supreme. %t is does not conform to the ideal of constitutional supremacy as ,ommonwealth ,aribbean countries do. 7or instance the preamble of the ,onstitution of +arbados states"
The Constitution is the supreme law of &arbados and* sub-ect to the pro)isions of this constitution* if any other law is inconsistent with this Constitution* this Constitution shall pre)ail and the other law shall* to the e tent of the inconsistency be )oid"
The sentiment is the same in the :amaican ,onstitution, which states:

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A (EIB # >%& K 4bid, p E 34 Op cit, Antoine, p IE #ontego &ay Community College
Sub-ect to the pro)isions of sections 27 and 81 of the Constitution* if nay other law is in consistent with the Constitution* this Constitution shall pre)ail and the other law shall* to the e tent of the inconsistency* be )oid".8
%orm and structure of the constitution The typical constitution in the region contains the following sections: 'a) 'b) 'c) 'd) 'e) 'f) 'g) 'h) A preamble 'e0cept :amaica<s)" chapters on citiCenship" a section on fundamental rights and freedoms, called a +ill of &ights" chapters defining the powers of the Lead of Gtate and -arliament" chapters defining the powers and establishment of the e0ecuti!e and judicature" chapters establishing and defining the role and functions of the -ublic Ger!ice and :udicial ,ommissions" chapters on finance" in addition, there is a statutory formula gi!ing -arliament power Fto ma.e laws for peace, order and good go!ernment<. .9
The protection of fundamental rights ( a dynamic legal source) %nternational sources of law ha!e had an impact on the legal systems of the ,ommonwealth ,aribbean. This is e!ident in the +ill of &ights of the region<s institutions. They reflect international concerns for fundamental human rights. 7or e0ample the rights accorded are all embodied in international instruments such as the /uropean ,on!ention on Luman &ights and the American ,on!ention on Luman &ights. Las the written constitutions of the ,ommonwealth ,aribbean created new rights or ha!e they codified rights that already e0isted in the common lawN Gome people feel that the constitutions merely codify e0isting common law. 3ne reason for this is the e0istence of the phenomenon of Fsa!ing law clauses< in some of the constitutions such as :amaica<s. These clauses preser!e e0isting law or pre? independence common law. +ut doing this jeopardises the human rights pro!isions of the constitution. 7or e0ample in 6asralla )" /PP.:, the -ri!y ,ouncil declared that the fundamental rights which were enshrined in the new :amaican ,onstitution were
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Gecond Gchedule ,hapter Op cit, Antoine, p II 37 A (EIB # A, #$J, -,
? -reliminary s.#'#)
Falready secured to the people of :amaica<.$J The court found that the rights and freedoms found in the ,onstitution were subject to Fe0isting law< or sa!ed common law. This meant that the constitutional rights protected were only those, which e0isted before the ad!ent of the written ,onstitution. This pitted common law against the written constitutional guarantees of fundamental rights. The courts ha!e often written judgments fa!ouring common law and restricting the constitution. Ta.e for instance the case of $obinson )" $.7. The opinion from :amaica emanated from the Pnited ;ations Luman &ights ,ommittee. The case illustrated the conflict between e0isting law and our +ill of &ights. The plaintiff lost his case all the way up to the -ri!y ,ouncil. The case in!ol!ed an argument that his right to a fair hearing was !iolated when his murder trial was forced to proceed without an attorney. The Pnited ;ations Luman &ights ,ommittee, in rejecting a restricti!e !iew of the ,onstitution, found that this was a !iolation of his rights to a fair hearing, although the common law position is that there is no right to legal counsel. Although the case did not specifically refer to a sa!ing law clause, the underlying issue, that is the creation of new constitutional rights, not hitherto contained under the common law, was addressed.45 There were similar arguments in Collymore )" A52!. >ooding ,: did state that the constitution was supreme law, but he still found that the constitutional pro!isions protecting trade union rights 4# did not include the right to stri.e. This was justified on the grounds that at common law, there was no right to stri.e. ,onseDuently ,ommonwealth ,aribbean constitutions ha!e been interpreted as codifying e0isting common law. %t is not !iewed as creating new legal rights. The constitutions ha!e been restricted in other ways. 7or instance the introductory clauses of constitutions ha!e gi!en rise to litigation. %ntroductory clauses declare rights such as freedom from discrimination on the grounds of se0. The problem arises because the constitution then goes on to guarantee redress for !iolations under other sections. %t has been argued that only those rights, which are specifically mentioned, should be protected. Therefore if the right is only mentioned in the introductory clause, it may be interpreted as non?justiciable or non?enforceable. 7or instance in 5irard and the St" Lucia Teachers Union )" A52., the court found that no redress was a!ailable for a lac. of eDuality on the ground of se0 as it was not mentioned, e0cept in the introductory clause.44
38 39
p #4I, per Lord 2e!lin Pnited ;ations Luman &ights ,ommittee ,ommunications ;o. ##$6 (JI, decided (J( 40 Op cit, Antoine, p IJ 41 4bid* p # 42 The rights to form and join a trade union and freedom of assembly. 43 Pnreported :udgment ; o $I of (JK, decided I 2ecember (JE, Gt. Lucia 44 Op cit, Antoine, p I( #ontego &ay Community College
+ut it seems as though ,aribbean courts are mo!ing away from this restricti!e attitude to the potential of the constitution, in order to create and protect new rights. Ta.e for e0ample the case of #ahara- )" A5 of Trinidad and Tobago28. %n this case a new remedy in damages for !iolations of human rights was held to ha!e been created by the constitution. 4E Again in Thornhill )" A52:, the constitutional right to retain council was successfully promulgated. And !ery recently in (( , The ,onstitution of Trinidad and Tobago was generously interpreted to uphold the rights to retain the attorney of one<s choice without delay.4J The grounding principle in these pro?right cases is that a constitution is a uniDue instrument which must be interpreted in light of the ideals and principles which ground it. The courts should thus gi!e life to the meaning of the constitution by interpreting it in a broad and purposi!e manner. The underlying presumption of such instruments is that the Gtate, through its legislature, intends to secure the broadest spectrum of rights to its citiCens.4( The interpretation of the Thornhill case was !ery purposi!e. %n #inistry of (ome Affairs )" ;isher81 the need for purpose and generous interpretation was supported. %t is one of the reasons therefore that Pratt and #organ8! is so famous. The case is an illustration of the generous interpretation of a constitution. The general constitutional protection against cruel and inhuman punishment found in all ,ommonwealth ,aribbean constitutions was interpreted to include the situation where a con!icted person on death row suffered undue delay.K# ,onstitutions ha!e an e!olutionary and a norm?building character. This is e!ident in the case of (obbs et al )" $8.. Lere, the ,ourt of Appeal spo.e of the Fe!ol!ing standards of decency< and the Fnew sensiti!ities which emerge as ci!iliCation ad!ances< which should be reflected in the interpretation of written constitutions. At the base of the argument is the fact that the constitution as a legal source is not static, but must constantly e!ol!e so as to measure up to appropriate standards of human rights and other societal !alues. %t is, as such, a dynamic and fle0ible legal source. K4
45 46
A (IJB # All /& EI5 Op cit, Antoine, p J5 47 A (J B A, E , -, 48 A (J B A, E , 49 Op cit, Antoine, p J5 50 A (J5B A, $ ( 51 A (($B 4$ >%& $45 52 Op cit, Antoine, p J5 53 A ((4B ,L+ 4K 54 Op cit, Antoine, p J #ontego &ay Community College
This case is re!olutionary, because the -ri!y ,ouncil o!erruled a pre!ious decisionKK and a series of related decisions, and affirmed the dynamism of the written constitution as a source of law. There has, therefore, been a steady progression toward a de!elopment of a more purposi!e construction of ,ommonwealth ,aribbean constitutions in relation to the +ill of &ights. >hat be called the modern principle of constitutional interpretation of human rights pro!isions is that a liberal interpretati!e techniDue which encompasses the purposes and ideals of the constitutional instrument should be employed. This interpretati!e techniDue is in line with those from international human rights con!entions. ,ommonwealth ,aribbean courts seem poised to ma.e the constitutional protection of human rights e!en more elastic, e!en in contentious areas, such as capital punishment. %n ;isher )" A5 of the &ahamasKE, Lord Gteyn noted that the death row litigation was Fin transition<, and that just as the principle on undue delay had e!ol!ed to find such delays unconstitutional, it might further e0pand to include pre?trial delay.KI *eparation of powers The principle of the separation of powers is embodied in the constitution. The separation of powers is important to the administration of justice in the legal system. %t secures the independence of judges and pro!ides that they are impartial and separate from political interference from the political arm of the go!ernment, so as to administer justice impartially. 3nly the judiciary and the courts can e0ercise the judicial function. The cases of ;arrell )" A58< and (inds )" $87, confirm this. %n (inds it was held that an attempt to establish a *un ,ourt, without it being properly constituted as a court of law, was unconstitutional. %t was unconstitutional because only the judiciary and the courts ha!e the right to e0ercise the judicial function. %n (inds the :amaican -arliament had wanted to establish a *un ,ourt. They wanted to gi!e resident magistrates powers of jurisdiction, which the constitution reser!es for Gupreme ,ourt :udges. The power of sentence was to be gi!en to a re!iew board instead of a court. The ,ourt of Appeal decision was o!erturned by the -ri!y ,ouncil who held, that the creation of a *un ,ourt was a !iolation of the separation of powers doctrine enshrined in the constitution. The -ri!y ,ouncil also pointed out that ,ommonwealth ,aribbean constitutions:
55 56
$iley )" A5 A (J$B A, I (, -, 'Pnreported -, Appeal ;o K$ of ((I, decided # 2ecember ((I, the +ahamas) 57 Op cit, Antoine, p J 58 ' (I() #I >%& $II 59 A (IEB All /& $K$" A (IIB A, (K #ontego &ay Community College
= embody what is in substance an agreement reached between representati)es of the )arious shades of political opinion in the State* as to the structure and organisation of go)ernment through which the plentitude of the so)ereign power of the State is to be e ercised in the future"91
The -ri!y ,ouncil also found that new constitutions are e!olutionary, not re!olutionary. %n other words they are grounded in basic concepts of the common law, separation of powers and the independence of judiciary, etc ,onstitutional pro!isions secure security of tenure for judges. %ndependence of the judiciary is further ensured because the :udicial ,ommission, which was established for that reason, handles appointment and remo!al of judges. +ills of &ights in the ,ommonwealth ,aribbean constitution thus Fimpose a fetter on the e0ercise by the legislature, e0ecuti!e and judiciary of the plentitude of their respecti!e powers<. This is the F>estminster model< of go!ernment. E +ntrenchment of constitutional provisions The practical entrenchment is that certain constitutional pro!isions cannot be altered e0cept by referendum or by a special majority of -arliament. All the constitutions of the ,ommonwealth ,aribbean contain pro!isions for entrenchment. This shows that the constitution is in a different and more precious category than that of ordinary legislation. /ntrenchment operates to pre!ent -arliament from interfering with fundamental constitutional rights. The case of Smith et al )" &ahamas (otel Union9+ e0plains:
Parliament cannot by legislation interfere so as to affect the fundamental rights entrenched by the Constitution without complying with the re>uirement of the Constitution =
The court in Linds shared the same sentiments, adding that entrenchment protected pro!isions, which were important safeguards, ensuring that they would not be altered 8 without mature consideration by the -arliament and the consent of a larger proportion of its members than the bare majority reDuired for ordinary laws.R ,easuring the validity of other laws and legal sources ,ommonwealth ,aribbean constitutions also contribute to the de!elopment law by testing the !alidity of other law and legal sources. %t therefore be said to be the basis of the rule of law. The testing and measuring of other laws and legal sources is carried out by judicial re!iew.
60 61
A (IIB A, (K, p # # Op cit, Antoine, p J# 62 Guit ;o 5K of (JK, Ligh ,ourt, the +ahamas #ontego &ay Community College
:udicial re!iew determines the !alidity of ordinary legislation. Legislation is measured against constitutional norms. %f the legislation offends the norms it will be declared unconstitutional or ultra )ires. %f legislation conforms to the constitution it is said to be intra )ires. %f legislation is ultra )ires it will be declared null and !oid and will be struc. from the boo.s. Thus as Antoine asserts, the constitution presents a formidable challenge to legislation.9. 7or e0ample in Collymore, the basis of the challenge was that the %ndustrial Gtabilisation Act was ultra )ires the Trinidad and Tobago ,onstitution because it !iolated the right to stri.e. Lowe!er they were unsuccessful. The validation of other legal sources The constitution also !alidates other legal sources in a sense other than the ultra )ires concept discussed abo!e. Gince it gi!es -arliament and the legislature the authority to ma.e law, legislation ultimately owes its legitimacy to the constitution. Gimilarly, the power gi!en to the Gtate to sign international treaties is found in the constitution, hence the legal source of international law can be said to be !alidated by the constitution. /!en the authority gi!en to the common law in independent ,ommonwealth ,aribbean nations can be traced to the constitution as it sa!es the common law, declaring it to be the applicable law in the legal system. The constitution is thus of prime importance in defining and shaping legal sources and ultimately, the legal system in the region. 92 +conomic$ social and cultural rights The e0tent to which rights are categorised as economic, social or cultural rights '/,3;G3,) are justiciable or enforceable is an area of contro!ersy in the area of constitutional law. These rights maybe enshrined in a constitution or international human rights instrument, for instance the right to form a trade union. These rights relate to the collecti!e and this ma.es them uniDue, because they are not laws that affect the indi!idual only. /,3;G3, rights ha!e an economic, social and cultural impact, e0amples of similar rights is the right to education and to self?determination. The justiciability of these rights ha!e been inconsistently applied in the ,aribbean. %n A5 )" #ohammed Ali98 it was held that rights such as the trade unions right to consultation could be enforced. +ut generally these rights are difficult to enforce in the ,aribbean. This is particularly the case in labour law. The reason for this is that labour law tends to be formulated in the collecti!e, for
63 64
Op cit, Antoine, p J$ Op cit, Antoine, p J4 65 A (J(B L&, ',onst) 4I4 #ontego &ay Community College
e0ample the right to pay, the right to collecti!e bargaining etc. %n :amaica, the right to collecti!e bargaining was denied. 99 L 2&!la(&$' a! a S$.-# $/ Law The importance of legislation This source of law is important in the ,ommonwealth ,aribbean. %t is becoming e!en more important because law is being codified more and more in the common law world H including the ,aribbean. Although the constitution is considered as a separate source of law it is strictly spea.ing part of the legislati!e process in the ,ommonwealth ,aribbean. +ut it is so significant it is discussed separately. Legislation is a legal source that has its roots in the past. %t is ancient" it is older than >estern ci!iliCation 9:. The nature and role of legislation Legislation is defined as 8 the body of legal rules, which emanates from the deliberate law ma.ing function of the legitimate authority of the state. 9< Legislation is therefore deliberately made. This is the reason it is different from custom. ,ustom simply grows or de!elops through time, it has no draftsman. Also legislation is written, custom subsists in conduct. -arliament has the authority to draft legislation. This authority is conferred by the constitution. -arliament can also delegate this responsibility to other functionaries and authorities. The doctrine of separation of powers also authorises go!ernments to ma.e legislation. Thus the lawma.ing pattern seems to be the following. /Duity and common law produces legal principles. %n turn, those legal principles are embodied in detail in statutes. Therefore as far as codification is concerned common law has contributed greatly to its de!elopment. %t has also contributed to the definition of the jurisdiction of the courts. The doctrine of precedents limits common law and eDuity. This is the reason legislation differs from them. Legislation is creati!e. ,ommon law and eDuity ha!e no choice but to build on e0isting legal principles and by manipulating case law. Legislation binds itself to radical and new principles of law" it does not ha!e to refer to pre?e0isting principles. Also unli.e common law and eDuity it can be repealed outright. Legislation is therefore the most efficient and the best tool for law reform. 7or this reason it may be, more con!enient for ,ommonwealth ,aribbean jurisdictions to turn to legislation rather than the common law and precedent to de!elop a more ,aribbean law. 97
66 67
&anton )" Alcoa #ineral of ?amaica ' (I ) I >%& #IK Antoine cites the ,ode of =anu which predates the &oman and *ree. ci!iliCations. The ,ode of =anu go!erns the social and religious laws of Linduism. 68 Op cit, Antoine, p EJ 69 Op cit, Antoine, p E( #ontego &ay Community College
,hange and inno!ation in countries are wrought by legislation. >e will see that in the future as the ,ommonwealth ,aribbean mo!es farther away from the /nglish Legal Gystem. %t will ha!e to be used to re!erse the alienation of /nglish laws and customs to allow the law to reflect the goals and aspirations of >est %ndian society.:1 Legislation is its own legal source. This is one other way it is different from other sources. 7or e0ample common law and eDuity depend on the legal source of precedents, but legislation loo.s inward to itself H it does not need to refer to other legal sources. Legislation need only be interpreted under the rules of statutory interpretation. Lowe!er in practice legislation sometimes feeds on case law. +ecause it is not always easy to determine what a statute means. %n instances case law and precedent are used to interpret and determine legislation. %unctions of legislation The function of legislation is to carry out law reform, and create, alter or re!o.e law in order to fulfill the intention of the legislati!e body and ultimately the people:!. Legislation also fills the gaps of other sources of law. There are eight other functions. . $e)ision This refers to the re!ision of the common law. The common law may ha!e to be re!ised if it becomes stale or it cannot be adapted to a particular situation or if the decision was unpopular. Therefore re!ision o!errides the doctrine of precedent, it creates change. >hich is in .eeping with what the law should be. Law should not stagnant" it should be a tool for social progress changing to reflect social needs. +ut judges do not ha!e the power to reform e!en when they are supported by public opinion. They cannot create law they can only illuminate it. #. Consolidation of enactments %n certain areas of jurisprudence law has de!eloped piecemeal, legislation is used to clarify and simplify the status of the law. The substance of the law is not altered, only the form. There are three methods of consolidation. There are thee methods of consolidation: 'i) 'ii) 'iii) re?enactment 'or pure consolidation)" by ma.ing amendments" and by ma.ing minor impro!ements and correction.
70 71
4bid Op cit, Antoine, p E(
#5
$. Codification >hen case law is made into statute it is called codification. %t is similar to consolidation e0cept consolidation deals with statutes. +ut li.e consolidation it simplifies and clarifies the law. >hen laws are consolidated and codified, it is called a code. ,urrently draftsmen are trying to codify labour laws of the ,ommonwealth ,aribbean. Antoine is of the opinion that this type of law can be !iewed as a more ele!ated type of legislation :+. 4. Collection of re)enue or monetary control The sole purpose of some legislation is concerned with fiscal matters such as re!enue collection. %n :amaica an e0ample would be the *eneral ,onsumption Ta0 Act ' (( ). K. 4mplementation of treaties @ incorporation >hen a country becomes a signatory to a treaty, the laws of the country are re!ised in order to conform with the treaty, because as a signatory the country has underta.en to do so. The process of ma.ing treaty law enforceable under local law is called Fincorporation<. This can be done by passing legislation that mirrors the treaty or parts of it. Go here the function of legislation is to ma.e international law apart of domestic law. %f a country incorporates treaties into domestic law because the are a signatory, that country has to legislate to enforce the decisions of the international courts. Ta.e for instance the =oney Laundering Act ' ((J) ':amaica) and the =oney Laundering '-roceeds of ,rime) Act ' ((K) '+ahamas) are two e0amples of se!eral countries in the region that ha!e incorporated international money laundering agreements into domestic law. E. Social legislation This is legislation which is concerned with the day to day running of the country. Legislation li.e this is usually delegated by -arliament. They also gibe them power to ma.e regulations. An e0ample is immigration regulations. I. Public policy -arliament can legislate on Gtate policy that is the public interest. The Gtate policy may be in response to public demand or it can simply be an intention of the Gtate to mo!e in a new direction. J. $esponse to pressure groups Gometimes the impetus behind a change in law is generated by a pressure group. ,hange is more efficiently effected by legislation in response to these groups. 7or e0ample human rights groups. Types of legislation There three main types of legislation: . #. Acts of -arliament:. 'or statute)" delegated legislation" and
72 73
Op cit, Antoine, p I5 +efore independence these were called 3rdinances
$.
autonomic legislation.
There are also special forms of legislation .nown as 3rders in ,ouncil. Orders in Council from the prerogative 3rders in ,ouncil are made under the prerogati!e with the ad!ice of the -ri!y ,ouncil.:2 The prerogati!e is e0ercised by the ,rown or the Lead of Gtate. %n the ,ommonwealth ,aribbean the Lead of Gtate is the Sueen :8, the *o!ernor *eneral is her representati!e. This instrument is hardly used. %t is mainly used in relation to the armed forces, the ci!il ser!ice and in states of emergency. ,onseDuently they are not a !iable option to Acts of -arliament. 3rders in ,ouncil are not as scrutinised as other types of legislation. 3rders in ,ouncil are made under the prerogati!e power, but they can also be made under the delegated law function. These two types must be distinguished. 3rders made under the delegated function are similar to subsidiary legislation, but they are to be considered as a more dignified form. -cts of .arliament Acts of -arliament are created by -arliament. They are created by its< Flegislati!e arm< according to the doctrine of the separation of powers. There are two .inds of parliamentary Acts. . -ri!ate Acts ? this .ind of Act only affects the proposer or the sponsor of the Act. The proposer or sponsor may be a company, corporation or pri!ate organisation. -ublic Acts ? these Acts affect the entire nation. &epresentati!es in -arliament on behalf of the people propose them.
#.
Legislation, which is passed in conformity with international treaties or agreements, is also public legislation. Gtatutes or Acts of -arliament consist of the: . #. $. Flong title< H this is the Act<s official name. The content and aims of the legislation will be apparent from the aim. Fshort title< date of assent H does not necessarily ha!e to be the date when the statue comes into force. %t is the date when the Lead of Gtate appro!ed it. %n our case, that would be the *o!ernor *eneral.
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Op cit, Antoine, p I# /0cept in *uyana and Trinidad and Tobago, which replaced the Sueen as Lead of Gtate. They now ha!e -residents and are &epublics #ontego &ay Community College
##
4.
words of enactment H these will simply be Fbe it enacted 8<.
The Ppper and Lower Louses must discuss proposed public legislation. That is the Genate and the ,abinet must ha!e a -arliamentary debate. Then there will be a first, second and third reading of the +ill. 7irst reading H announces the title of the +ill" Gecond reading H the +ill is debated" and Third reading H the +ill is passed. +ills are usually introduced in the Ppper Louse, go!ernment usually introduces them, but any =ember of -arliament can introduce one. /elegated or subsidiary legislation 2elegated or subsidiary legislation is legislation created by subordinate or statutory bodies. These bodies ha!e the power to do so because they ha!e been gi!en this power by -arliament. %n other words -arliament has delegated power to them. They are gi!en wide discretion to formulate the details of legislation. +ut only -arliament has the authority to create the substance of legislation. Pltimately, it is -arliament<s responsibility to create law. +odies that ma.e subsidiary legislation 'statutory bodies) do not ha!e complete authority. ,omplete authority means, the authority to create legal policy. ,onseDuently subsidiary legislation is subject to more scrutiny by -arliament and the courts. Go Acts of -arliament 'or statutes) are two different creatures. +ut they are both are both legal sources, both ha!e force of law and legal authority. +ylaws and regulations are the main types of delegated legislation. egulations or orders *o!ernment departments create regulations" they are also called rules or orders. %t is the most popular form of delegated legislation. They are often statutory instruments which are Duoted by year and number as well as a title, for instance G% ((J6$4+ The >eight O =easurement ',on!ersion of Pnit =easurement) 3rder.
0ylaws +ylaws are not statutory instruments unless the enabling parent Act declares them to be. They therefore only bind those who come within the restricted scope. The scope of bylaws is restricted because they pertain to the local jurisdictions of the body that made them. +ylaws are made by go!ernmental authorities subordinate to -arliament. 3r e0ample local authorities or independent statutory
#$
corporations that regulate administer or manage certain districts, underta.ings, property etc. %unctions of delegated legislation Legislation is delegated for administrati!e efficiency. . Speed and efficiency H -arliamentary procedure for passing law is lengthy. -lus they ha!e to ma.e time to debate it. %n contrast delegated legislation in contrast is speedy. #. Technicality H the subject may need e0pert .nowledge. $. Special knowledge H creating the legislation may also need specific or local .nowledge from e0perts or from people of a particular location. 4. ;le ibility H delegated legislation can be re!o.ed or amended easily. K. &ulk H it is better to put the details of the law in delegated legislation. +ecause of Acts of -arliament are primarily for public consumption. The details of the Acts which are embodied in delegated legislation are usually only used by subsidiary bodies or bureaucrats. E. ;uture de)elopments H it is easier to add details to delegated legislation in the future than it is with -arliamentary Acts. ,onseDuently the law will be better able to .eep up with de!elopments. -utonomic legislation This is a special type of delegated legislation. Autonomous legislati!e bodies such as churches, ,hambers of ,ommerce and The +ar ,ouncil, ma.e autonomic legislation. These types of delegated legislation in limited cases apply to the public but it is meant more often for its own members. Autonomic legislation is howe!er subject to judicial control under administrati!e law, for e0ample 5atherer )" 5omeA ' ((#) 4 >%& EJ. The Anglican ,hurch Act established 2iocesan Gynod and gi!es it power to ma.e regulations etc. for the good go!ernment of the ,hurch 's. #4). Pnder the Act the Gynod retired &e!erend *atherer when he turned si0ty?fi!e. The -ri!y ,ouncil struc. down this &egulation because it had not been published in the *aCette. %t is reDuired by s. K of the %nterpretation Act ' (EJ) that an Act or &egulation be published 'in the *aCette) before it comes into operation. Controlling -cts of .arliament %n the ,ommonwealth ,aribbean, Acts of -arliament must be measured against the constitution whish is supreme. Therefore under the principle of judicial re!iew, Acts of -arliament are subject to judicial scrutiny. This means courts e0amine the legislation to see whether it is in accordance with the principles of the constitution or whether it is ultra )ires.
#4
-arliamentary debates are also an important control as statutes are also an important control as statutes can either be amended or rejected. +y participating in public debate ordinary citiCens can participate in the process. .arliamentary control of delegated legislation The ultimate responsibility for the creation of legislation lies with -arliament. Therefore they must super!ise and scrutinise delegated legislation. This responsibility is critical, -arliament is an elected representati!e go!ernment, they are supposed to represent the people and must !oid !iolating this duty. They therefore monitor delegated legislation in four ways. . #. $. Laying % the document is presented to -arliament, appro!al is implied. Laying sub-ect to affirmati)e resolution H after laying an affirmati!e !ote must be obtained so that the legislation is passed. Laying sub-ect to negati)e resolution ? legislation is laid before -arliament for a specified time, if there are no objections it is passed. %t must be laid in a specified period or it will become !oid. Publication ? before legislation becomes law it must be published, it will usually be published in the *o!ernment *aCette.
4.
-arliamentary control may also be subject to judicial control. 1udicial control of delegated legislation The main concern of the courts in relation to delegated legislation is that delegated power is used appropriately. The court has to ensure that the body, to which power is delegated, does not act with more power than it has. Administrati!e bodies acDuire decision?ma.ing power when -arliament delegates legislation creation to them. This decision?ma.ing power is discretionary. %f the body acts beyond this discretionary power, the courts will !iew the body<s actions so that a remedy can be offered to members of the public who ha!e been affected. >hen an administrati!e body acts beyond its power, this wrongdoing is described as ultra )ires. >hen the courts re!iew the body<s actions that process is called judicial re!iew. The courts are able to carry out judicial re!iew because it has an inherent jurisdiction to super!ise subordinate decision?ma.ing bodies. The fundamental role of the court is to uphold rule of law and justice, scrutinising the use of delegated -arliamentary power is therefore in .eeping with this function. The administrati!e law principle of judicial re!iew is embodied in the constitution of the ,ommonwealth ,aribbean. Therefore it is important to us. +arbados has
#K
actually codified the principles of judicial re!iew in the Administrati!e :ustice Act ' (J5). The legislati!e process of delegated legislation can be controlled at two stages. The: 'i) 'ii) pre?emergent stage" and post?emergent stage.
At the pre?emergent stage the courts loo. at procedure, which should be carried out before the legislation comes into effect. 7or e0ample pre?conditions such as laying. At the emergent control le!el test whether the legislation is !alid after it comes into effect. They will determine whether the legislation conforms with the parent statute. The court will weigh whether the power conferred by -arliament has been abused or not. The use of the court to control delegated legislation by judicial re!iew is apart of an area of law .nown an administrati!e law. The judicial process is di!ided into procedural ultra )ires and substanti!e ultra )ires. .rocedural ultra vires >hether or not legislation is procedurally ultra )ires will be considered at the pre? emergent control stage. At this stage the court e0amines the process by which the legislation comes into being. %f there are preliminary procedural reDuirements, which were not followed, the court may find that the legislation was not legitimately effected. -rocedural reDuirements can be either mandatory or directory. >here mandatory procedures ha!e not been followed, the legislation will be !oid. +ut if directory procedures are not followed, the regulations will not be !oid. >hat constitutes mandatory and directory procedures is uncertain. ,ourts ha!e not been consistent in determining which is which. +ut is certain that procedures reDuired by the constitution are mandatory procedures. 7or e0ample in Belshall )" Pett:9 the regulations effected by a minister were held to be !oid because he failed to obser!e a condition precedent 'or precondition) which was reDuired by the constitution. The minister had the authority to declare a state of emergency. Lowe!er before he did this, the constitution reDuired that he put a re!iew tribunal in place. +ut the minister did not fulfill this condition precedent before he e0ercised the power to ma.e the regulations. As a result, it was held to be ultra !ires and conseDuently !oid ::.
76 77
A (I B ( >%& #I This means that the regulation had no effect.
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The courts will loo. at parent Acts to determine what the preconditions are. Gome preconditions are the reDuirement for consultation or laying. Ta.e for instance, the case of &iggs )" COP:<. This case in!ol!ed the infamous train robber. Pnder the /0tradition Act the minister could ma.e regulations. The condition precedent was that the regulations should lay in -arliament for a specific time. The regulations were held to be in!alid because the condition precedent was not fulfilled and +iggs went free. Another e0ample is A5 )" &arker:7. %n this instance the precondition stipulated that the regulations be effected by the affirmati!e resolution procedure. The regulation was the (J# /ducation Act &egulations, which set the conditions necessary for entry into secondary school. %t was in!alidated because the mandatory regulation was not fulfilled. A case where a precondition was not fulfilled but the legislation was still found to be !alid is Springer )" /oorly<1. The precondition was laying. Three months after the &egulations had been read, neither Louse of -arliament had appro!ed it as is reDuired. The court held that laying was only a directory condition precedent, so the regulations could stand. The reDuirement of publication is usually strict. &egulations, which reDuire this precondition 'reDuired by the parent Act, only become legal when they are published<!. ,onsultation is usually mandatory. ,onsultation means that the minister or other delegated body consult with other bodies. 7or e0ample a minister was reDuired to consult with a local authority in Port Louis Corporation )" A5<+. The reason was the go!ernment wanted to change the boundaries of -ort Louis. +ut the local authority needed more time before it e0pressed its< !iews. They as.ed for an e0tension and the minister refused. The regulations were found ultra )ires. *ubstantive ultra vires Gubstanti!e ultra )ires is concerned with the substance of subsidiary legislation. ,ourts will ma.e sure that the actions of tribunals and the scope of delegated legislation does not go beyond the function of the parent Act. 2elegated legislation will not be !alid it goes beyond the scope of the parent Act 'or enabling statute). Gince it is the parent Act that gi!es the authority to ma.e subsidiary legislation. There will be a breach of ultra )ires in the substance sense if a functionary ma.es legislation outside of the limits of a parent Act or outside of the subject matter of the delegated power. Gubsidiary legislation must be confined to the limits of the parent Act.<. %f for e0ample go!ernment ga!e a local authority the power to ma.e regulations for playgrounds, it would be ultra )ires the delegated
78 79
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power if that local authority also made pro!isions for the regulation of par.s, it would be ultra !ires or outside of the jurisdiction granted. 7or instance in A5 )" &arker and Another<2 , the /ducation &egulations (J# was held to be ultra )ires because it purported to gi!e the =inister of /ducation power which the enabling Act did not gi!e. The issue was whether the minister could inter!ene in the admissions process of secondary schools. %t was held that the /ducation Act ' (J ) did not gi!e a minister the power to determine the Dualifying mar. of a pupil in the secondary schools entrance e0am. Therefore reg #K'($) of the /ducation &egulation (J# which said that he had this power was ultra )ires the Act and conseDuently in!alid. Another e0ample of substanti!e ultra !ires is &onadie )" Bingston &oard<8 . Lere the board had the authority ton regulate the period when elections to the board should ta.e place. The board did not ha!e jurisdiction to determine disputed elections. +ut the +oard made a bylaw to this effect. The bylaw was found to be ultra !ires and therefore in!alid, it was beyond the jurisdiction of the parent Act. ,ourts will loo. at the use of delegated power as well. %f a delegated authority abuses his discretionary power by deciding matters arbitrarily or unreasonably, or ta.es unreasonable considerations into account, he may be found to be ultra )ires the parent Act, the delegated legislation or the fundamental precepts of law. 7or e0ample in #ohammed )" #orraine and Another<9, a Gchool +oard refused to allow a student to wear =uslim dress to classes. Amongst other things the Gchool +oard considered school tradition. The board also did not consider the psychological effect of the refusal and had applied the &egulations <: infle0ibly. ,onseDuently the Gchool +oard was found to ha!e acted ultra )ires the &egulations. 2nreasonableness$ in#ustice and unconstitutionality Apart from not acting ultra !ires its< powers and not ma.ing subsidiary legislation which is beyond the scope of parent Acts, administrati!e bodies must also not act ultra )ires to constitutional norms or other legal norms. %f subsidiary legislation goes against fundamental norms it will be declared ultra )ires. 7or e0ample if the use of a discretion is clearly unjust it will be ruled ultra )ires. Also delegated legislation, li.e -arliamentary Acts cannot !iolate principles of the constitution. Go, delegated legislation must pass a threefold test: . it must conform to the intention, purpose and jurisdiction of the parent Act"
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in its creation, the appropriate procedural safeguards must be adhered to" and it must not !iolate constituted norms or other legal norms such as public policy or justice.<<
Criticisms of delegated legislation 'i) 'ii) 'iii) 'i!) %ts< undemocratic ? subsidiary power is e0ercised by un?elected bodies"
2elegated authorities often sub delegate to others" The !olume of subsidiary legislation is significant. %t is difficult to .eep trac. of it. The controls against abuse are not always efficient. The most important control is judicial re!iew and this is not carried out unless a citiCen challenges delegated legislation or e0ercise of power. This is especially significant in the ,ommonwealth ,aribbean where we are not in the habit of suing the go!ernment or go!ernment?associated procedures. The outcome of judicial re!iew is uncertain. C.!($%! a'0 C$': '(&$'! a! S$.-# ! $/ Law
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The courts must declare customs and con!entions as law and not mere social practice.<7 Customs Antoine feels that legal systems of the ,ommonwealth ,aribbean do not reflect out customs71. 3ur customs are imported to colonisation and sla!ery. The common law rules of custom ,ustom may be !iewed as both an historical and legal source of law in the ,ommonwealth ,aribbean since, in one sense, it is the principle source of all /nglish law, as it formed the basis of the common law which has been transplanted to the region.7! %n /ngland a distinction is made between common law and custom. ,ustom refers to local custom, which become law. +ut if common law e0ists then common law will ta.e precedence. %n the ,ommonwealth ,aribbean, custom
88 89
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forms a distinct body of law that applies to a locality. This is especially apparent in land law or property law. ,ustom comprises two distinct elements. They are: . #. it must be an e0ception to common law" and it must be confined to a particular locality, such as a parish, county or borough. This source of law is not relied upon often, not surprising considering the abo!e.
,ustomary rules are not gi!en judicial recognition until settled by a judicial decision. The party who pleads customary right must actually pro!e that it e0ists. That party must also pro!e that certain tests are satisfied. They are: 'i) 'ii) 'iii) 'i!) '!) '!i) '!ii) antiDuity" continuance" peaceable enjoyment" mandatory" certainty or clarity" consistency" and reasonableness.
These tests do not apply neatly to the ,ommonwealth ,aribbean, 7or e0ample the year J( is fi0ed as to the time from which a custom is considered antiDuated. >e cannot use that date for historical reasons. 3ther than that our jurisdictions are so small it begs the Duestion as to what e0actly is a localityN 2oes a community of a 55 people sufficeN ,onseDuently it is rare to find cases that ma.e reference to custom. %n Gt. Lucia is the ,i!il ,ode is silent on a point, it will allow parties to resort to custom.
Convention ,on!ention as a source of law in our legal system is a topic of much debate in the ,ommonwealth ,aribbean. %t is significant to certain procedures such as the e0ercise of so!ereign power. %n the P@ con!entions are basically non?justiciable practices. The contro!ersy for us is whether they are justiciable here in the ,ommonwealth ,aribbean.
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The short answer is yes. The reason is /nglish con!entions were transplanted to our legal systems as codified law enshrined in our constitutions. Therefore those con!entions ha!e constitutional authority. This means that they are no longer just con!entions" they are hard law and are enforceable. Antoine proposes howe!er that there are some /nglish con!entions, which were not meant to be enforceable in our jurisdictions. 7or instance -arliamentary pri!ilege which is meant to apply solely to the Louses of -arliament in /ngland. %n ?agan )" 5a-ra-7+ the *uyanese courts agreed with this position. They held that the pri!ileges, immunities and powers of the /nglish -arliament were not automatically recei!ed by colonial legislatures. Therefore the spea.er of the Assembly had no power to commit for breach of pri!ilege. I'( -'a(&$'al Law a! a S$.-# $/ Law According to Antoine international law is not traditionally considered as a separate and distinct source of law7.. +ut today international law influences legal systems all o!er the world. 7or instance in the ,ommonwealth ,aribbean it has influenced our constitutional and human rights law greatly. The impact of human rights decisions on law and legal systems is particularly significant in the ,ommonwealth ,aribbean. This is so for two reasons. 7irst, there is a symbolic relationship between international human rights rulings and the ,ommonwealth ,aribbean law because of the similarity between ,ommonwealth ,aribbean constitutions and international rights instruments. This, coupled with the -ri!y ,ouncil<s newfound justification for e0panding the human rights jurisprudence, has resulted in an osmosis beneficial to the de!elopment of international human rights standards in the region. Gecondly, se!eral ,ommonwealth ,aribbean countries are signatories to the 3ptional -rotocol on Luman &ights, a significant factor 872 %nternational law is deri!ed from three sources. They are: 'i) 'ii) 'iii) treaties or international agreements" international customary law" and general principles of law recognised by nations,
%nternational courts also consider highly Dualified publications as an au0iliary source of law. The interpretations of international agreements are also apart of the body of international legal norms and principles. These interpretations are
92 93
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handed down by courts 'regional or international), international committees or committees which ha!e the authority due to power granted by particular international instruments. %nternational law becomes part of domestic legal systems when they are adopted through con!entions and treaties, or by way of accepting practice, which may de!elop into binding international custom. Guch international declarations protocols, agreements or con!entions influence all legal systems. These declare certain legal principles belie!ed to be desirable for all nations.78 Gome e0amples are the: 'i) 'ii) 'iii) P; 2eclaration on Luman &ights" P; ,o!enant on ,i!il and -olitical &ight" and 3ptional -rotocol on Luman &ights
The 3ptional -rotocol is an optional pro!ision of the P; %nternational ,o!enant on ,i!il and -olitical &ights. %t has had undoubted impact in :amaica. %t was instrumental in formulating the Pratt and #organ principle. %ts use was also notable in $obinson )" ?amaica79, in which it was decided that the right to counsel, when the accused is facing the death penalty is a fundamental human right. %n ((J :amaica withdrew from the Pnited ;ations Luman &ights ,ommittee 'P;L&,). :amaica did this so it could resume hanging people on death row and in order to hang them Duic.ly. 2eath row prisoners had had successful recourse to the P;L&,. ,onseDuently the P;L&, was percei!ed to be obstructing popular justice in the country. The ruling in Pratt and #organ caused panic in ,ommonwealth ,aribbean go!ernment who are burdened with increased crime le!els. egional law &egional treaties and agreement also generate legal obligations and influences. As a source of law their effect is similar to international treaties, and instruments. The most significant regional instrument is the ,A&%,3= Treaty. %n addition there is the 3/,G, which is similar to ,A&%,3= for the countries of the /astern ,aribbean states. Conclusion %nternational law can now be legitimately claimed as a source of law in the ,aribbean, if only in the field of human rights.
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Another name for common law is case law. ,ommon law or case law is an important source of law in the ,ommonwealth ,aribbean. ,ommon law is legal principles deri!ed from cases. %t is rele!ant where there are no applicable statutes. ,ommon law or case law is a legal as well historical source. %t is a historical source because the e0istence of the common law tradition in the ,ommonwealth ,aribbean is directly lin.ed to our colonial past. %n other words we practice it because it was transplanted to the region under the /nglish. /nglish common law can be !iewed as a historical source because its< de!elopment is lin.ed to the historical de!elopment of that country. This is because the common law is really the outgrowth of historical custom, consolidated by the ;orman ,onDuest when these local customs were unified into one coherent system of law Fcommon to all men< hence the term Fcommon law<.(I ,ommon law de!elops on a case?by?case basis. %t is this ad hoc legal growth that ma.es common law uniDue. The court builds on the pre!ious judgment in each case. 3riginally this practice was oral, in other words it was a body of unwritten legal rules. These rules were formulated in a fle0ible and informal manner by the @ing<s courts. These courts were collecti!ely .nown as the common law courts. The common law courts comprised of three branches, they were: . #. $. the ,ourt of @ing<s +ench" the ,ourt of /0cheDuer" and the ,ourt of ,ommon -leas.
+ut as the common law de!eloped it lost its fle0ibility and informality and became rigid and identifiable. Therefore, today it is not strictly true to say that the common law is an unwritten body of law. 7or, due to the system of case reporting it has been solidified. /!entually the courts de!eloped rigid administrati!e procedural rules. This also another reason the common law is uniDue. An e0ample or procedural rules is the Fwrit<. The writ regulates the initiation of legal proceedings in court.
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E<.&(5 a! a S$.-# $/ Law >e saw earlier that the common law grew out of the customs and practices of the /nglish, as promulgated in the ancient common law courts. Uet, when we spea. of the common law as a legal tradition, we are not only referring to the body of law which de!eloped in separate and different /nglish courts. This body of law is .nown as FeDuity<, or eDuitable principles. %n laypersons< language, eDuity means fairness, justice, or what is morally just, but in a legal sense, it is a much more specific concept. Gtill, it embraces such notions, as it is a system which was inspired by ideas of justice. %t is commonly said that the law of eDuity is based on rule of conscience. Today, howe!er, eDuity is simply a branch of the law standing apart from the common law. %t may be defined as those principles of /nglish law which were de!eloped and applied in the chancery, admirality and ecclesiastical courts.(J /Duity grew up alongside common law but it is a distinct and separate body of /nglish law. /Duity is apart of the common law tradition but it is ;3T part of the common law. This means that the common law has a dual structure. %t comprises: . #. common law rules" and the rule of eDuity.
F,ommon law< can mean different thins. %t can mean being apart of the common law tradition or it can mean legal principles, which come from case law or precedent. +ut it can also mean that which is not eDuity. %n other words it is the law de!eloped by the ancient common law courts as distinct from that de!eloped by the ,ourts of ,hancery. (( /Duitable rules are laws, but a theoretical distinction is made between e>uitable rules, rights and remedies as well as legal rules, rights and remedies. ,ommon law courts de!elop legal rights" the ,ourt of ,hancy de!elops eDuitable rights. The historical #ustification for and development of e3uity As the doctrine of stare decisis de!eloped, the administration of common law became !ery infle0ible. The common law courts focused more on procedural accuracy, rather than justice. The common law had been designed to be fle0ible and inno!ati!e, but it lost those characteristics. This happened because the doctrine of stare decisis encourages rigidity within the law. Stare decisis also curbed creati!ity" so many litigants were left without a remedy to their problems because courts were confined to the precedents that already e0isted as well as to procedures imposed by the court. As a result common law
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in some instances had become irrele!ant to society. %ts< rigidity created chaos and inefficiency. Go where common law could not satisfy there was recourse to eDuity. Ta.e writs and forms of action for e0ample. 55 7orms of action included a writ and particular rules of pleasing and proof, a specific form of judgment and a method of e0ecuting judgment. +y the end of the $ th century the .inds of a!ailable writs and their forms of action had become infle0ible. Pnder the common law, these systems of writs and forms of action were mandatory. ;o action could be brought in the royal courts without a writ 'which was then a letter in the name of the @ing commanding someone to do what was specified in the writ). There were, for e0ample, Fwrits of right< commencing an action of land and writs of trespass< for injury to person or property. Litigants had to try to fit their circumstances into the writ in order to bring their cases before the common law courts. %f they could not, they could obtain no redress. 5 There was also a need for new remedies because of the de!elopment of society<s social and commercial life. 2amages were the only a!ailable remedy. 2amages is the payment of money as compensation for a wrong. This remedy was not always satisfactory, e!en today it is still not always a satisfactory remedy. Gometimes a plaintiff wants the defendant to return something, such as land, or to e!ict the defendant from land. As a result new eDuitable remedies were de!eloped. The Court of Chancery 3riginally the ,ourt of ,hancery was the Fsessions of the ,hancellor<. The ,hancellor was the @ing<s ,hief =inister, who was usually a member of the @ing<s clergy. %n the Kth century the court became a separate and distinct court. The matters which were brought to the @ing through the ,hancellor were those in which no suitable redress or remedy could be found under the common law as had been de!eloped by that time. >here the common law could not gi!e a remedy or enforce a remedy, informal petitions were addressed to the ,ouncil, which ordered specific relief in the interest of justice. These petitions were then passed to the Lord ,hancellor. 5# The ,hancellor had wide discretion to decide cases justly and fairly. Le acted on the conscience of the parties and issued writs of attendance and ga!e relief. ,hancellors built up a body of principles called eDuitable principles. /Duitable principles sought to correct common law<s deficiencies. 2uring this age the @ing was thought to be *od<s representati!e and therefore infallible. Le was supposed to be the Ffountain of justice<. Therefore the ,ourt of ,hancery e0isted so that he could e0ercise his power to undo injustice in the legal system.
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The nature and the content of e3uity /!en if not strict legal right e0ists, eDuity may grant remedy. That is the nature of eDuity" it corrects the deficiencies of common law. 7or instance if a deal has been struc. and acted upon but no formalities had been underta.en eDuity will gi!e effect to the intention of the parties. 7or e0ample, a mere agreement to create a formal lease is enough to create a legal obligation due to the ma0im, FeDuity loo.s on that as done which ought to be done<. 5$ /Duity will also gi!e effect to legal arrangements if the intention to create legal obligations e0ists. %n common law remedies are a!ailable Fas of right<. The conduct of the plaintiff is not ta.en into consideration, as long as his legal rights ha!e been infringed, he will ha!e a definite right to a remedy. %n eDuity, remedies are discretionary. %n eDuity a remedy is only granted if the court decides that the plaintiff deser!es it. Go e!en there was a wrong, but the plaintiff beha!ed inappropriately he will not recei!e a remedy. %f damages H a legal remedy H is sufficient the court may not award an eDuitable remedy. Therefore the chief differences between eDuity and common law is that a remedy in eDuity is discretionary. This discretion is e0ercised according to fi0ed O settled rules" for e0ample where hardship would result if a contract were enforced 54. %n /udley )" /udley!18 it was said that eDuity does not destroy the law or create it, but assist it. There are sayings that illustrate the nature of eDuity" they illustrate how the law of eDuity will be applied. A few are: 'i) CE>uity does not suffer wrong to be without remedy' . Go where not remedy is a!ailable under common law eDuity has the ability to create a new remedy. C(e who comes to e>uity must come with clean hands' . This means that a person who comes to eDuity must come with a clear conscience, and must ha!e done no wrong in respect of the matter before the court, in order to get a remedy. This one of eDuity<s best?.nown ma0ims. The case that illustrates this principle in!ol!ed the cult of Gcientology. They were the plaintiffs and were trying to get an injunction to refrain a breach of confidence and copyright. +ut the court ruled that they did not deser!e a remedy in eDuity because they had been protecting their secrets by deplorable means 5E. C(e who seeks e>uity must do e>uity'. Go if someone is applying for eDuitable relief he must be prepared to act in an eDuitable manner himself.
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'iii)
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This ma0im is different from Fclean hands< because it loo.s to the future not the past. /Duity features more prominently in property and contract law. 7or e0ample the Ftrust< is an eDuitable creation. The trust is peculiar to common law systems. %t arises where property is con!eyed to T 'the trustee) n circumstances where eDuity will compel him to administer it for the benefit of + 'beneficiary). The trust is also instrumental in succession law where property is in!ol!ed, such as in the drafting of wills. 5I /0amples of new rights created by eDuity are the: 'i) 'ii) 'iii) rights of a beneficiary under a will or a trust" e0istence of an eDuitable interest" and eDuity of redemption.
/Duity has also created new remedies. They include: 'i) 'ii) 'iii) the injunction H this pre!ents foreseeable wrong from occurring" specific performance H this compels someone to perform an obligation such as under a trust" restitution H when the defendant has to place the plaintiff in his original position before the wrong occurred.
The modern e4pression of e3uity The rules of eDuity today are just as strict as common law. 3riginally the ,ourt of ,hancery was able to create new rights and remedies. %t used to be said that eDuity !aried with the length of the ,hancellor<s foot. /Duity used to be concerned with correcting the infle0ibilities of common law. +ut now greater emphasis is placed on e0ercising the discretion within well?defined circumstances. Go eDuity is no longer !iewed as being correcti!e of the common law. The role of the legislature in creating e3uitable principles and offshore developments Gometimes -arliament is the only body that can ma.e the necessary changes in the law 7or instance judges may be too timid to e0ploit the creati!e potential of the law 5J. Go -arliament will e0tend eDuitable jurisdiction into areas that courts held none e0isted.
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7or e0ample in the Pnited @ingdom since the :udicature Acts JI$ H IK, injunctions ha!e had wider use, in the areas of tort, labour law and administrati!e law. %n turn, injunctions ha!e also lead to the de!elopment of new rights such as the law of restricti!e co!enants in property law. Offshore legislative development %n the offshore jurisdictions of the ,ommonwealth ,aribbean there has been inno!ati!e de!elopment f eDuitable principles. The reason for the growth of law in the area is, those countries ha!e created laws in order to address the needs of in!estors. Legislation has been used to change traditional trust law principles. This is significant because Fthe trust< is a corner stone in this area of law. 7or e0ample a !ery important principle of trust law is that trusts cannot be created in perpetuity. +ut offshore jurisdictions ha!e redesigned this rule to e0tend the period of specified perpetuity or abolished the rule completely. New developments by the courts ,ourts ha!e not been as ad!enturous sine the ( th century. +ut modern times ha!e seen some in the law of eDuity. 7or e0ample the creation of the doctrine of eDuitable estopple and the eDuitable remedies of the =are!a injunction and the Anton -illar order 'or search order). /Duitable estopple is a remedy that stops a party from denying something, which he .nowingly or un.nowingly has allowed or encouraged another to assume, to that person<s detriment. =are!a injunctions and Anton -illar orders are used for enforcement. 7or e0ample the Anton -illar order allows a defendant to enter a plaintiff<s premises to inspect documents and remo!e them to the custody of the plaintiff<s solicitor. %t is a form of mandatory injunction or order for disco!ery. A =are!a injunction is an interlocutory injunction pre!enting the defendant from remo!ing assets from the jurisdiction. %t is informally .nown as a FfreeCing order<. +oth remedies deri!e their names from cases 5(. The relationship between the common law and e3uity /Duity is not a self?sufficient body of law. %t was formulated to address the shortcomings of common law. There would still be a coherent system of law if eDuity were abolished. 3riginally the ,hancery ,ourt had an e0clusi!e jurisdiction in eDuity where the common law had no remedy or relief. %n addition, the court of eDuity had a concurrent jurisdiction where the common law recognised the right but offered no remedy. 7or e0ample, where there was a threatened commission of a tort, it
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could grant an injunction to refrain someone from committing a nuisance. The ,ourt of ,hancery had an au0iliary jurisdiction where the common law recognised a legal obligation and ga!e a remedy but was unable to enforce the remedy. 5 /!entually common law and eDuity clashed. The :udicature Acts JI$ H IK too. care of this problem. The Act abolished the separate courts 'common law courts and the ,ourt of ,hancery). %t then transferred their jurisdictions to the new Gupreme ,ourt of :udicature. The conseDuence is that now the administration of common law and eDuity is fused. +ut they are still two separate bodies of law, so damages is still a common law remedy and eDuitable remedies are still discretionary H but one court is able to grant both remedies. %t is important to remember that when there is a conflict between eDuity and common law, eDuity will ta.e precedence. The general effect of the :udicature Act was to con!ert the Fe0clusi!e< and separate jurisdiction of eDuity into a concurrent jurisdiction and to abolish its au0iliary jurisdiction. There is therefore no need to go to a separate court if one wishes to obtain an eDuitable remedy. Gtill, eDuity continues to perform the same function complementing and supplementing the common law in accordance with moral notions of justice and fairness. %t is the common law<s Fsafety !al!e<. (&&&) 1- # 0 '(. T4 D$#(-&' $/ =.0&#&al P- # 0 '( The heart of the common law as a legal source is the doctrine of precedent or stare decisis. The literal translation of stare decisis is Flet the decision stand<. This doctrine pro!ides for the de!elopment of common law on a case?by?case basis. %t gi!es the process impetus and scientific rationale. T4 'a(.- $/ (4 0$#(-&' $/ >.0&#&al 1- # 0 '( The doctrine of judicial precedent operates where no statute applies to a particular legal issue. >hen there is no statutory law the judge will consider case law. Gpecifically, the judge will consider cases decided pre!iously on the particular issue. Le will loo. at the principles contained in such cases" those principles are called judicial precedents. +inding principles are more important because they allow the preser!ation of case law principles. Therefore judges will decide cases in conformity with e0isting rules. +ecause the rationale behind the doctrine of binding precedent is that judges do not create law. They use the e0isting rules to guide them in ma.ing decisions. :udges are therefore bound to apply the legal principles of binding precedent.
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The case of London Tramcars Co" Ltd )" London County Council !!+, was one of the first to ma.e a pronouncement on the doctrine of stare decisis. %n that case, Lord Lalsbury stated that
E= a decision of this (ouse once gi)en upon a point of law is conclusi)e upon the (ouse afterwards and it is impossible to raise the >uestion again as it was res integra and could be re%argued"F!!.
The opposite of binding precedents are Fpersuasi!e precedents<. -ersuasi!e precedents are legal principles contained in judgments, which only offer guidance. These precedents are not binding e!en though the judge will refer to them. Obiter dicta may form the basis of persuasi!e precedents. -ersuasi!e precedents may originate from lower courts in the hierarchy within a jurisdiction. %t may also originate from other jurisdictions. 7or e0ample a decision from the ,ourt of Appeal in Trinidad and Tobago is only persuasi!e authority to a court in :amaica. -recedents from ,ommonwealth ,aribbean jurisdictions and the P@ are highly persuasi!e in the region. 7or e0ample in &oodram )" Ag and Another!!2 the ,ourt of Appeal in Trinidad and Tobago commented on the shared heritage that e0isted between it and :amaica, amongst the similarities was a common history and jurisprudence 8 K +ecause the similarities that e0ist between our constitutional instruments, precedents from the PGA, ,anada, %ndia and the /uropean ,ourt of Luman &ights are highly persuasi!e in constitutional matters. Also when cases in!ol!e socio?economic matters, precedents from other de!eloping countries with a common law legal system are usually !iewed as highly persuasi!e. The jurisdiction from which a precedent emanates and the status of the court, which ma.es the decision and its date, will determine the degree of persuasi!eness of a precedent. Gometimes, the reputation of the judge will influence a court. T4 4& -a-#45 $/ #$.-(! The doctrine of judicial precedent cannot wor. if there isn<t a system of hierarchy of courts. %n the ,ommonwealth ,aribbean the highest court is the :udicial ,ommittee of the -ri!y ,ouncil. The decisions of that court therefore ha!e the most authority. After the -ri!y ,ouncil is the ,ourts of Appeal, then Ligh ,ourts or Gupreme ,ourt of &ecord and intermediate courts such as the family court and resident
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magistrates< courts of :amaica. The last courts in the hierarchy are magistrates< courts and judicial courts. The rule is that each court is bound by the decision of a court abo!e it. Gometimes a court is bound by decisions of a court of eDui!alent status. C$'# 1(! I%1$-(a'( ($ (4 D$#(-&' $/ P- # 0 '( The following are essential to an understanding of the doctrine of judicial precedent. 1. T4 ratio decidendi
The only facet of a decision that is binding on a judge is the legal principle or rile of law contained in that decision. This legal principle or rule of law is .nown as the ration decidendi. A case may contain se!eral ratio decidendi, it is important to distinguish the ratio decidendi that is rele!ant to the subseDuent case. The ratio decidendi may be defined as the statements of the principles of law applicable to the particular legal problems disclosed by the facts. /ssentially therefore, the ratio is the legal reason which the judge gi!es for the decision he arri!es at in a particular case. E %f the case is argued on more than one ground, it is difficult to isolate the ratio. The reason is the case may be decided on only one of the grounds argued. The deciding argument will be binding. +ut it is still possible to ha!e more tKhan one ratio. 7or e0ample, more than one reasons gi!en for the decision. Ta.e for instance the case of $ead )" Lyons and Co" Ltd!!: one of the ratio decidendi in that case was that the rule in $ylands )" ;letcher!!< 8did not apply to the escape of dangerous substances from the defendant<s control. The second was that the rule did not apply unless the plaintiff had an interest in land affected by the escape. ( %t is important to distinguish the ratio from a finding of fact and from the judgment. The judgment is a combination of legal reasoning and the facts of the case. The ratio must also be distinguished from the res -udicata or the adjudicated matter. The adjudicated matter will bind the specific parties in the particular case. GubseDuent parties are not so bound. %n comparison the ratio binds all subseDuent courts. Therefore the res -udicata simply means that the matter has been determined once and for all. /!en if a subseDuent case before the courts
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Op cit, Antoine, p (5 A (4IB A, KE 118 ' JEE) L& /0 #EK" on appeal ' JEJ) L& $ LL $$5 'a pre!ious case) 119 Op cit, Antoine , p (5 #ontego &ay Community College
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appears to be factually identical, the judge or jury may not necessarily come to the same conclusions as was arri!ed at in the earlier case. 6. Obiter dicta
%t is !ery, !ery important to distinguish statements of law, which are Fby the way<, or obiter dicta. There are different categories of obiter dictum. 7or e0ample, a statement of law that is related to facts, which were not material or in fact did not e0ist, will be obiter dicta. %f a statement does not form the basis of a decision it will be obiter. That will be the case e!en if the statement is based on rele!ant facts. 7or e0ample legal principles, which are cited in dissenting judgments, or where the decision is different from the reasoning due to a particular fact. 7or e0ample in (edley &yrne and Co" Ltd )" (eller and Partners Ltd!+1, the chief legal principle was obiter because the only e0ception to that rule had occurred in that case. The legal principle was that the ma.er of a statement owes a duty of care to the listener. The e0ception was if the listener protected himself with a disclosure. The defendant had protected himself with a disclaimer so the principle could not be contained in the ratio decidendi. %f a judge ma.es other remar.s these may also be obiter dicta. &emar.s such as judicial pronouncements or comments on non?legal matters li.e morals or public policy. Go if a judge compares the facts of the case to another situation, e!en if he says that the hypothesis is rele!ant, it is still obiter dicta. *tatements of law made per incuriam Per incuriam literally means through a Flac. of care<. This occurs when rele!ant material, which could ha!e affected the outcome of the case, if it had been considered, was not brought to the court<s attention. Guch rele!ant material includes statutory pro!isions rele!ant legal principles or precedents. A ,ourt of Appeal is not bound to follow its< own pre!ious decision, if it was satisfied that a judgment was gi!en per incuriam. This principle was de!eloped in the leading case of Goung )" &ristol Aeroplane Co Ltd!+!. Lowe!er this does not always affect the doctrine of precedent. ## The per incuriam principle has affected only a few decisions. 2ecisions are only considered to be per incuriam because of forgetfulness, ignorance or inconsistency in statutory pro!isions or binding authority. This as a result, leads to inaccurate legal reasoning. #$ %f a case has not been fully argued or if it seems as though the court has misunderstood law or is unaware of rele!ant policy considerations, the doctrine may be applied.
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The importance of law reporting The doctrine of precedent depends on an efficient system of law reporting because legal principles are located in decided cases. This is the reason important cases are published in Flaw reports<. This mechanism is important to the preser!ation of the common law. The lac. of adeDuate law reporting in the ,ommonwealth ,aribbean is a serious problem. %t also depri!es the region from contributing to the de!elopment of common law. >e lose this opportunity because judges from all common law jurisdictions loo. to other jurisdictions for helpful precedents. Lowe!er if the law reporting system is too efficient, that can cause problems as well. +ecause then the wealth of material becomes o!erwhelming. A:$&0&'2 P- # 0 '( 9 T4 P-$%$(&$' $/ Fl )&*&l&(5 The common law is able to remain fle0ible because the courts are able to a!oid precedents in certain circumstances. They will do this to change judgments, which are considered to be inaccurately decided. 7or instance the Gupreme ,ourt can o!errule the decisions of inferior courts. %n certain e0ceptional circumstances it will actually o!errule its< own decisions. Gome ways of a!oiding binding precedents are: . #. $. 4. K. E. o!erruling" prospecti!e o!erruling" per incuriam O obiter statements" distinguishing precedent" re!ersing a decision" and first impression decisions.
Overruling ,ourts are reluctant to o!errule precedents, because o!erruling wor.s retrospecti!ely. %t does not just affect the case that is o!erruled" it affects the rule of law. A decision may be o!erruled by statute or by a higher court. >hen this happens, the legal principle in the o!erruled case will be treated as though it ne!er e0isted. .rospective overruling This does not occur in /ngland or the ,ommonwealth ,aribbean. %t is an American practice that some common law jurists belie!e should be e0tended to
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the ,ommon Law Tradition. #4 The PG Gupreme ,ourt has e!o.ed the authority to o!errule decisions prospecti!ely. This means that the court applies the earlier decision to the case before them but o!errule in so far as it may affect future cases. #K .er incuriam and obiter statements ,ourts are not bound to follow earlier decisions where the pre!ious decision was reached per incuriam or through lac. of care. This method is not popular since judges seldom gi!e judgments, which do not accurately reflect the law. ,ourts are also not bound to follow obiter statements. Although in future cases obiter dictum may become ratio decidendi, in the interim they cannot be treated as authoritati!e. /istinguishing precedent The process of distinguishing is perhaps the principle means by which judges employ to e!ade judicial authorities which they consider inappropriate to enable the doctrine of precedent to be fle0ible and adaptable. #E %f a precedent can be distinguished on the facts, it does not ha!e to be applied whether it is binding or persuasi!e. To distinguish a precedent there must be a material difference in the facts of the precedent and the current case. %n the later case the judge will be e0pected to justify why the distinction was such as to necessitate the departure from the precedent, and to allow the application of a different rule of law. ,ounsel will assist the court in this process. Lowe!er there are critics who hold the !iew that the practice of distinguishing precedent is now !ery narrow, which has caused the process to become !ery artificial. #I eversing a decision &e!ersing a decision is completely different from distinguishing a decision. >hen a decision is altered on appeal, it is said to ha!e been re!ersed. %t is only the particular case that is affected. %n comparison, o!erruling affects the rule of law or legal principle upon which the decision is based. %n other words it affects the entire body of law. %irst impression decisions ,hange in the common law can also occur where there is an absence of a precedent on a particular legal issue. %n such circumstance the judge must create a precedent in accordance with general principles. Guch cases are described as cases of first impression. %n strict theory, these run contrary to the ArationaleB of the doctrine of precedent, for here, the judge is reDuired to create law rather than to apply it. #J
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?ones )" SOS for Social Ser)ices A (I#B A, (44, p 5#E per Lord Gimon" A (I#B Op cit, Antoine, p (4 126 Op cit, Antoine, p (K 127 *ilmore, *. Legal realismI its causes and cure ' (E ) I5 Uale L: 5$I 128 Op cit, Antoine, p (E #ontego &ay Community College
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A0:a'(a2 ! a'0 D&!a0:a'(a2 ! $/ (4 D$#(-&' $/ =.0&#&al P- # 0 '( The doctrine of judicial precedent has the ad!antage of legal certainty. %n 5allie )" Lee!+7, it was found that the Louse of Lords were not free to o!erride its own decisions, e!en though it had gi!en itself the ability to do so. $5 Gome disad!antages are: . #. The location of legal principles is difficult because of the !olume of reported case law. The process of distinguishing precedent gi!es rise to the danger of illogical technical distinctions, which can lead to the absurdity and e0cessi!e legalism. %t causes rigidity within the legal process. This is the most serious disad!antage of the doctrine. T4 D #la-a($-5 T4 $-5 a'0 (4 O: --.l&'2 $/ P- # 0 '( 9 N w D : l$1% '(! ,ourts are !ery cautious about o!erruling precedents. The reasons are it will affect certainty in the law as well as disrupt financial agreements. ,ourts will only o!errule a precedent if it is clearly wrong. This was the case in #iliangos )" 5eorge ;rank 0Te tiles3 Ltd!.!. Lence the Louse of Lords o!erruled its own pre!ious decisions to the effect that when the court Duoted judgment debts, it was to do so in sterling. The reluctance to o!errule is closely connected to the declaratory theory of the common law. The declaratory theory assumes as fact that the rules of common law ha!e e0isted from time immemorial. This means that the common law cannot be changed it can only be restated correctly. Therefore the judge does not create or change the common law" he merely finds the correct statement of law and declares it. Go if a higher court o!errules a lower court, it will be on the grounds that the law had been misunderstood. >hen the lower court is o!erruled, it will be as though the incorrect legal principle had ne!er been stated. Go judicial o!erruling operates prospecti!ely. /!en though the declaratory theory has been promulgated for years, it is not accepted that judges do not create law. Lord >right has Duestioned how the laws
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A (E(B # ,h I Lowe!er in (EE the Lord ,hancellor issued a -ractice Gtatement on behalf of himself and the other Law Lords to the effect that rigid adherence to precedent may lead to injustice in particular cases, as well as restrict the de!elopment of the law. The -ractice Gtatement gi!es judges fle0ibility, so that they can refuse to follow a pre!ious decision when Fit appears right to do so< 131 A (IEB A, 44$ #ontego &ay Community College
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that ser!ed during feudal times could ha!e ser!ed until and during the nuclear age. $# /rgo law must ha!e been created throughout history. ,onseDuently jurists Duestion whether the doctrine of precedent is appropriate to modern times. 3ther jurists !iew the role of judges as partly declaratory and partly inno!ati!e. There is authority for this in the case of ?ones )" SOS for Social Ser)ices. $$ %n London Street Tramcars!.2 the Louse of Lords found that the decisions bound all other courts as well as itself. Lowe!er this precedent has been discredited. +ecause in -ractice 2irection ':udicial -recedent) A (EEB >L& #$4, LL, the Louse of Lords, declared that they would in future depart from their own decisions when it appeared right to do so. $K Their Lordships said that injustices could result from rigid adherence to precedent, as well as restrict the de!elopment of the law. This practice direction is regarded as ha!ing the force of law, and has been followed. $E The implication of the new direction of o!erruling precedent is eDually important for the ,ommonwealth ,aribbean, both because of the -ri!y ,ouncil, the highest court in the region H or the ,aribbean ,ourt of :ustice when it comes into being H will follow it, and because it represents an important philosophical change for all superior courts in the region. $I This was supported in A5 of St" Bitts and 6e)is )" $eynolds!.<. The liberal attitude to o!erruling precedent was seen in Pratt and #organ!.7. Lere the -ri!y ,ouncil o!erruled its own decision in $iley. %t found that it was cruel and inhuman punishment, as prohibited under s. I of the ,onstitution of :amaica to unduly delay the hanging of prisoners on death row. Lowe!er the power to o!errule a precedent is still e0ercised, only sparingly.
T4 ?& -a-#45 $/ C$.-(! a'0 C$.-(! $/ A11 al The ,ourt of Appeal in the ,ommonwealth ,aribbean is bound to follow the decisions of the -ri!y ,ouncil, and in /ngland the Louse of Lords. >hen the
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>right 'Lord) Legal /ssays, addresses T ($(, London: +utterworths 4bid 134 4bid 135 Op cit, Antoine, p (J 136 ?ones )" SOS for Social Ser)ices A (I#B A, (44" #iliangos )" 5eorge ;rank Te tiles A (IEB A, 44$" &ritish $ailways &oard )" (errington A (I#B A, JII 137 Op cit, Antoine, p (J 138 A (I(B 4$ >%& 5J 139 A (($B 4$ >%& $45 #ontego &ay Community College
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pending ,ourt of :ustice is constituted, ,ourts of Appeal in -arty Gtates will similarly be mandated to follow this final superior court. 45 >ithin this hierarchy there ha!e been tensions as illustrated in Cassell and Co" Ltd )" &roome!2!. That case also established that e!en though it is possible to depart from conflicting decisions within the tier of the ,ourt of Appeal, this could not happen in relation to the upper tiers. Lord Lalsham was noted for saying that the ,ourt of Appeal had 8 to accept loyally the decisions of the higher tiers. 4# *enerally ,ourts of Appeal are bound by their earlier decisions. This was established in Goung )" &ristol Aeroplane Co" Ltd!2.. The case also established three instances when the court is not bound. They are: . #. A ,ourt of Appeal can choose between conflicting authorities. The decision that is not chosen is !iewed as o!erruled. %f a decision conflicts with the decision of a higher court, a ,ourt of Appeal is bound to refuse to follow its< own decision. %t will be bound e!en if that conflicting decision has not been e0pressly o!erruled. This would apply to a -ri!y ,ouncil decision in the ,ommonwealth ,aribbean. A ,ourt of Appeal is not bound to follow a per incuriam decision.
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The ,ommonwealth ,aribbean adheres to this !iew. %n A5 of St" Bitts and 6e)is )" $eynolds!22 " -, Gt. @itts O ;e!is the court was of the !iew that it was:
E= most important in the public interest* that the Court of Appeal should be bound by its own decisions on the >uestion of law* sa)e for the e ceptions specified in Goung )" &ristol Aeroplane Ltd"F
%n regards to the doctrine of precedent, a distinction has to be made between criminal and ci!il proceedings in the ,ourt of Appeal" precedents may not always bind the criminal di!ision from other decisions of the court. -rimarily, the court will not consider itself bound by its pre!ious decisions in a criminal matter where this would cause injustice to the appellant. 4K The reason for this rule is that criminal matters in!ol!e the liberty of the subject. The court is gi!en the discretion to decide in such serious circumstances. This rule has also been e0tended to the criminal jurisdiction of the Gupreme ,ourts in the first instance 4E.
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This distinction between ci!il and criminal decisions is accepted and followed here in the ,ommonwealth ,aribbean. Go that ,aribbean ,ourts of Appeal in criminal cases will not bind themsel!es to pre!ious decisions. &egardless of whether these decisions are from ,ourts of Appeal from other jurisdictions or from pre?independence courts. %f a ,ourt of Appeal ga!e a defecti!e judgment, its correction would be the responsibility of a final appellant court. +ut in the region, a ,ourt of Appeal, in a ci!il case can correct its own error, in e0ceptional circumstances. The *uyanese ,ourt of Appeal is the forerunner in this regard, for this occurred in #unisar )" &ookers /emerara Sugar Estate Ltd!2:. %n this case the *uyanese ,ourt in an employment law case, departed from an established principle because the pre!ious decision would cause injustice. D #&!&$'! $/ (4 P-&:5 C$.'#&l The -ri!y ,ouncil will not consider itself bound by its pre!ious decisions because it does not operate according to the pure theory of precedent. 7or instance in ;isher )" A5 of the &ahamas!2<, the +ahamas Lord Gteyn reminded the -ri!y ,ouncil that there were no binding precedents that reDuired them to decide a narrow Duestion one way or the other. +ut the -ri!y ,ouncil is reluctant to depart from pre!ious decisions. %t will only re!iew decisions if a new point of law has arisen. The decisions of the -ri!y ,ouncil must be followed by ,ourts of Appeal, Ligh ,ourts or Gupreme ,ourts and all other lower courts" at least those from their own jurisdiction, and treat then as binding. >hen two -ri!y ,ouncil decisions conflict the lower court can follow the decision it finds more con!incing 4(. Pntil the pending ,aribbean ,ourt of :ustice outlines its own policy on binding precedent, the Duestion is open. ;onetheless, it is li.ely that it will operate along similar lines to the -ri!y ,ouncil and allow itself the greatest fle0ibility in coming to a decision. K5
&igh Courts The judgments of Ligh ,ourts are first instance decisions. Therefore, technically, a decision from one Ligh ,ourt is not binding on another Ligh ,ourt judge. %f there is a conflict the latter decision is to be preferred.
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%n the ,aribbean we follow this rule to ensure certainty in the law. A Ligh ,ourt decision is binding on all inferior courts including magistrate<s courts and tribunals. %n practice the decision of a Ligh ,ourt judge is persuasi!e" Ligh ,ourt judges do not li.e departing from precedents gi!en by other Ligh ,ourt judges. %f there is a conflict the latter decision is to be preferred, if it was reached after full consideration of the earlier decisions. This principle was declared by 2enning in #inister of Pensions )" (igham!8!. /ecisions from ,agistrates Courts 2ecisions emanating out of magistrate<s courts are not significant in the doctrine of precedent. 3ne reason is these decisions are rarely reported in law reports, so it would be difficult to locate the judicial precedent. 7urthermore these precedents would not bind any other court, because magistrates< courts are the last in the hierarchy of courts. =agistrate<s courts do not bind themsel!es to their own decisions, but they are e0pected to be judicially consistent. T4 Ca-&** a' P -!1 #(&: 9 D&//&#.l(& ! &' (4 O1 -a(&$' $/ P- # 0 '( >hile in theory, the legal systems of the ,ommonwealth ,aribbean adhere to the strict theory on the doctrine of judicial precedent, the doctrine may not always operate in the way in which it was intended. This is due to the peculiarities in the region<s legal systems which relates both to structure and outloo.. K# P-$*l %! &' (4 ?& -a-#4&#al S(-.#(.- $/ C$.-(! The doctrine of precedent needs a hierarchical court system in order to wor. well. %n each ,ommonwealth ,aribbean state this is not a problem. +ut when the region is considered as a whole, clarity is lost. >ith the e0ception of *uyana, all ,ommonwealth ,aribbean ,ourts share the -ri!y ,ouncil as their final ,ourt of Appeal. This fact gi!es rise to a psychological relationship between those courts. %n addition we share political, sociological and economic similarities as well as ,A&%,3= H in other words, we share an identity. This promotes unity" but it also causes confusion because it is not easy to reconcile the status of decisions emanating from the hierarchy. =arie +elle Antoine feels that the approaching ,aribbean ,ourt of :ustice will not automatically resol!e those difficulties K$. Go it is not easy to say which courts will bind which. 7or e0ample do the decisions of pre?independence courts bind modern day courtsN %n addition to this, how should we treat judgments from sub?regional courts and pre!ious regional courts, such as the ,ourt of Appeal of the 3rganisation of the /astern ,aribbean Gtates '3/,G) or the defunct 7ederal Gupreme ,ourtN
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A (4JB # @+ K$ Op cit, Antoine, p 5$ 153 Op cit, Antoine, p 54 #ontego &ay Community College
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Added to the problem is that, due to a shortage of human resources, the same judges man both the Ligh ,ourt or Gupreme ,ourt and the ,ourt of Appeal. The comple0ity of the abo!e issues is compounded when we consider the inadeDuate system of law reporting in the region. .re5"ndependence Courts The precedence from pre?independence courts is persuasi!e rather than binding. The defining authority for this is (ano)er Agencies )" 4ncome Ta Commission!82" The reason courts !iew pre?independence precedents in this way is because of the different constitutional status of the two courts as well as the principle of Fjudicial comity<. :udicial comity means the respect courts of eDual status accord to each other. %n the (ano)er case the ,ourt of Appeal of :amaica declared that it was not bound by the decisions of the former ,ourt of Appeal. %t stated that the court was established as a superior court of record by the ,onstitution 's. 5$), and was a distinct and separate body e!en though the jurisdiction and powers of the former ,ourt of Appeal were !ested in it 's. J :udicature 'Appellate :urisdiction) Law (E#). The court went on further to say that it would 8 always regard the decision of the former ,ourt of Appeal with the greatest respect and as being of strong persuasi!e authority KK. The Lano!er case was seminal, it was decided during the period just after independence, when the ,ourt of Appeal of :amaica was newly constituted, and ,aribbean judges were perhaps not yet accustomed to their newfound freedom. Gtudents are reminded that *uyana abolished the -ri!y ,ouncil as the court of last appeal. /ecisions from other Caribbean Courts of -ppeal 2ecisions from other ,ourts of Appeal in the ,ommonwealth ,aribbean are persuasi!e and not binding authority. This was held in the case of AAiA Ahamad )" $aghubar!89. *ub5regional Courts Academically decisions from sub?regional courts are more problematic. &egional courts can be treated as either: . #. A court sitting in se!eral :urisdictions" or A separate ,ourt of Appeal for each jurisdiction.
%f sub?regional courts are treated as a separate ,ourt of Appeal for each jurisdiction, then their decisions would be merely persuasi!e. +ut if the court was treated as sitting in se!eral jurisdictions, the decisions would be treated as
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binding. The former approach seems more correct. The 3/,G is different from the -ri!y ,ouncil because it was constituted deliberately and formally as a regional court. %n practice the status of decisions do not cause difficulties. The 3/,G ,ourt of Appeal treats them as binding. D #&!&$'! $/ (4 P-&:5 C$.'#&l -ri!y ,ouncil decisions originating from one ,ommonwealth ,aribbean jurisdiction will usually bind other jurisdictions in the region. +ut if the decision is felt to be wrong, there is support for the !iew that a ,ourt of Appeal of the region could refuse to follow the precedent. /!en though the notion that a -ri!y ,ouncil decision from one jurisdiction can bind another, seems li.e a relic from colonial rule it is a modern day issue. %n $ )" Singh!8:, a :amaican case, the decision supports the proposition that -ri!y ,ouncil decisions may bind other courts which share its< jurisdiction e!en if they are geographically outside the region 8 KJ. The justification for this approach is to promote uniformity % the common law world. A -ri!y ,ouncil decision from another jurisdiction is sufficient to allow a ,ourt of Appeal to depart from its own pre!ious decision. This is a de!iation from the rule that a ,ourt of Appeal should not so depart, discussed abo!e. K( 7or e0ample in Hilliams )" $!91, the Trinidad and Tobago ,ourt of Appeal was faced with four conflicting precedents. They were a -ri!y ,ouncil precedent from :amaica, /nglish precedents, precedents from other common law jurisdictions and its own pre!ious >est %ndian decision of ?ohnson )" $!9!. The court decided that the :amaican -ri!y ,ouncil decision o!erruled ?ohnson )" $ and was the correct one. ,ommonwealth ,aribbean courts rarely de!iate from -ri!y ,ouncil decisions, regardless of where it originates. The *uyanese ,ourt of Appeal is not bound by -ri!y ,ouncil decisions as appeals to the -ri!y ,ouncil ha!e been abolished. T4 R la(&$'!4&1 * (w ' Ca-&** a' C$.-(! a'0 E'2l&!4 C$.-(!
The doctrine of precedent operates on the assumption of a hierarchy of courts. >ith the e0ception of *uyana, The -ri!y ,ouncil is the ape0 of the judicial system of the ,ommonwealth ,aribbean. +ut the -ri!y ,ouncil has !iolated this
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A (E$B K >%& E Op cit, Antoine, 5I 159 Op cit, Antoine, 5J 160 A (I4B #E >%& K4 161 A (EEB 5 >%& 45# #ontego &ay Community College
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philosophy by adopting decisions of the Louse of Lords as the basis of it judgments. ,aribbean courts are in turn bound. The -ri!y ,ouncil has ostensibly ac.nowledged Louse of Lords decisions as binding, as seen in Abbot )" $!9+ thus presuming a ne0us between itself and the Louse of Lords. The practice was also demonstrated in the case of Bing )" $!9., a :amaican case, where the ,ourt of Appeal !iewed the /nglish decision of Baruma!92. EK Pnder the pure application of the doctrine of precedent there is no justification for the -ri!y ,ouncil to treat Louse of Lords decisions as binding. +ecause the Louse of Lords is not apart of the ,ommonwealth ,aribbean hierarchy of courts. >here a decision of the -ri!y ,ouncil conflicts with a later decision of the Louse of Lords which e0pressly states that the earlier decision, which the -ri!y ,ouncil had followed is wrongly decided, it may be legitimate for a ,aribbean court to ignore the -ri!y ,ouncil decision and follow that the Louse of Lords. EE ?amaica Carpet #ills!9: is an e0ample of such an opinion. Lere the ,ourt of Appeal of :amaica decided the case according to a Louse of Lords decision EJ , which was !iewed as being the authoritati!e precedent on the Duestion and point of Fcommon law<. As a result the court felt justified in not following a conflicting but corresponding -ri!y ,ouncil decision. The court said that a Louse of Lords decision could be followed to the e0clusion of a -ri!y ,ouncil decision when: 'i) 'ii) 'iii) a point of positi!e law 'that is the common law) has been settled by the decision. the Louse of Lords has ad!erted to and indicated where in lay the error of the earlier decision" and if the matter were to come up before the -ri!y ,ouncil, it would be bound to respect the later decision of some of its members sitting in another place. E(
%t should be noted howe!er that this rule is not absolute. 2ifferences in statute, local circumstances and custom will wor. against acceptance. =.0&#&al P- # 0 '( a'0 (4 D #la-a($-5 T4 $-5 &' (4 Ca-&** a'
162 163
A (IJB >L& $4#, -," A (IIB A, IKK A (EJB # >%& #EJ 164 A (K B A, (I 165 Op cit, Antoine, p 166 4bid 167 A (JEB 4K >%& #IJ 168 #iliangos )" ;rank Te tiles A (IEB A, 44$" A (IKB $ All /& J5 169 A (JEB 4K >%& #IJ, pp #(# H ($, per ,arey : #ontego &ay Community College
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%f the declaratory theory of law is accepted, it means that it is accepted that immutable legal principles are already contained within the body of law recei!ed from or imposed by the former colonisers. This !iew assumes that once the legal principle is declared, all jurisdictions, which belong to the common law world, are bound. Logically and according to the strict theory of judicial precedent, this means that we in the ,aribbean are bound by the Louse of Lords decisions because it is the most authoritati!e court in the /nglish common law system, and we are apart of that system. This curtails the de!elopment of >est %ndian jurisprudence, because /nglish common law bind ,aribbean ,ourts. ,onseDuently ,ommonwealth ,aribbean judges ha!e no authority to: . #. o!errule precedent" and shape >est %ndian law" or contribute to the de!elopment of the common law.
&ose?=arie +elle Antoine asserts that the declaratory theory is not reflected in ,ommonwealth ,aribbean decisions I5. >e treat /nglish decisions as containing unchangeable rules that automatically apply to the ,ommonwealth ,aribbean. This treatment applies to decisions from lower or inferior courts as well. The de!elopment of a uniDue jurisprudence within the region is therefore undermined. ,aribbean ,ourts ha!e howe!er been prepared to reject precedent where local circumstances are different I . They concede to Louse of Lords decisions only to the e0tent that they promulgate a point of common law of general application. C$0&/& 0 C$%%$' Law >hen ,aribbean statutes are based on /nglish law, they are interpreted as if corresponding /nglish decisions are binding. Trimble )" (ill!:+ contains dicta, which suggests that at least in respect of identical statutes, /nglish decisions are binding. Lowe!er it was suggested that such /nglish decisions were only persuasi!e in ?aganath )" $!:.. The :amaican ,ourt of Appeal actually rejected the argument that -ri!y ,ouncil interpretations of identical statutes should be binding on another jurisdiction I4. They were of the !iew that such precedents were to be entitled to respect, but were not binding. This approach was endorsed in ?amaica Carpet #ills.
170 171
Op cit Antoine, p $ ?amaica Carpet #ills ' (JE) 4K >%& #IJ, pp #(# ? ($ 172 A JI(B K App ,as $4#, -, 173 A (EJB >%& $ K 174 $ )" &arbar A (I$B # >%& $4$ #ontego &ay Community College
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%t is thought that such /nglish decisions should be used merely as guides to statutory interpretation, as held in the case of Chettiar )" #ahatmee!:8. IE 3ne reason is, the interpretation of an /nglish statute, by an /nglish court may not reflect the intentions of a ,aribbean legislature for adopting that statute. The status of identical statutes is limited by two rules: . #. The Flocal circumstances rule<" and Gtatutes must not be contrary to the policy of the local legislation as e0pressed in statute.
The Flocal circumstances rule< state that identical statutes 'or statutes in pari materia) should apply only in so far as local circumstances permit and will be consistent with their interpretation. This rule was illustrated in A& )" Social Helfare Officer!::. The law had to consider matrifocality and e0tended families in the ,ommonwealth ,aribbean in regards to /nglish dicta since it is common in the ,aribbean for grandmothers to care for children, the court departed from /nglish dicta that limited a grandmother<s ability to adopt children. The second rule is self?e0planatory. @. (&) Cla!!&/&#a(&$' $/ Law: - a!$'! /$- #la!!&/&#a(&$'1AB3
,lassification aids in teaching e0position and writing of what on the surface is a jumbled mass of material" so too for those who are concerned with its administration. The -olice, ,ustom 3fficers and others will be daily confused if they were concerned with the whole. ,onseDuently they are only concerned with that segment of the law classified as the ,riminal law and import6e0port trade law respecti!ely. Also, the enactment of law and the writing about the law necessitates focusing on some particular problem or area of the law within one or other of the classification schemes. (&&) #la!!&/&#a(&$' *a! !3
The law can be classified according to subject matter and in so doing, arranged in alphabetical order, e.g. Administrati!e Law, Agency Law, +an.ing Law, +usiness Law, ,onstitutional Law, ,omparati!e Law, ,riminal Law and so on. (a)
175 176
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A (K5B A, 4J Op cit, Antoine, I 177 A (E B $ >%& 4#5 178 The notes in topic $'i) and 'ii) are from the notes prepared by ,1, #ontego &ay Community College
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,ontract H two or more people who form an agreement, which they intend to ha!e legal conseDuences, ha!e formed a contract. Go if there is a breach of contract the parties can go to court to obtain a remedy. ,rime H when people sue each other they are in!ol!ed in a ci!il suit or action. %n criminal matters actions are prosecuted by the state. A crime is a public offence against the Gtate. The object of a criminal charge is not to compensate the !ictim" it is to punish the offender. Tort H The law of torts deals with the enforcement of duties e0isting between indi!iduals as members of society. I( A breach of those duties may be both a crime and a tort, for e0ample battery, trespass, and nuisance. A party who has been injured in tort, has a right to be reimbursed in damages for the wrong committed. This wrong is called a tort. %t is a ci!il wrong independent of contract. Tort arises out duties imposed by law and not by agreement. ;uisance trespass and slander are well?.nown ci!il wrongs. Trust H when persons hold property for the benefit of others e0ample land, a trust is formed. -eople may do this for e0ample when people want to pro!ide for their children when they die. Trustees will be appointed to loo. after the property but will not benefit from it themsel!es. (*) /.'#(&$'al 9 /$- )a%1l " !.*!(a'(&: a'0 1-$# 0.-al3
The function that the law ser!es is also a basis for classification. The laws that create rights and obligations or recognise and protect such rights e.g. the pro!isions of your ,onstitution that recognise and protect that group of rights called fundamental rights, are referred to as substanti!e laws. >hile procedural laws are those that lay down the procedure to be followed to !indicate or defend that right. Go the police officer has a duty6obligation to arrest you for certain offences H assuming the conditions e0ist for him so to do H an e0ercise based on a substanti!e law that gi!es him the power of arrest. La!ing arrested you, the law lays down the procedure that must be followed by him and the ,ourt for the proper determination of the case.
(#)
#$'# 1(.al 9 /$- )a%1l " 1-&:a( law a'0 1.*l&# law.
Gubject matter law can also be classified on the basis of the in!ol!ement of the state as a party. Those subject areas with the state as a party are referred to as -ublic Law e.g. Administrati!e Law, ,onstitutional Law, ,riminal Law and &e!enue Law. >here the law is concerned with parties in their pri!ate capacity,
179
2illa!ou and Loward, -rinciples of +usiness Law, p I
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those subject areas are referred to as -ri!ate Law e.g. the Law of ,ontracts, Torts, ,ompany Law, ,onflicts of Laws. Law is di!ided into pri!ate and public law. -ri!ate law relates to people personally in e!eryday transactions. %t also concerns pri!ate bodies and associations. -ri!ate law includes tort, contract commercial law, family, property and trusts law. -ublic law deals with the constitutions and the function of go!ernmental organisations and their legal relationship with the ordinary citiCen and with each other. These relationships form the basis of administrati!e and constitutional law. ,rimes which in!ol!e the Gtate<s relationship with the power of control o!er the indi!idual, is the concern of public law. C. (&) C$.-(!: C-&%&'al a'0 C&:&l C$.-(! 9 !(-.#(.- a'0 4& -a-#45: (4 =.0&#&al C$%%&(( $/ (4 P-&:5 C$.'#&l (Ca-&** a' C$.-( $/ =.!(&# )" C$.-(! $/ A11 al" ?&24 C$.-(! a'0 S.1- % C$.-(!" Ma2&!(-a( ! C$.-(! 9 &'#l.0&'2 =.: '&l C$.-(" Fa%&l5 C$.-( a'0 P ((5 S !!&$'!3 T4 C$.-( S5!( % $/ (4 C$%%$'w al(4 Ca-&** a' The ,ommonwealth ,aribbean legal system is modeled on the /nglish legal system. Lowe!er the power to create and regulate our court systems is deri!ed from our constitutions and other local statutory instruments. >e ha!e been able to do so since independence, this was affirmed in (inds )" $ J5. The court system is based on a three?tier structure. At the ape0 of the structure is the :udicial ,ommittee of the -ri!y ,ouncil" this court is based in /ngland. The -ri!y ,ouncil is the final ,ourt of Appeal for all the territories of the ,ommonwealth ,aribbean e0cept *uyana. Goon the ,aribbean ,ourt of :ustice may replace it. %n the second rung of the structure are superior courts 'or courts of record). 7inally are the inferior courts. %n :amaica there is a fourth rung. This rung falls between the superior and inferior courts H an intermediate court. There are other specialised courts, which are not included in this hierarchy, which are found in the region. These courts may be inferior, intermediate or superior courts but because they are specialist courts they cannot be included in the hierarchy of ordinary courts. &egional and international courts are also not represented in the three?tier structure 'four for us in :amaica) but they impact the judicial system in the region. %n the ,ommonwealth ,aribbean there is one regional court
180
A (IEB All /& $K$
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"nferior courts %nferior courts 'or courts of summary jurisdiction) are the lowest ran.ing courts in the legal system. They comprise magistrates< courts and petty sessional courts. These courts do not ha!e appellate jurisdiction. -etty sessional courts usually ha!e criminal jurisdiction. They6their: 'i) 'ii) 'iii) grant bail" issue summonses O warrants of arrest" justices of the peace O magistrates can deal with persons who ha!e committed indictable offences. This means they can e0amine an accused to determine whether they should be committed to Ligh ,ourt for trial by jury. ha!e a summary criminal jurisdiction, so they are able to deal with minor offences if a statute has conferred such jurisdiction on them. magistrates or justices of the peace ha!e jurisdiction o!er ju!eniles and maintenance of children, in most territories. handle Duasi judicial matters such as applications for liDuor licences.
'i!) '!) '!i)
Appeals from petty sessions go to the Ligh ,ourt. ,oroner<s ,ourts are included among courts of inferior jurisdiction. The coroner 'or chief officer) is usually a magistrate who sits with a petty jury. The court e0amines the circumstances or causes of suspicious or unnatural death. They do this by conducting inDuiries, which are called inDuests. The !erdict is called FinDuisitions<. Ma2&!(-a( 8! C$.-(! are another inferior court. Gtipendiary magistrates operate them. The procedure operated by inferior courts is labeled Fsummary<. Gummary procedures are Duic.er than in superior courts, because a jury does not sit. The jurisdiction of inferior courts is se!erely limited, either by placing a monetary limit determined by statute to the type of offence which may be heard, or by restricting the jurisdiction to particular types of offences. The jurisdiction of magistrates< courts is conferred by statute. %t is di!erse and !oluminous. J The fines which magistrate<s impose are fi0ed by statute. Psually, appeals from magistrates< courts go to the ,ourt of Appeal. +ut in +arbados, appeals go to a special di!ision of the Ligh ,ourt called the called the 2i!isional court J#. %nferior courts ha!e a dual function" they in!estigate and try criminal matters. Guperior courts do not do this. Trials in magistrate<s court are conducted by
181 182
Op cit, Antoine, p # E 4bid
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magistrates, they try summary offences. Gummary offences are offences, which are reDuired to be tried summarily, by statute. +ecause of their criminal jurisdictions magistrate<s courts must also hold preliminary inDuiries into indictable matters. They do this to determine if there is enough e!idence for the matter to be sent to Ligh ,ourt. %n some situations, inferior courts can try indictable cases. +ut the accused is first gi!en the choice of trial by jury J$ or summarily. These offences are called Fhybrid offences<. This is a recent legislati!e de!elopment. >here there is no jury, if the accused is found guilty the penalties are usually harsher. %f a hybrid offence is tried summarily, the accused still retains the right to appeal to the ,ourt of Appeal J4. %n hybrid offences a judge can decide whether or not an accused will be allowed to proceed summarily. Go if an accused chooses summary trial and then changes his mind, the judge may refuse this reDuest if suspects that the accused is trying to delay his trial JK. %n ci!il matters inferior courts ha!e limited jurisdiction. The jurisdiction is limited by monetary !alue as well as the nature of the offence. 7or e0ample they cannot try ci!il suits in tort such as libel and slander. They also cannot try cases such as probate matters, seduction and land title disputes. %nferior courts cannot offer certain types of remedies. This differentiates them from superior courts. The remedies they offer will be limited by statute as well as jurisdiction. %nferior courts will ha!e branches located in different parts of the country. >hile the superior court will be centrally located, %nferior courts do not sit with a jury. R !&0 '( Ma2&!(-a( 8! C$.-(! are uniDue to :amaica. %t is an intermediate court. The court is similar to county courts of /ngland. 3rdinary magistrates< courts are operated by stipendiary magistrates. &esident magistrates, who are assisted by court cler.s who are legally Dualified, operate resident magistrates< courts. A bailiff will also assist the resident magistrate. >here the resident magistrate has assumed jurisdiction o!er indictable offences he will also be assisted by an e0 officio justice of the peace and the court administrator and prosecutor. &esident magistrates ha!e a wider jurisdiction than stipendiary magistrates. They can try indictable offences as well as ci!il cases in e0cess of the statutory monetary limits JE of magistrates< courts. *uperior courts The superior court 'or court of records) is comprised of two courts. They are the Ligh ,ourt and the ,ourt of Appeal. The jurisdiction, powers and authorities of
183 184
That is, at Ligh ,ourt Bwame Apata )" $oberts 06o" +3 ' ((J) $ >%& # ( 185 Chadee )" Santana ' (JI) 4# >%& $EK 186 >hich is currently V ,555.55, in other territories it is VK55.55 #ontego &ay Community College
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these courts is conferred on them by the constitution or any other law ,ollecti!ely both courts are .nown as the Gupreme ,ourt.
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The Ligh ,ourt is the ,ourt of 7irst %nstance or the trial court. The ,ourt of Appeal carries out the appellate function. %t should be noted that the names of these courts may !ary form territory to territory. %n +eliCe the Ligh ,ourt is called the Gupreme ,ourt and the ,ourt of Appeal is called the ,ourt of Appeal. %n electoral cases the superior courts ha!e jurisdiction. /lectoral disputes are confined to the Ligh ,ourt and ,ourt of Appeal. The Ligh ,ourt will determine matters concerning membership of the legislature 'whether it is the Genate or Louse of Assembly). %n +arbados, +eliCe and :amaica the decision of the Ligh ,ourt is final. +ut the other territories such as the 3/,G states an appeal can be made to the ,ourt of Appeal, but no appeals cannot be made from the ,ourt of Appeal. The superior courts also e0ercise a super!isory jurisdiction o!er statutory bodies and statutory powers. This jurisdiction is inherent. The procedure and operational details of this court are laid down in the Gupreme ,ourt of :udicature Acts in the region. The Act also describes the functions and jurisdictions of the !arious courts. Also the courts are gi!en the power to create court regulations or rules. ?&24 C$.-(! ha!e both an original and an appellate jurisdiction. %n its appellate function it will hear appeals from summary trials coming from inferior courts such as petty sessional courts. Gometimes, in certain instances the Ligh ,ourt will hear appeals from administrati!e tribunals on points of law. -lease remember in +arbados appeals from magistrates< courts go to a special di!ision of the Ligh ,ourt called the 2i!isional ,ourt. The Ligh ,ourt tries both criminal and ci!il matters as a ,ourt of 7irst %nstance. %ts< jurisdiction in these matter is unlimited. There is no limit on the amount of damages the court can award but it usually follows the established principles used to assess the Duantum of damages. Ligh ,ourts hear actions in eDuity, common law, di!orce and matrimonial causes, probate ban.ruptcy and admirality matters. Lowe!er if inferior courts can handle less serious matters, the Ligh ,ourts will focus on the more important ci!il cases. Ligh ,ourts ha!e criminal jurisdictions o!er all treasons, felonies and misdemeanors. The court tends to try the more serious indictable offences. +ut there is a presumption that if an offence is created by statute it is triable by the Ligh ,ourt unless the statute says otherwise. Appeals from this court go to the ,ourt of Appeal. %n Trinidad and Tobago sometimes it is possible to go straight to the -ri!y ,ouncil. A !ery significant function of the Ligh ,ourt or Gupreme ,ourt is that applications for judicial re!iew are made within its jurisdiction. Go they are !iewed as the Fguardians< of the constitution. %f someone is see.ing redress for a !iolation of
187
Guch as common law and eDuity
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fundamental constitutional rights, a constitutional motion to the -ri!y ,ouncil JJ is also a!ailable, where the application for redress to the Gupreme ,ourt failed. ,ourts of Appeal only ha!e appellate jurisdiction. +ecause the court is not re!iewing e!idence or facts of the case it sits without a jury. An une!en number of judges usually sit the number is generally three. The ,ourt of Appeal hears appeals from the Ligh ,ourt and from magistrate<s courts. ,i!il appeals from the Ligh ,ourt are as of right. ,riminal appeals howe!er are limited to the following: 'i) 'ii) 'iii) against con!iction on any ground which in!ol!es a Duestion of law" with lea!e of the ,ourt of Appeal or upon the certificate of the trial judge that it is a fit case for appeal" and with lea!e of the ,ourt of Appeal against sentence where that sentence is not one fi0ed by law. J(
The ,ourt of Appeal also hears appeals from decisions of special courts such as Duasi?judicial bodies. 7or e0ample the ,ourt of Appeal of Trinidad and Tobago hears appeals from the %ndustrial ,ourt of Trinidad and Tobago. T4 Ca-&** a' C$.-( $/ =.!(&# D (4 P-&:5 C$.'#&l T4 Ca-&** a' C$.-( $/ =.!(&# The Agreement /stablishing the ,aribbean Gupreme ,ourt 'the Agreement) is the treaty instrument in which the political leaders of ,A&%,3= agreed in principle to establish the anticipated &egional Gupreme ,ourt. This ,ourt will be called the ,aribbean ,ourt of :ustice. %t will be the final ,ourt of Appeal of the Gtates who ratify the agreement. Therefore the -ri!y ,ouncil will be replaced. >hether the court will come into being depends on whether appeals to the -ri!y ,ouncil are abolished. The go!ernments of the region will need special parliamentary majorities or public appro!al in order to do this. +arbados and :amaica ha!e recently ratified the Agreement at the #4 th =eeting of the ,onference of Leads of *o!ernment of the ,aribbean ,ommunity (5. 3nly +arbados, *uyana and :amaica seem to be in the position 8 to carry out the necessary reform for the abolition of the appeals to the -ri!y ,ouncil. ( +ut there is still opposition to the abolition of the -ri!y ,ouncil within the ,aribbean ,ommunity. +ut the Agreement reDuires only three ,ontracting -arties in order for it to enter into force. Antoine feels that the court will be established before there is unanimous agreement by ,A&%,3= (#. %f a
188 189
%n the future this motion will be made to the ,aribbean ,ourt of :ustice Op cit, Antoine, p # ( 190 # H K :uly #55$ =ontego +ay :amaica 191 Op cit, Antoine, p ##I 192 4bid #ontego &ay Community College
,ontracting -arty wants to lea!e, a notification period of three years is reDuired, so it will be difficult to lea!e the court. -resently the :udicial ,ommittee of the -ri!y ,ouncil is the final ,ourt of Appeal in the ,ommonwealth ,aribbean e0cept in *uyana ($. The Constitution H The bench of the ,aribbean ,ourt of :ustice will comprise of an odd number of judges H not more than nine and no less than fi!e. A -resident will head it. Leads of *o!ernment can change the number of judges that can sit in the court (4. %t has been decided that the court will be based in +arbados. +ut if circumstances reDuire it, the court can sit in the territory of the ,ontracting -arty. The court may also sit in two di!isions comprising of at least ten members. The appointment, remo!al and discipline of judges is the responsibility of the specially created Legal Ger!ices ,ommission. %t will also determine their terms and conditions of ser!ice. 3nly a Dualified majority of three?Duarters of the ,ontracting -arties, in conjunction with the recommendation of the Legal Ger!ices ,ommission can appoint or remo!e the -resident. To be appointed, persons will ha!e had to be a judge for fifteen years in a court of unlimited jurisdiction in the ,ommonwealth or ha!e distinguished themsel!es in practice for a similar period of time (K. 1urisdiction H The ,aribbean ,ourt of :ustice will ha!e original jurisdiction. +ut this will be limited to interpreting the ,haguaramus Treaty which established ,A&%,3= and laid down its< sphere of operation. The court will also ha!e Fall of the jurisdiction and powers possessed in relation to that case by the ,ourt of Appeal of the ,ontracting -arty from which the appeal was bought (E. Appeals to the ,aribbean ,ourt of :ustice in respect of categories of appeal will be the same as the -ri!y ,ouncil<s. That is, there will be appeals: 'i) 'ii) 'iii) as of right" with lea!e" and those with special lea!e.
The nature and substance of the court<s jurisdiction will also be similar to that of the -ri!y ,ouncil<s. %n ci!il proceedings if the matter in!ol!es a Duestion of great or general importance, an appeal will lie with lea!e from the ,ourt of Appeal of
193
This was abolished under the :udicial ,ommittee of the -ri!y ,ouncil 'Termination of Appeals) Act ' (I5) 194 The Agreement, Article %M, O $ 195 4bid, Article %M 196 4bid, Article M #ontego &ay Community College
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the ,ontracting -arty. %n either criminal or ci!il matters appeals will lie with special lea!e of the ,aribbean ,ourt of :ustice from any decisions of the ,ourt of Appeal of a ,ontracting -arty. ,ontracting -arties will be permitted to allow other categories of appeals in Fsuch other cases as may be described by law of the ,ontracting -arty (I. T4 P-&:5 C$.'#&l became our final ,ourt of Appeal because of colonialism. The ,ourt is based in /ngland. /!en though most countries in the ,aribbean are independent, the -ri!y ,ouncil retains its< jurisdiction in the ,aribbean, but the nature of it has changed. Although there is pro!ision for this, few >est %ndian judges are appointed to the -ri!y ,ouncil. The -ri!y ,ouncil<s jurisdiction as the final ,ourt of Appeal is !ery restricted. There are two ways to appeal to the -ri!y ,ouncil. Uou can either get lea!e to appeal from our local ,ourt of Appeal or from the -ri!y ,ouncil if the local court has refused and there are no pro!isions made for an appeal. The grounds for appeal to the -ri!y ,ouncil are laid out in the constitutions of the commonwealth ,aribbean (J. %n ci!il matters appeals are a!ailable as of right pro!ided the amount in dispute is of the prescribed !alue or e0ceeds the states statutory limit or where the !alue of the disputed property is of the prescribed !alue. %f the matter is ci!il or criminal but in!ol!es a Duestion of constitutional interpretation, the right of appeal will be Fas of right<. The appeals are not limited to final judgments. %nterlocutory judgments can be appealed as well pro!ided the statutory monetary limit is met. Appeals concerning di!orce are also Fas of right<. There can also be appeals from industrial courts ((. %n ci!il proceedings if there is a Duestion, which is one of great general public importance or otherwise ought to be submitted to Ler =ajesty in ,ouncil for decision#55, the local court has the discretion to grant an appeal to the -ri!y ,ouncil. %n addition to this, special lea!es of appeal are a!ailable to the -ri!y ,ouncil. This is because of the Go!ereign<s prerogati!e in either ci!il or criminal cases or where lea!e has been refused. %n instances where fundamental constitutional rights or freedoms ha!e been !iolated 'these are entrenched rights), there is a right of appeal #5 to the -ri!y ,ouncil. The -ri!y ,ouncil is generous with respect to jurisdiction when it comes to constitutional issues, as there are no strict reDuirements for lea!e to appeal.
197 198
4bid, Article 1% 'd) and 1 #'b) :amaican ,onstitution s. 5 199 Sunday Horkers )" Antigua (otel Tourist Association A ((#B 4# >%& 4K 200 :amaican ,onstitution s. 5 201 Lowe!er the should be noted that the -ri!y ,ouncil uses this discretion sparingly. As a matter of fact the -ri!y ,ouncil has often itself limited the e0ercise of its appellate jurisdiction #ontego &ay Community College
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+ut the indi!idual must first e0haust his local alternati!es. Lowe!er no right of appeal lies in certain cases, such as those relating to electoral disputes #5#. Additional rights of appeal may be prescribed by the legislatures of all jurisdictions. *elf5limits on #urisdiction H The -ri!y ,ouncil often limits its< e0ercise of its< appellate jurisdiction. Gome e0amples are: . %t uses its< discretion to grant lea!e in criminal matters sparingly. %t will not grant lea!e unless there is a !iolation of due process or some other gra!e miscarriage of justice.#5$ %f there is a clear departure from the reDuirements of justice it will e0ercise its jurisdiction.#54 The -ri!y ,ouncil will grant special lea!e if there are Duestions of great and general importance, which are li.ely to occur often. %n $eid )" $+18, identification e!idence in :amaican capital offences was freDuently misused. After se!eral years of lobbying, the -ri!y ,ouncil was finally con!inced that the issue was important and freDuent enough to be addressed. The -ri!y ,ouncil will not act as the ,ourt of 7irst %nstance. Go if e!idence or a point of law was not heard in the lower court, it will not grant lea!e to hear them.#5E The -ri!y ,ouncil does not re!iew facts or e!idence, because it does not benefit from the presence of witnesses, nor is it familiar with the circumstances of the local courts.#5I The -ri!y ,ouncil does not change the amount of damages awarded by the local courts.#5J
#. $.
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,onseDuently it would not be true to say that the -ri!y ,ouncil operate as a full appellate court.
202 203
$ussell et al )" A5 ' ((I) # ,arib L+ $e /illet ' JJI) # A, 4K(, -, 204 $iel )" $ ' JJK) 5 A, EIK 205 A (J(B $ All /& $45" A (J(B $I >%& $4E 206 &aker and Another )" $ A (IKB #$ >%& 4E$ #5I :ohn and 3thers !. 2-- for 2ominica A (JKB $# >%& #$5 #5J Sel)anayagan )" UH4 A (J$B $4 >%& #EI
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%amily Court The :udicature '7amily ,ourt) Act (IK of :amaica #5( created the 7amily ,ourt. This court has jurisdictional powers o!er all legal proceedings in relation to family life. Lowe!er it does not hear di!orce cases. The 7amily ,ourt is the first of its .ind in the region. +eliCe and Gt. Mincent ha!e followed suit, but the idea has not ta.en root in the remainder of the ,ommonwealth ,aribbean. The court<s jurisdiction depends on the priority gi!en to the court and the nature of the problem. Gome courts ha!e summary jurisdiction and others are Guperior ,ourts of &ecord. 7or e0ample some family issues may be crucial to a country so a superior court may be chosen. The 7amily ,ourt was needed because laws were inadeDuate when it came to realities such as concubinage and illegitimacy. 3ur jurisprudence has attempted to reflect the needs of the >est %ndian family, for e0ample the concept of illegitimacy has been abolished, but more reform is needed. The 7amily ,ourt has an ob!ious sociological thrust. # 5 The aim of the court is to pre!ent the brea.down of the family unit. %t particularly see.s to protect children as well as other family members. %f this does not wor. the court tries to administer family laws and to Duic.ly rehabilitate those who see. help. 7amily court personnel are specially trained. This is to help them to understand the functions and the roles of this coordinated unit 'the court wor.s in conjunction with the support ser!ices). ;on?legal staff is trained in legal procedure and legal staff is gi!en a sociological orientation. The court coordinator who is the court<s administrator heads the non?legal staff. %n :amaica the 7amily ,ourt is an intermediate court, therefore it has eDui!alent status to a resident magistrate<s court. ,onseDuently the two judges ha!e the same status as the resident magistrate. %n Gt. Mincent O +eliCe the court is eDui!alent to the magistrate<s court. >ith necessary adaptations, the procedures of the resident magistrate<s court apply to the family court. ;ow, in :amaica, the 7amily ,ourt is a ,ourt of &ecord by !irtue of s. $' ) of the :udicature '7amily ,ourt) Act (IK. The court<s jurisdiction is not entrenched, because this will lea!e room for future change in the court<s jurisdiction. Acts such as the following gi!e the court e0press jurisdiction in the matters the Acts address: 'i) 'ii) 'iii)
209 210
Affiliation Act ' (#E)" ,hildren 'Adoption of) Act ' (KJ)" and ,hildren '*uardianship and ,ustody) Act ' (KI)
As re!ised the ((K Act, which establishes the 7amily ,ourt as a ,ourt of &ecord Op cit, Antoine, p #K(
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1uvenile Courts %n the ,ommonwealth ,aribbean ju!enile courts tend to be courts of summary jurisdiction that specifically hears charges against children or young people. The philosophy is that the children who are tried by the court should not be !iewed as criminals but as people who need help and guidance. The court tends to loo. into the welfare of these children. The court also tries to address the problem of street children or those who just need care. :u!enile courts wor. in tandem with certain social institutions such as the -robation 3ffice and Gocial >elfare 2epartment. The jurisdiction of the court encompasses three main groups: 'a) 'b) 'c) ju!enile offenders" ju!enile offenders in need of care and protection" and ju!eniles deemed to be beyond control#
There are special procedures for arraigning and trying ju!eniles who commit offences. They cannot be ta.en before a magistrate for instance. :u!eniles are imprisoned only in e0ceptional circumstances. Learings are informal, because the aim is to assist the ju!enile. %n :amaica, ju!enile courts are headed by a resident magistrate as chairman and two justices of the peace, usually one of whom is a woman. The court sits in different parishes as often as necessary, usually once per wee.. :u!enile courts usually sit in a separate building from the ordinary courts of law. :u!enile hearings are heard in camera# #.
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T4 =.0&#&a-5 ; =.-&!0&#(&$' +ecause of the doctrine of the Fseparation of powers< the independence of the judiciary is embedded in the constitutions of the ,ommonwealth ,aribbean. Another facet of the doctrine is the jurisdiction of the judiciary. Pnder the doctrine: .
211 212
the court<s monopoly of judicial power is protected" also
Op cit, Antoine, p #E$ 3nly authorised persons are allowed into sessions, the public is e0cluded 213 -ersonnel, jurisdiction and procedure are loo.ed at when considering each court conseDuently heading 4'%%) focuses only on the jury and judicial jurisdiction #ontego &ay Community College
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the jurisdiction of specified courts is also protected.
The court<s monopoly of judicial power is a part of constitutional law in :amaica 'and so the remainder of the ,ommonwealth ,aribbean). This was so found in the case of (inds ) $. This case decided that only a court can e0ercise judicial power. Apart from this it should be noted that a court needs to be established according to the pro!isions of the constitution or rele!ant statute in order to be lawful. :ust because a judge acts in his official capacity does not necessarily mean that he is e0ercising his judicial function # 4. 7or the legal system to administer justice judiciary must be independent. This means that there must be the institutional independence of the court and that there must be security of tenure. Galaries and allowances are e0pected to be generous in order to ensure independence and impartiality. :udges are also free from ci!il and criminal actions for anything said or done while on the bench, e!en if it seems to be without cause. The constitutions of the region pro!ide for the appointment, tenure and remo!al of judges. 7or e0ample the :amaican constitution establishes a Gupreme ,ourt, which is headed by a ,hief :ustice as well as senior puisne judges# K. A ,ourt of Appeal is also established which is headed by a -resident, ,hief :ustice and three other judges it also ma.es pro!isions for the appointment of other judges as may be prescribed by -arliament# E. The arrangement of the wor. of the court is the responsibility of the -resident of the ,ourt of Appeal" whene!er he is sitting in that court he will preside# I. %n the ,ommonwealth ,aribbean the ,hief :ustice and puisne judges are appointed by the Lead of Gtate i.e. the *o!ernor *eneral 'or -resident if the territory in a republic). The -rime =inister recommends them for the posts after consultation with the Leader of the 3pposition. The reDuired Dualification of judges will be found in the !arious Gupreme ,ourt of :udicature Acts of the region. Psually they need to be a legal ad!ocate of at least ten years standing. :udges may be remo!ed for misconduct, corruption and infirmity. 3nly a :udicial ,ommittee can remo!e a judge, but first there must be an in!estigation by a tribunal of two or more persons# J. T4 =.-5 S5!( %
214 215
Hilliams et al )" The Jueen A ((IB # ,arib L+ IK, -, :amaica :amaican ,onstitution s. (I' ) O '#) 216 :amaican ,onstitution s. 5$' ) O '#) 217 4bid 218 &arnwell )" A5 and Another A (($B 4( >%& JJ #ontego &ay Community College
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Trial by jury is a fundamental element of democracies. %t is a way of ensuring that the justice system is fair. %t used to be !iewed as the cornerstone in the administration of common law but now its< use is on the decline. >hether or not a jury is used depends on whether the matter to be tried is ci!il or criminal. %f is criminal it will depend on whether it is an indictable or summary offence. A jury is composed of twel!e members in murder and treason trials. %n ordinary criminal and ci!il matters the jury consists of nine. The purpose of the jury is to judge facts as opposed to law. %n contemporary times, we belie!e that to be judges of fact, one must come to court ignorant of the facts. %mpartiality in adjudicating is therefore based on ignorance of the facts.# ( Go if any juror has .nowledge of the facts he must state these publicly. There is no absolute right to trial by jury e0cept in relation to indictable offences. Lowe!er, +ermuda and the +ahamas ha!e made trial by jury a constitutional right##5. This right pertains to criminal cases triable in the Gupreme ,ourt. The use of juries in ci!il cases has declined rapidly. Trial by jury is a!ailable ## but seldom used. %t is in the judge<s discretion whether a jury should be used, e0cept in defamation or fraud. TTTTTTTTTTTTTTTTTTTTT S(.0 '(! a- &'!(-.#( 0 ($ - a0 C4a1( - S&)( ' $/ R$! ;Ma-& B ll 8! A'($&' 8! C$%%$'w al(4 Ca-&** a' Law a'0 L 2al S5!( %!.
219 220
Op cit, Antoine, p #I Pnder the ,onstitution of the +ahamas, s. #5'#) 'g) and the +ermuda ,onstitution 3rder s. E'#) 'g) 221 /0cept in Gt. Lucia and *uyana #ontego &ay Community College
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"ndustrial Courts %ndustrial ,ourts or %ndustrial Tribunals deal with the determination of industrial relation matters. %n :amaica industrial tribunals are separate Duasi?judicial bodies. Trinidad and Tobago has an %ndustrial ,ourt ###. The court is a Ligh ,ourt or Gupreme ,ourt of &ecord, it has jurisdiction to try all labour law matters ##$. Appeals go straight to the ,ourt of Appeal ##4. 3ne of the reasons this court was de!eloped is, ordinary courts are not !iewed as appropriate for handling labour relation matters H wor.ers6unions ne!er seem to do well. Listorically wor.ers unions ha!e been regarded as restraining trade and promoting criminal conspiracy. ,onseDuently the orientation of industrial courts is uniDue. They operate by the Fprinciples and practices of good industrial relations<" this principle is un.nown in other areas of law. Luman relations are paramount in these courts6tribunals. ;egotiations are more important than legal techniDue 'conseDuently not all personnel is legally Dualified). +ut they are e0pected to consider the eDuitable principle of Fgood conscience< when e0amining the merits of a case. The court<s personnel do not consist of solely legally Dualified people. /conomists, accountants and personnel who ha!e e0perience in industrial relations, such as trade unionists, staff it. The court usually only assumes jurisdiction if conciliatory tal.s ha!e failed and conciliatory legislation has been e0hausted. The court also registers collecti!e agreements. *ervice Commissions 3ther tribunals that ha!e been established are the se!eral Ger!ice ,ommissions e.g. the -ublic Ger!ice ,ommission, the Teaching ,ommission, the -olice Ger!ice ,ommissions to deal with inter alia the discipline of the respecti!e category of public ser!ants under their control. >here there is national insurance as in Trinidad and Tobago, there is a ;ational %nsurance Appeals tribunals to settle disputed claims for such insurance.##K
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222 223
/stablished under the %ndustrial &elations Act (I# 4bid, s. I 224 Sundry Horkers )" Antigua (otel and Tourist Association A ((#B 4# >%& 4K 225 This paragraph was ta.en from the notes prepared by ,1, #ontego &ay Community College
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EF a process of constitutional re!iew began in (( with the formation of a :oint Gelect ,ommittee on ,onstitutional and /lectoral &eform, charged with recommending Fthe precise form and content of constitutional amendments both with regard to an /lectoral ,ommission and other aspects of reform<. After a series of meetings and after considering a proposal from the Leader of the 3pposition for the establishment of a ,onstituent Assembly to frame a new constitution the :oint Gelect ,ommittee recommended that -arliament should establish a ,onstitution ,ommission to e0amine proposals from Fthe public as well as to initiate discussions on pints raised by its own membership<. The ,ommission was duly appointed under the chairmanship of =r. :ustice :ames @err H a distinguished legal luminary H whereupon -arliament in 7ebruary ((# suspended the wor. of the :oint Gelect ,ommittee. The ,ommission in turn con!ened $E meetings, hosted $ consultations which were held in each of the parishes. %t recei!ed #( submissions from indi!iduals and organisations. 'The commission will be referred to hereafter as Fthe @err ,ommission<.) =eanwhile, in Geptember (($, the Genate has appro!ed the appointment of a select committee and on K 3ctober (($ the Louse of &epresentati!es had ta.en a similar step. +oth committees were charged jointly to recommend to the legislature the precise form and content of a re!ised constitution and they began wor. on #I 3ctober (($ when they selected Genator 2a!id ,oore S,, a renowned jurist who was -resident of the Genate, as their chairman. The :oint Gelect ,ommittee was to be re?appointed with the same membership following a prorogation of -arliament in April ((4. %t duly considered the !oluminous recommendations of the @err ,ommission and e!entually submitted its report to -arliament in =ay ((K. Although the :amaican ,onstitution has not up to the time of writing ':anuary #55#) been re!ised on the basis of the Gelect ,ommittee<s recommendations, the research and well considered proposals it has published ha!e been a!idly studied in the other territories of the ,aribbean area H and especially in those jurisdictions which ha!e, li.e :amaica, been engaged in re!iewing their own constitutions. >e must now address some of the more pertinent recommendations made and consider how they ha!e influenced other constitution ma.ing. F Citi6ens .rotection 0ureau %n considering how to ensure that citiCens whose rights are infringed secure proper redress, the :amaica :oint Gelect ,ommittee realised that many such persons lac. the means of financing proper legal representation. %t was also realised that the ombudsman was effecti!e only in
I5
dealing with complaints arising from administrati!e action and that the office was powerless to enforce recommendations made. To meet those concerns, the Gelect ,ommittee recommended the establishment of a -arliamentary ,ommission to be .nown as the ,itiCen<s -rotection +ureau, the Lead of which would be the public defender. This bureau, which has now been established, has two functions: 'a) it replaces the ombudsman, but in addition to the powers pre!iously e0ercised by that officer the public defender can compel compliance with its decisions and in a proper case can e!en ma.e recommendations for disciplinary action" and it ensures that complaints alleging infringement of citiCen<s rights are pro!ided with ready access to professional ad!ise and, where necessary, legal representation.##E
'b)
Already Gt. @itts and ;e!is is considering the inclusion in their new constitution of a public defender: the -hillips ,ommission ha!ing recommended, accordingly, after studying the :amaica proposals. *ervice commissions The :oint select ,ommittee recommended that the siCe of the membership of the :udicial Ger!ice ,ommission should mo!e from si0 to nine members and three members would be members of the non?legal or non? judicial public ser!ice. The -ublic Ger!ice ,ommission<s nine members will be H two selected from a panel of fi!e nominated by the ,i!il Ger!ice Association, one from a panel of three nominated by the -ermanent Gecretaries +oard" si members appointed by the Lead of Gtate either:
'i) 'ii) acting on the ad!ice of the prime =inister after he has consulted the Leader of the 3pposition 'this being the #a-ority opinion)" or after consultation with the -rime =inister and the Leader of the 3pposition 'this being the opinion of the =inority).##I
The -olice Ger!ice ,ommission is to be appointed by the Lead of Gtate after consultation with the -rime =inister and the leader of the 3pposition" the appointments to be subject to parliamentary confirmation. The recommendation is for an increase in the membership from fi!e to se!en. The :oint Gelect ,ommittee felt that these additional two members should be appointed at the
226 227
-ublic 2efender '%nterim) Act, E April #555, ss. $, 4 and K 7inal &eport of the :oint Gelect ,ommittee ' ((K), paras $$ H $4
discretion of the Lead of Gtate, while the @err ,ommission felt they should be selected from professional, philanthropic, religious and other organisations.F##J (&:) Al( -'a(&: D&!1.( R !$l.(&$' (ADR)" /$- )a%1l " A-*&(-a(&$'" C$'#&l&a(&$' a'0 M 0&a(&$'. (E%14a!&! !4$.l0 * 1la# 0 $' M 0&a(&$'). Al( -'a(&: D&!1.( R !$l.(&$' The components of alternati!e dispute resolution 'A2&) mechanism are arbitration, conciliation and mediation. They can all replace court procedure for any subject area, but they ten to be used in commercial and labour law. Arbitration conciliation and mediation describe processes whereby two or more parties in a dispute attempt to reach a consensus without resource to the courts in an en!ironment of compromise.##( A third party facilitates the process. A2& allows parties to bargain 'or try to) in good faith without being bound by strict rules of procedure. %t is not the rules which will determine the outcome of A2&, it is the strength of anyone party. %n the ,ommonwealth ,aribbean, arbitration tends to be used in labour law matters. -rbitration Arbitration is conducted in a less formal way than con!entional trials. The arbitrator listens to the e!idence submitted by the parties and then ma.es a decision in the form of an arbitration award. This award may be binding or non? binding H this will depend on what the parties would ha!e agreed in ad!ance. ,ediation =ediation is non?ad!ersarial and pri!ate. %t occurs where one or more neutral persons attempt to facilitate discussions, which will lead to the !oluntary settlement of the dispute. After opening statements by all parties the mediator will meet with the parties separately in pri!ate 'called a pri!ate caucus). Le will try to e0plore !arious options with them, and help to draw up a set of terms, which all the parties can agree to in a binding settlement agreement. ,ediation7arbitration ( sometimes called med5arbs The parties initially attempt to resol!e their disputes through mediation. %f agreement is not reached by a predetermined date usually not more than two to three months from the date of submission, the dispute is submitted to arbitration before the same or different neutral as the parties ha!e agreed. #$5
228
-hillips, 7. Gir. '#55#) Commonwealth Caribbean Constitutional Law . *reat +ritain: ,a!endish -ublishing Ltd, pp #KK H #KE, #K( H #E5 229 Op cit, Antoine, p $ ( 230 +ritton, -. Alternati!e 2ispute &esolution, (((, % *uy L. &. 5J #ontego &ay Community College
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Conciliation ,onciliation is in?court A2&, which in!ol!es a judge. %t is li.e mediation. The conciliation process may be described as one where a judge is used by the parties to reach settlement in a ci!il dispute before filing a ci!il action by ma.ing recommendations, which are not binding on the parties. ,onciliation usually has a less formal structure than mediation. :udges in this form of A2& do not necessarily remain impartial, they may ta.e a !iew that is inimical to one parties< position. The judge may conduct the conciliation process as he or she thin.s fit, but will be guided by the principles of impartiality, eDuity and justice. ,onciliation is informal and left to the judge<s discretion. %t is not open to the public and the parties are usually heard indi!idually #$ . 3nly in e0ceptional case are both parties summoned together. %f settlement is reached it will be reduced to writing in the form of a conciliation summary, agreement or order. %f it is signed by the disputants it is entered thus ha!ing the effect of a final court judgment. #$# %f there is little hope of conciliation the judge will formally terminate the process. -dvantages and disadvantages Ad!antages: 'a) 'b) 'c) 'd) 'e) 'f) 'g) lac. of formality H which could lead to speedy disposal and resolution of the dispute and it<s causes, by agreeing to rela0 the rules of e!idence cost H the process sa!es on time so costs are reduced" lac. of pleadings H reduces time, costs and formality" the parties ha!e greater control H they can chose arbitrators" the parties are the focus of the process so there is a lesser chance of technical injustice" confidentiality H disputes are resol!ed in pri!ate" speed H the use of e0perts in comple0 legal and technical issues sa!es time" and
231 232
To a!oid hostility and to create an atmosphere conduci!e to compromise Arocho?Goto, A. ,onciliation of ,i!il 2isputes in the Territorial ,ourts of the 'PG) Mirgin %slands, A Mestige of the 2anish -resence in the ,aribbean, (((. Mol. ;o. *uy L. &. p I4 #ontego &ay Community College
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preser!ation of relationships H process is informal so it lac.s the animosity of the ad!ersarial system"
2isad!antages: 'a) 'b) 'c) 'd) 5. the right of re!iew is limited H this depends on the rules of the jurisdiction and what the parties had pre!iously decided" if delay is not controlled it can get out of hand" possible conflict of interest H may arise in choice of adjudicators, the process must be transparent and fair" and some results are not binding and could lead to further litigation. T4 l 2al 1-$/ !!&$': (-a&'&'2" 0&!#&1l&' a'0 -$l $/ law5 -!.
Training The ,ouncil of Legal /ducation o!ersees legal education in :amaica. The usual course of training is completed in two stages. 7irst a prospecti!e lawyer must obtain an academic degree in Law. This course usually ta.es three years, but completed in two. The first year is pursued at the Pni!ersity of the >est %ndies 'P>%) =ona, :amaica and the remainder at ,a!e Lill, +arbados. The degree is a prereDuisite for the Legal /ducation ,ertificate otherwise .nown as Fthe +ar<. This is the final stage of classroom training. This part of Dualification is !ery practical the e0ams sat are professional, and will test students on matters they will ha!e to deal with in practice. /iscipline The legal profession in :amaica is self?regulatory. The +ar Association is responsible for, amongst other things, disciplining lawyers #$$. Lawyers can be pre!ented from practicing 'debarred) for !ery gra!e offences, such as defrauding a client. P-$/ !!&$'al M&!#$'0.#( &' (4 E'2l&!4 S1 a+&'2 Ca-&** a' An attorney may commit professional misconduct by failing to 8 fulfill his duty, in promoting in his own sphere of interest, the cause of justice. #$4
233
%n :amaica, the term Flawyer< or Fattorney?at?law< means the same thing. According to The Legal -rofession Act ' (I#) s. # any reference to a barrister or solicitor is deemed to be a reference to an attorney?a?law. %n the /nglish Legal Gystem there are two types of lawyers 'barristers and solicitors) in :amaica there is only one type 'an attorney?at?law), who does the wor. of a barrister and a solicitor. This is as result of Ffusion<, which occurred in (I(. 234 ;uneC H Tesheira, @. '#55 ) The Legal Profession in the English @ Speaking Caribbean . :amaica: The ,aribbean Law -ublishing ,ompany, p JI #ontego &ay Community College
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%n the Trinidad and Tobago case, 4n the matter of 5ail $obinson and &e)erly Scobie* Solicitors and 4n the #atter of the 4nherent ?urisdiction of the Court , it was noted that:
Unprofessional conduct is not limited to cases where the misconduct charged amounts to an indictable offence+.8 or is professional in character but e tends to all cases where the solicitor's conduct is improper i"e" such as to render him unfit to be an officer of the court +.9
The standards of professional conduct in :amaica is go!erned by the Legal -rofession ',anons of -rofessional /thics) &ules. %t is prescribed by the *eneral Legal ,ouncil pursuant to the pro!ision of section #'I) of the Legal -rofession Act (I . The Legal -rofession ',anons of -rofessional /thics) &ules go!erns and regulates the standards of professional conduct e0pected of attorneys H at H law. 3ther /nglish spea.ing ,aribbean territories ha!e similar ,odes6,anons of /thics. 3nly *uyana does not ha!e prescribed rules of conduct. Lowe!er this does not mean that attorneys are not e0pected to obser!e standards of professional conduct. The rules that ma.e up the ,odes6,anons of /thics of other /nglish spea.ing ,aribbean territories, are deri!ed from common law principles. The ,anons6,odes of /thics are just codifications of these principles. Therefore the guidelines pro!ided by common law principles are just as applicable in *uyana. The ,ode6,anon of /thics pro!ide 8 in effect that specific breaches of the rules contained therein shall constitute professional misconduct and more specifically an attorney who commits such breaches shall be liable to any of the penalties which the 2isciplinary ,ommittee and or the court is empowered to impose.#$I The standard of conduct e0pected from an attorney is high. Therefore e!en though an attorney may do something that is not automatically punishable as professional misconduct, he may still be penalised. 7or instance ,anon % 'b) of the ,ode of /thics states that:
An attorney shall at all times maintain the honour and dignity of the profession and shall abstain from beha!iour which may tend to discredit the profession of which he is a member.
235
The classification of offences as indictable and summary broadly reflects a distinction between serious and minor crimes. 7or practical purposes it is the Duestion of trial with or without a jury which is the important distinction between trial on indictment and summary trial. 3ffences triable only on indictment include any offence punishable by death or imprisonment for life on first con!iction 236 L,A ;o. # of (JK Trinidad O Tobago 'unreported) at p #4 237 4bid, ;uneC H Tesheira, p JI #ontego &ay Community College
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B- a#4 ! $/ D.(5 C$'!(&(.(&'2 P-$/ !!&$'al M&!#$'0.#( %t should be noted at the outset that there is a duty on e!ery attorney to report improper or unprofessional conduct by a colleague to the Law6+ar Association or other appropriate tribunal sa!e where the information relating to improper or unprofessional conduct is recei!ed in professional confidence. #$J 1. B- a#4 $/ D.(5 ($ S(a( a'0 P.*l&#
An attorney is guilty of professional misconduct if he ad!ises or assists in the !iolation of the laws of the state. The duty to the state and public is also breached if an attorney enters into a partnership concerning the practice of law with non H Dualified bodies or persons. The attorney will also be guilty of professional misconduct if he holds a person as a partner, associate consultant or attorney H at H law, when that person is not Dualified. 6. B- a#4 $/ D.(5 ($ (4 C$.-(
An attorney is an officer of the court. Therefore an attorney is under a duty to help in the administration of justice. Le is e0pected to be respectful to the court and to a!oid undignified or discourteous conduct, which is degrading to the court. Gome e0amples of breaches of the duty to the court are: i. ii. deliberately ma.ing false accusations against a judge or magistrate" writing letters to the court which are improper, abusi!e or threatening that are meant to influence the judge 8 to adopt a cause he would not otherwise pursue#$(" deliberately acting without authority" .nowingly and deliberately allowing a client to swear to an affida!it which is false" attempting to influence the court by e.g. pri!ately discussing a pending case with the presiding judge#45" .nowingly submitting in court a document that has not been properly stamped as reDuired by the rele!ant law"
iii. i!. !. !i.
238 239
4bid, ;uneC H Tesheira, p JJ 4bid, ;uneC H Tesheira, p J( 240 4bid #ontego &ay Community College
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deliberately ma.ing a bad point in order to mislead the court. The attorney only becomes guilty of professional misconduct if he acted dishonestly" ta.ing part in the creation of e!idence .nown to be false and using perjured e!idence or testimony" and ma.ing unfair remar.s to the jury, using improper e!idence, using irrele!ant e!idence. B- a#4 $/ D.(5 ($ Cl& '( I' G ' -al
An attorney is under a duty to always act in the best interest of his client, to represent him honestly, competently and Cealously and endea!our to obtain the benefit of any and e!ery remedy and defence which is authorised by law.#4 7or instance in Sankar )" The State+2+, a Trinidad and Tobago case, the -ri!y ,ouncil found that a defence lawyer had failed in his duty, because he had not e0plained the legal implications of gi!ing or failing to gi!e e!idence at trial. Le had failed to gi!e options to the client, e!en if he, depending on his client<s decision, would feel obliged to withdraw. Another general duty of an attorney relates to his acceptance of a retainer. An attorney will be guilty of professional misconduct if he attempts to ad!ise, before he has obtained full .nowledge of the facts. Le should therefore a!oid ma.ing bold assurances and beware of rash and confident guarantees especially when his employment depends on these assurances. #4$ This means that an attorney must be candid with a client about the li.elihood of failure or success. Le must not allow his client to embar. on useless litigation, particularly when the prospects of success are non?e0istent. %t should be noted howe!er that clients are free to reject this ad!ice and insist on litigation. %n such circumstances an attorney H at H law will not ha!e acted improperly if he acts for a party who pursues a claim or defence that will ob!iously fail.#44 Lowe!er on the other hand, an attorney H at H law must not induce his client to settle against his wishes by misrepresentation. #4K
I' Pa-(&#.la241 242
4bid, ;uneC H Tesheira, p (5 4E >%& 4K# 243 ;orrester )" ;rancis ,L/ KE6 (J$ :amaica 'unreported) 244 $idehalgh )" (ansfield A ((4B ,h #5K 245 &artrum )" (opkinson ' ($ H $I) L&+* E( '*uyana) #ontego &ay Community College
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An attorney is inter alia guilty of professional misconduct !is?a?!is his clients in the following specific instances: (&) C$'/&0 '(&al&(5
>here he fails or neglects to preser!e the confidentiality of his client e0cept if such communication has been made in furtherance of a crime, fraud or other unlawful transaction. (&&) C$'/l&#( $/ I'( - !(
>here he acts in any manner in which his professional duties and his personal interest conflict or are li.ely to conflict. (&&&) M.l(&1l R 1- ! '(a(&$'
>here in the case multiple representation, he acts or continues to act where the interest of representati!es clients are li.ely to conflict or his professional judgement is li.ely to be impaired. (&:) F !
>here he charges fees which are unfair and unreasonable or where he charges fees which are either an o!er or under?estimate of the ser!ices rendered. (:) D.(5 ($ E) -#&! Ca- a'0 S+&ll
An attorney is under a general duty to act e0peditiously in dealing with his client<s matters and to bring to the discharge of his duties thereunder, the necessary degree of s.ill, competence and .nowledge. %n failing to e0ercise due care and s.ill in the conduct of his duties an attorney may be guilty of professional misconduct. This =isconduct may, depending on the facts of the case, be compensatory or puniti!e in nature.#4E (a) P-$/ !!&$'al M&!#$'0.#( $/ a C$%1 '!a($-5 Na(.- 9 Wa!( 0 C$!(! &' P-$# 0&'2!
%f a lawyer, whether acting as a solicitor or barrister, will be guilty of professional misconduct if costs are needlessly incurred or wasted. This may be as a result of failure and default to act competently and6or within a reasonable time. %n situations li.e this the court ma.es an order of costs against the attorney personally. %n cases li.e this the court does not e0ercise a puniti!e jurisdiction o!er the offending attorney.
246
4bid, ;uneC H Tesheira, pp ( ? (#
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.rofessional ,isconduct of a .unitive Nature
Although there is some !ariation in the actual wording, the respecti!e ,ode6,anon of /thics of the !arious territories, pro!ides that an attorney H at H law shall not act with unreasonable or undue delay, negligence or neglect and in the case of :amaica, ine0cusable or deplorable negligence or neglect #4I.#4J Guch action constitutes professional negligence and may also constitute professional misconduct. %n the case of professional misconduct, a competent tribunal or the court may e0ercise its puniti!e jurisdiction. This is a mandatory rule. %t is important to remember that negligence 8 might amount to professional misconduct if it was ine0cusable, and such as to be regarded as deplorable8 #4( by other lawyers.#K5 %t used to be thought that professional negligence could not constitute puniti!e professional misconduct unless the lawyer<s actions were dishonourable or morally base. 7or instance in Hitter )" ;orbes#K , an attorney negotiated on behalf of his client with ,itiban., who was owed :AV K,555.55 by the former. %n a letter addressed to the client, dated :anuary #I, (I(, ,itiban. proposed a settlement. The attorney did not communicate this proposal until 3ctober (J5. -roceedings were brought before the *eneral Legal ,ouncil for professional misconduct. 3ne of the grounds of compliant was the breach of ,anon %M 's) which states that an attorney shall not act with ine0cusable or deplorable negligence or neglect. %t was argued that professional misconduct had to in!ol!e an element of wrongdoing, deceit or moral turpitude. %t was held that ,anon %M 's) had been infringed. %t was pointed out that ,anon %M 's) did not reDuire the attorney<s negligence to in!ol!e dishonourable conduct or moral turpitude.
(:&)
F-a.0GM&!a11-$1-&a(&$' $/ Cl& '(8! F.'0!
247 248
,anon of /thics %M 's). Gee also ,anon %M 'r) 4bid, ;uneC H Tesheira, p (# 249 $e A Solicitor A (I#B # All /& J 250 ,anon of /thics %M 's) 251 ,A 6 (JE :amaica 'unreported) #ontego &ay Community College
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As a general rule, any form of fraud or dishonesty committed by an attorney against the interest of his client will be deemed to be professional misconduct. This includes misappropriation of clients< funds, failure to apply a client<s funds for the purpose for which it was intended, o!ercharging and failing to .eep proper accounts.#K# The ,odes6,anons of /thics of the !arious territories pro!ide that: 'i) 'ii) an attorney must ne!er mingle his funds with those of others, and that he should at all times be able to refund money he holds for others" and an attorney should .eep up to date accurate accounts so that his financial position and that of his clients can be distinguished when reDuired.
%t should be noted that the *eneral Legal ,ouncil of :amaica has pro!ided detailed guidelines for the .eeping of 8 client accounts etc, maintaining of boo.s of assets in respect of client<s money recei!ed, held or paid by the attorney and the payment of interest on client<s money. #K$ C. B- a#4 $/ D.(5 ($ P-$/ !!&$' a'0 F ll$w A(($-' 5!
I' G ' -al An attorney must beha!e towards his fellow attorneys with courtesy, fairness and good faith. An attorney should not allow the ill feelings of his clients to affect his relationship with his fellow attorneys. I' Pa-(&#.la(&) U'0 -(a+&'2!
Attorneys must fulfill obligations he has promised to e0ecute in any underta.ings#K4 to the court as well as to his fellow attorneys. +reach of an underta.ing constitutes professional misconduct as well as 'in appropriate instances) contempt of court.
(&&)
T$.(&'2 a'0 A0: -(&!&'2
252 253
4bid, ;uneC H Tesheira, p (4 4bid, ;uneC H Tesheira, p (K 254 An underta.ing is a pledge or promise made by an attorney H at H law in his professional capacity to do or refrain from doing some act. Although underta.ings may be gi!e orally, they should as a general rule be written or confirmed in writing - 4bid, ;uneC H Tesheira, KE #ontego &ay Community College
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Attorneys are not permitted to ad!ertise #KK. Lowe!er attorneys are permitted to allow dignified identification of themsel!es as attorneys. Therefore they are allowed to print calling cards, letterheads, office signs or directory listings. %t is also a breach of the ,anon of /thics to tout for custom #KE. Touting is soliciting for custom fraudulently. %t is illegal whether the attorney does it or is done by someone paid by him. %f an attorney pays or rewards someone directly or indirectly for getting him wor. he will be in breach of his professional duty. 5. C-&%&'al O// '# !
I' G ' -al >here an attorney commits a criminal offence which in the opinion of the ,ourt or other competent tribunal is of a nature li.ely to bring the legal profession into disrepute, the commission of the offence shall constitute professional misconduct. %n this regard, the offence must be of a personally disgraceful character, the commission of which would ma.e the attorney unfit to be a member of a strictly honourable profession.#KI All that is necessary for a finding of professional misconduct is that the attorney<s conduct brings dishonour to the profession generally. #KJ 3nce the ,ourt, 2isciplinary ,ommittee or other competent tribunal is satisfied about the facts constituting the crime it will not matter: i. ii. iii. if it is contended that the attorney was wrongfully con!icted" that the attorney was not prosecuted" and that the attorney was acDuitted on a technical defence.
7or instance in the case $e Bing#K( 8 an attorney was con!icted at first instance of conspiracy to defraud. 3n appeal the decision was re!ersed because the indictment was defecti!e. Ppon proceedings to stri.e him off the &oll of the ,ourt, 2enman ,: said: >e must not merely because the indictment is bad in point of law, shut our eyes to the fact that the jury ha!e con!icted him of conduct rendering him unfit to be an attorney. 7urther, it is necessary neither that the offence or crime be of a pecuniary nature nor that the attorney should ha!e been con!icted as a practising attorney. All that is necessary is that the offence brings dishonour to the profession generally.
255 256
,anon of /thics %% 'd) ,anon of /thics %M 'g) 257 4bid, ;uneC H Tesheira, pp (E ? (I 258 $e (ill ' JEJ) L& $ S+ K4$ 259 ' J4K) J S+ #( #ontego &ay Community College
I' Pa-(&#.la8i9 Offences involving %raud7/ishonesty
An attorney who has been con!icted of an offence in!ol!ing frauds or dishonesty will de facto be deemed guilty of professional misconduct in his capacity as attorney.#E5 Guch offences include bribery, forgery, ma.ing false affida!its, embeCClement, obtaining money by threats, bribery, frauds and conspiracy to per!ert the course of justice.#E 8ii9 Offences "nvolving "mmoral Conduct
This is a second class of cases in respect of which disciplinary sanctions may be imposed against an attorney. /0amples of such offences include .nowingly permitting premises owned by the attorney to be used as a brothel, acts of indecent assault and using threatening or abusi!e language intended to pro!o.e a breach of the peace.#E# P-$/ !!&$'al D&!#&1l&' : Pa-( I 9 P.'&(&: =.-&!0&#(&$' %f a lawyer breaches the accepted standards of professional conduct he will be subject to the disciplinary jurisdiction of the court and6or other competent tribunals. The disciplinary jurisdictions of these bodies are both puniti!e and compensatory#E$. %t is important to note that the court<s puniti!e jurisdiction o!er an attorney in disciplinary matters is completely different from the legal rights and remedies of a client or those that other aggrie!ed parties may ha!e against an offending attorney. Ta.e for instance Lord /sher<s point of !iew in $e 5rey#E4:
The court has a puniti)e and disciplinary -urisdiction o)er solicitors as officers of the court which is not e ercised for the purpose of enforcing legal rights but for the purpose of enforcing honourable conduct on the part of the court's own officers" That power of the court is >uite distinct from any legal rights or remedies of the parties and cannot therefore* be affected by anything which affects the strict legal rights of the parties"
>ith the e0ceptions of The +ahamas, :amaica and to a limited e0tent Trinidad and Tobago and Gt. Lucia, the court e0ercises a puniti!e jurisdiction o!er all lawyers. This means they can fine and suspend lawyers as well as stri.e lawyers of the &oll. The reason is in the ,aribbean, all attorneys are admitted to practice by the court.
260 261
$e Heare A J($B # S+ 4$( $e &lake ' JE5) / O / $4" Stephens )" (ill ' J4#) 5 = O w #J" $e Sinanan ' (E4) I >%& ($ 262 4bid, ;uneC H Tesheira, p (I 263 #yers )" Elman A (45B A, #J# at pp $ J ? $ ( LL 264 A (J#B # S+2 445 ,A #ontego &ay Community College
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E)( '( a'0 A%*&( $/ (4 C$.-(8! I'4 - '( D&!#&1l&'a-5 =.-&!0&#(&$' The court<s power to discipline an attorney, without referring to the rele!ant disciplinary tribunal was considered in the Trinidad and Tobago case of 4n the matter of 5ail $obinson and &e)erly Scobie and 4n the #atter of the 4nherent ?urisdiction of the Court+98. %n this case, two solicitors were called before the court to show cause why they should not be struc. off the &oll of ,ourt. The ;ational %nsurance +oard ';%+) was a client of the firm of which the two attorneys were partners. ;%+ had entrusted three million dollars to the firm. GubseDuently a case of wrongful con!ersion#EE was made against the two solicitors. 2eyalsingh : found that he had the right and duty as a judge of the Ligh ,ourt, to e0ercise the court<s inherent jurisdiction to discipline the two solicitors. Lis action was in response to the objecti!e of the legal representati!es from the 2isciplinary ,ommittee of the Law Gociety. 2eyalsingh noted that
The court's inherent -urisdiction in respect of solicitors cannot be disputed" 4t is the guardian of the good conduct of the profession and it is incumbent on the court to see that the conduct of its' officers is beyond reproach and punish those whose conduct is unbecoming of the officer" +9:
Trinidad and Tobago subseDuently codified this puniti!e jurisdiction of the court in s. 4# of the Legal -rofession Act # 6 (JE. The Legal -rofession Act of other territories ha!e also inserted an eDui!alent pro!ision, they are +arbados, Antigua O +arbuda, :amaica, Gt. Lucia and *uyana. Lowe!er @aren ;uneC H Tesheira writes that regardless of the court<s inherent jurisdiction 8 the proper course for the court to adopt, e0cept in the most urgent and e0ceptional cases, is for the judges to ma.e or cause the &egistrar to ma.e a report to the rele!ant 2isciplinary Tribunal where e!idence of misconduct is brought t it<s attention at the hearing of the matter or other proceedings in court.#EJ As a matter of fact s. #'#) of the Legal -rofession Act (I e0pressly pro!ides that:
At the hearing of a matter in which a ?udge considers that an act of professional misconduct or criminal offence has been committed by an attorney @ at @ law* he may make or cause the $egistrar to make an application to the Committee in respect of the attorney @ at @ law"
Antigua O +arbuda, +arbados, Trinidad and Tobago and Gt. Lucia all ha!e similar pro!isions in their respecti!e Legal -rofession Acts.
265 266
L,A ;o. #6 (JK Trinidad O Tobago 'unreported) >rongful con!ersion is A tort, committed by a person who deals with chattels not belonging to him in a manner inconsistent with rights of the owner H 3sborn<s ,oncise Law 2ictionary 267 L,A ;o. #6 (JK Trinidad O Tobago 'unreported) p. #4 268 4bid, ;uneC H Tesheira, p #5I #ontego &ay Community College
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Alternati!ely, the court could in cases where there is e!idence of criminal wrongdoing, report the matter to the office of the 2irector of -ublic -rosecution '2--)#E(. T4 E) -#&! $/ (4 C$.-(8! P.'&(&: =.-&!0&#(&$' &' =a%a&#a EBa--&!( -! -rior to (E5, the :udges of the Gupreme ,ourt, e0ercised e0clusi!e puniti!e jurisdiction o!er barristers. Lowe!er in (E5, The +ar &egulations Law, ,ap. #5 was enacted. This law established a 2isciplinary ,ommittee of the +ar Association comprising inter alia of the Attorney *eneral as an e officio+:1 member, and si0 barristers duly appointed by the *o!ernor on the recommendation of the +ar Association.#I The ,ommittee was gi!en full puniti!e powers, including the power to fine, reprimand, suspend and to debar a barrister H at H law from practice.#I# S$l&#&($-! -ursuant to the Golicitors Law ,ap. $E$, a Golicitors 2isciplinary ,ommittee was established in (4 . %n accordance with s. $K'#) on the hearing of an application, the ,ommittee was gi!en the power to inter alia remo!e from, or stri.e off the &oll, the name of the solicitor to whom the application relates and to suspend the solicitor from practice. C.-- '( P$!&(&$' %n (I#, the Legal -rofession Act was enacted. This Act inter alia fused the legal profession and established the *eneral Legal ,ouncil as the disciplinary body for the newly fused profession of attorneys H at H law. #I$ The ,ouncil was charged with the general duty to uphold the standards of professional conduct of attorney H at H law and in particular, was gi!en the full puniti!e powers as pre!iously enjoyed by the respecti!e Golicitors and +arristers 2isciplinary ,ommittees. #I4 R&24( $/ A11 al -ursuant to s. E of the Legal -rofession Act, an attorney has a right to appeal to the ,ourt of Appeal against any order made by the ,ommittee. The ,ourt of Appeal:
269
4n the #atter of ?effrey L Toppin* Attorney @ at @ law and 4n the #atter of the Legal Profession Act Cap .:1A. :udgement dated 2ecember #, (JI. ;o number assigned to the proceedings '+arbados) 270 +y !irtue of his office 271 Gection K of the +ar &egulations Law ,ap. #5 272 Gection E of the +ar &egulations Law ,ap. #5 273 Gection Legal -rofession Act (I 274 Gection #'4) Legal -rofession Act (I #ontego &ay Community College
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'i) 'ii) 'iii) 'i!)
may dismiss the appeal and confirm the order" or may allow the appeal and set aside the order" or may !ary the order" or may allow the appeal and direct that the application be re?heard by the ,ommittee.
>here it ma.es an order for the rehearing of an application, s. I' ) specifically pro!ides that no greater punishment shall be inflicted upon the attorney than was inflicted by the order made on the first hearing. >here the ,ourt of Appeal confirms the order whether with or without !ariation, the order ta.es effect from the date of the order made by the ,ourt of Appeal confirming it.#IK#IE A%*&( $/ P.'&(&: =.-&!0&#(&$' 9 I! &( E)(-a 9 T --&($-&alH The puniti!e jurisdiction of the court e0tends to misconduct committed e0tra H territorially. This means that the court or disciplinary tribunal of a territory can discipline an attorney for acts of omissions or dishonesty committed locally as well as abroad. The authority confirming the courts e0tra H territorial jurisdiction is #cCalla )" The /isciplinary Committee of the 5eneral Legal Council +::. The facts of #cCalla are as follows. =c,alla was admitted to practice in :amaica in (E#. Le then mo!ed to ,anada to li!e and wor. between (II to (JK. %n ,anada he was admitted to practice by the 3ntario +ar. %n the meantime, his name was still on the &oll in :amaica. Le returned in =arch (JK and resumed practice. The *eneral Legal ,ouncil then disco!ered that =c,alla had been struc. from the &oll in ,anada because: 'i) 'ii) he published as his, the wor. of other persons without their permission" and he lied on his application for employment with the 7ederal *o!ernment. Le held himself out as a S.,. and former 2eputy =inister of :ustice of :amaica.
Ta.ing into consideration the results of its< own in!estigation as well as the charges that had caused =c,all to be struc. from he &oll in ,anada, disciplinary proceedings against =c,alla were commenced by the *eneral Legal ,ouncil.
275 276
Gection I'#) Legal -rofession Act (I 4bid, ;uneC H Tesheira, pp # 4 ? # K 277 A (($B 4( >%& # $ #ontego &ay Community College
JK
The purpose of the proceedings, which were initiated by the ,hairman, was to ha!e =c,all struc. off the &oll of the ,ourt of :amaica. At the ,ourt of Appeal, >right :A had the following to say about the *eneral Legal ,ouncil<s entitlement to uphold standards of professional conduct:
There is no >ualification attached thereto" 4ndeed it would be ludicrous in the e treme if a ?amaican attorney were allowed to roam the world conducting himself in a manner which breaches the rules of conduct which go)ern the profession of which he is a member and be allowed to maintain that he is not sub-ect to the sanction of those rules because his conduct was outside ?amaica"+:<
P-$/ !!&$'al D&!#&1l&' : Pa-( II 9 C$%1 '!a($-5 =.-&!0&#(&$' The compensatory jurisdiction of the court is e0ercised by the court ma.ing an order of costs against an attorney personally. This sometimes means that the attorney pays the costs of the other side. %n other cases the attorney can be ordered to pay the costs of both parties. This compensatory jurisdiction is e0ercised e0clusi!ely by the court. +ut it is only e0ercised in restricted circumstances. %t is specifically incurred when an attorney acting as a solicitor6instructing attorney in the course of court proceedings cause costs to be improperly incurred or wasted because of undue delay or by misconduct or default or without reasonable cause. Lowe!er, although the court generally uses this disciplinary jurisdiction in a compensatory capacity, there is also a puniti!e element. This is because the solicitor will ha!e to pay a bill that would ordinarily be paid by one of the parties to the litigation. As the solicitor will want to a!oid this e0pense, as well as the ad!erse publicity, the ability of the court to order costs also acts as a deterrent. %t should be noted that costs can be ordered against as attorney e!en though he is no longer on record#I(. N 2l&2 '# GD /a.l( 9 W4a( C$'0.#( &! S.//&#& '(H >here the attorney<s conduct is a serious dereliction of duty that causes e0tra costs to be incurred, the compensatory jurisdiction of the court will be in!o.ed. An order will not be made against the attorney for personal payment of costs if his improper act or omissions falls short of a serious dereliction of duty. Therefore gross negligence or gross neglect will not in!o.e the courts compensatory jurisdiction.
278 279
4bid, at p #$K &rendan )" Spiro A ($IB # All /& 4(E
JE
%t should be noted though, that the rules in /ngland ha!e changed. #J5 ;ow, e!en though a solicitor has not incurred e0tra costs because of a serious dereliction of duty or serious misconduct, he can still be as.ed to pay wasted costs personally. Therefore a solicitor can incur the court<s compensatory jurisdiction, if he has unreasonably or improperly incurred e0tra costs or has caused e0tra costs by his incompetence. The new rule has already been applied in the case of Sinclair ?ones )" Bay#J . P-$/ !!&$'al D&!#&1l&' : Pa-( III 9 T4 G ' -al L 2al C$.'#&l C$'!(&(.(&$' a'0 M %* -!4&1 The *eneral Legal ,ouncil was constituted under the Legal -rofession Act (I . Pnder s. the 2isciplinary ,ommittee consists of a minimum of K persons. The *eneral Legal ,ouncil appoints them. Pnder the Act #J#, members of the disciplinary committee can be: i. ii. iii. i!. members or former members of the ,ouncil" current or former holders of high judicial office" attorneys who were members of a former disciplinary body" and attorneys who ha!e been in practice for not less than ten years. #J$
Pnder r. # of the Third Gchedule of the Act, the ,ouncil will appoint one of the members of the ,ommittee as ,hairman. 7or the sa.e of speed in the in!estigation or the hearing of complaints made against attorneys the ,ommittee usually sits in two or more di!isions. /ach committee is reDuired to appoint its< own ,hairman, they also need a Duorum of three members before they are able to act.
P-$# 0.The procedure for the e0ercise of the *eneral Legal ,ouncil<s disciplinary powers is set out in Gchedule 7our of the Legal -rofession Act (I . %t is as follows: .
280 281
A formal application is made by the complainant to the 2isciplinary ,ommittee in the prescribed form.
Gince April (JE, &.G.,.3. E# r. J was replaced with &.G.,.3. E# r. . A (JJB # All /& E 282 Gee also the Third Gchedule made under s. of the Legal -rofession Act (I 283 4bid, ;uneC H Tesheira, pp ### H ##$ #ontego &ay Community College
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The applicant should set out the facts by affida!it 's). This is usually done by a client, but may also be done by an aggrie!ed person. #. $. 4. The application should be submitted to the Gecretary of the *eneral Legal ,ouncil#J4. The Gecretary will send the application to the 2isciplinary ,ommittee. Apart from setting out the grounds for complaint, the application also calls upon the attorney to answer the allegations set out in the affida!it. The complaint will be referred to the 2-- if the complaint is of a criminal nature. K. The 2isciplinary ,ommittee carries out in!estigations into the allegation. At this stage the 2isciplinary ,ommittee may reDuire further documentary proof relating to the allegations. %f the 2isciplinary ,ommittee finds that there is no prima facie case it will dismiss the application without reDuiring the attorney to appear to answer the allegation. The 2isciplinary ,ommittee will notify the applicant and the attorney of this decision in writing. E. Lowe!er if a prima facie case is made out the 2isciplinary ,ommittee will fi0 a date for the hearing of the application. The =arshal of the ,ourt #JK will ser!e the ;otice of the hearing and copy of the affida!it to the attorney. The ;otice ta.es a prescribed form. %t includes a reDuest for a list of documents including affida!its on which the attorney will rely in answer to the allegations. I. %n compliance with the ;otice the attorney is reDuired to file and ser!e the reDuested documents and copies on the Gecretary of the 2isciplinary ,ommittee and on the applicant. /ither party may inspect the documents contained in the list furnished by each other.
? a-&'2 Applications are heard in pri!ate.
284 285
The Gecretary is appointed by the ,ommittee and usually and is usually not an attorney?at?law %n the Sueen<s +ench 2i!ision of the Ligh ,ourt, a marshal is an officer who attends each judge on circuit in a personal capacity. The =arshal of the Admiralty ,ourt is entrusted with e0ecution of warrants and order of the court H 3sborn<s ,oncise Law 2ictionary #ontego &ay Community College
JJ
The hearing is conducted in conformity with the rules of e!idence of a normal court hearing. The 2isciplinary ,ommittee may act in whole or in part upon the e!idence gi!en by the affida!it. %f it is reDuired the 2isciplinary ,ommittee may summon deponents#JE to gi!e oral e!idence. S(a'0a-0! $/ P-$$/ The standard of proof reDuired goes beyond a balance of probabilities. Therefore the standard of proof is high. This is not surprising since allegations of misconduct in!ol!e elements of deceit or moral turpitude. P-$/ !!&$'al D&!#&1l&' : Pa-( IV 9 T4 R #$-0 $/ P-$/ !!&$'al D&!#&1l&' &' =a%a&#a 7igures for the past nine years were made a!ailable and according to the figures supplied by the *eneral Legal ,ouncil, between ((# H #555, the number of complaints made to the *eneral Legal ,ouncil a!eraged #45 per year. 7or the period ((K H #555, two attorneys ha!e been suspended, se!en remo!ed from the &oll, one reprimanded and twenty?four fined. #JI @aren ;uneC H Tesheira writes that generalisations should be a!oided. +ut that the cynicism that the public feels towards legal professional discipline, in the /nglish H spea.ing ,aribbean, is well grounded. -eople feel that self?regulation is tantamount to trying the 2e!il in Lell. #JJ ole Today law is !ery much a business, than it is the pursuit of justice. +ut the traditional role of lawyers is to represent his client<s best interests to the court. This said, it is important to remember that lawyers are officers of the court. Their primary allegiance is therefore not owed to their client, but to the bench. T4 R$l a'0 D.(& ! $/ A0:$#a( A(($-' 5! I'(-$0.#(&$' %n the ,aribbean the roles and duties of attorneys, whether as prosecution or defence counsel are set out in the ,ode6,anon of /thics of the territories. The ,odes6,anons of /thics are howe!er silent with respect to confessions of guilt. +ecause of this the /nglish H spea.ing ,aribbean territories ha!e adopted The ,ode of ,onduct for the +ar of /ngland and >ales ((5, which has specific pro!isions on this score.
286 287
A person who ma.es a written statement or deposition H 3sborn<s ,oncise Law 2ictionary 4bid, ;uneC H Tesheira, p ##( 288 4bid, ;uneC H Tesheira, p ##J ? #$5
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Also the role and duties of attorneys o!erlaps with professional misconduct. The ,ode6,anons of /thics outline these duties, the breach of which constitutes professional misconduct. Lere we loo. at the role and duties of ad!ocate attorneys in relation to the conduct of court proceedings. G ' -al D.(& ! $/ P-$! #.(&$' a'0 D / '# C$.'! l The duties of prosecution counsel are wider in scope than that of defence counsel. As officers of the court, both ha!e an o!erriding duty to the court. 2efence counsel must be Cealous in the defence of his client and he must try to obtain the best remedy, which is legally a!ailable to him. #J( The role of the prosecution is to see. justice, which is a broader obligation. %n criminal cases the prosecution must use e!ery legitimate means to bring about a just conclusion #(5. /uty to Court in :eneral >hether prosecution or defence, an ad!ocate attorney shall maintain a respectful attitude to the court in the discharge of his functions and responsibilities. ,anon M 'a) of the ,anon of /thics reDuires that an attorney does not beha!e in a manner that is degrading to the court. Lis conduct must be dignified and courteous. %n the +ahamas, consistent rude, disrupti!e and pro!ocati!e beha!iour can in!o.e discipline, e!en though it has not punished as contempt. #( ,onseDuently an attorney: 'i) 'ii) shall not ma.e scandalous statements or statements which are solely intended to insult or intimidate witnesses or other persons" shall as an officer of the court and in the administration of justice be punctual when attending court. Le should also be concise and direct in trial and in the disposition of cases. Le should inform the courts of the estimated length of proceedings before the court when as.ed by the court. Le should also inform the court of any changes that might affect the estimated length of proceedings.#(# is reDuired to re!eal authorities or documents which are disad!antageous to his client, if he is reDuired to ma.e them a!ailable by the law or professional standards. Also when relying on authorities in support of his cases he is reDuired to ensure that the decision has not been o!erruled. #($
'iii)
D.(5 ($ (4 C$.-( &' Pa-(&#.la8i9

289 290
1udges
,anon of /thics, ,anon %M ,anon of /thics, ,anon %%% 'h) 291 ,ode of -rofessional ,onduct &ule %%%, ,ommentary # 292 ,anon of /thics, ,anon M 'D) 293 $ondel )" Horsley A (E(B A, ( at p. ##I also Goung )" #orales ' ((K) K5 >%& #ontego &ay Community College
(5
,ounsel should ne!er gi!e, lend or promise anything of !alue to the judge's) when conducting proceedings before him. Le should not attempt to pri!ately influence him directly or indirectly, to act in his or his client<s fa!our. #(4 Also an attorney must not wilfully ma.e false accusations against a judge or other judicial officer.#(K 8ii9 1urors
>ith respect to jurors, an attorney shall not: 'a) 'b) 'c) gi!e lend or promise anything of !alue to a juror where there is a matter pending in which he is engaged"#(E ma.e any attempts to curry fa!our with juries by fawning, flattery or pretended concern for their personal comfort" ,ommunicate with a juror as to the merits of such proceedings, e0cept where authorised by law or the practise in the court or in the normal course of proceedings with a judge or person e0ercising judicial functions.#(I#(J ;itnesses
8iii9
Attorneys are under a duty not to withhold facts or secret witnesses in order to show the guilt or innocence of the accused. Le should not ad!ise witnesses to ma.e themsel!es una!ailable to the court, for instance by lea!ing the court<s jurisdiction.#(( Attorneys must not pay witnesses or offer to pay witnesses for gi!ing e!idence. +ut they can pay reasonably incurred e0penses as well as reasonable compensation for loss of time in testifying in court as well as time ta.en to prepare for testimony. This also applies to e0pert witnesses $55, but he should only be paid a reasonable fee for his professional ser!ices. $5
294 295
,anon of /thics, ,anon %M r 'e) ,anon of /thics, ,anon M 'c) 296 ,anon of /thics, ,anon M 'b) 297 ,anon of /thics, ,anon M 'i) 298 ;uneC H Tesheira, @. '#55 ) The Legal Profession in the English @ Speaking Caribbean . :amaica: The ,aribbean Law -ublishing ,ompany, p #$I 299 ,anon of /thics, ,anon M '.) 300 A person with special s.ill, technical .nowledge or professional Dualification whose opinion on any matter within his cognisance is admitted in e!idence, contrary to the general rule that mere opinions are irrele!ant" e.g. a doctor or surgeon, a handwriting e0pert, a foreign lawyer. %t is for the court to decide whether the witness is so Dualified as to be considered an e0pert. %n any case to be tried without a jury, the court may appoint an independent e0pert, called the Fcourt e0pert<, to inDuire and report, H 3sborn<s ,oncise Law 2ictionary 301 ,anon of /thics, ,anon %M 'l) #ontego &ay Community College
Attorneys must not abuse, harass or intimidate witnesses. $5# An attorney must not appear as a witness for his client e0cept in formal matters where his appearance is essential to the ends of justice. $5$ Therefore if it is necessary for an attorney to be a witness in a formal matter, the conduct of the case should be entrusted to another attorney. Also, he is not to act as ad!ocate in any appeal to the decision of the proceedings in which he was an attorney. $54 8iv9 .er#ured +vidence7%raud7"llegal Conduct
As an officer of the court an attorney must ne!er .nowingly mislead the court. Le should also a!oid implying things about the other party or witnesses when he has insufficient information to that effect. An attorney: 'a) 'b) 'c) must not .nowingly use perjured or false e!idence, he must not help create or use e!idence which he .nows is untrue"$5K must not .nowingly ma.e a false statement of law or fact" must not .nowingly present to a judge, court or other tribunal that a particular state of facts e0ists. %f he .nows that this has been done with the intention of misleading the court he must disclose this to the court or promptly cal on a witness to rectify the same"$5E and must not help or ad!ise his client or a witness in fraudulent or illegal conduct.
'd)
D.(& ! $/ D / '# C$.'! l /!ery counsel has a duty to his client fearlessly to raise e!ery issue, ad!ance e!ery argument and as. e!ery Duestion, howe!er distasteful which he thin.s will help his client<s case.$5I Lowe!er as an officer of the court, his o!erriding duty is to the court in the administration of justice.$5J %t is the duty of defence counsel to see. justice. Lowe!er he should endea!our not to declare his personal belief in the innocence of his client neither in argument to the court or when addressing the jury. ,ounsel also must not
302 303
,anon of /thics, ,anon M 'p) ,anon of /thics, ,anon M 'p) 304 $ )" (arris (oo Shue A ($E H 45B $ :L& 5J 305 ,anon of /thics, ,anon M 'm) 306 ,anon of /thics, ,anon M 'n) 307 4bid, ;uneC H Tesheira, p #$J 308 $ondel )" Horsley A (EIB $ All /& at p ((J #ontego &ay Community College
(#
declare personal .nowledge about any facts in the matter being in!estigated, nor is he to declare his belief in the justice of his cause. $5( 8i9 /efending a Client -ccused of a Crime
>hen defending a client accused of a crime, irrespecti!e of any belief or opinions which he may ha!e formed as to the guilt or innocence of his client, defence counsel must endea!our to protect his client from being con!icted e0cept by a competent tribunal upon e!idence which is sufficient to support a con!iction for the offence with which the client is charged. $ 5 %n so doing he must not assert that which he .nows to be false or set up a case inconsistent with the information gi!en to him by the client. $ >hat happens if a client confesses his guilt to his attorneyN Attorneys ha!e a duty to their clients to maintain client6attorney confidentiality. 3n the other hand e!ery attorney is an officer of the court with an o!erriding duty to the court. Therefore he must not .nowingly mislead the court and he must not lie to the court. %n the situation where a client does confess to a crime an attorney must consider two facts" 'a) 'b) whether the accused<s confession of guilt is clear and uneDui!ocal" and the stage at which the confession is made. 0&'2!
W4 - (4 #$'/ !!&$' &! %a0 * /$- (4 #$%% '# % '( $/ 1-$#
The attorney may withdraw from representing the client if he confesses before proceedings ha!e started.$ # +ut if the client is going to plead guilty the attorney may still act. %f the client insists on pleading not guilty an attorney may still continue to act. Lowe!er he must e0plain all the possible conseDuences. %n particular, he must e0plain that restrictions will be placed on the conduct of the defence 'these will be considered below).$ $ W4 - (4 #$'/ !!&$' &! %a0 0.-&'2 1-$# 0&'2!
%f an attorney wants to withdraw in criminal cases, he must see. the court<s lea!e. >hether lea!e is granted is in the court<s discretion. Lowe!er if
309 310
,anon of /thics, ,anon M 'j) ,anon of /thics, ,anon %%% 'g) 311 4bid, ;uneC H Tesheira, pp #$J H #$( 312 The ,ode of ,onduct for the +ar of /ngland and >ales ((5 para #.K 313 4bid #ontego &ay Community College
($
proceedings ha!e commenced and an attorney<s withdrawal would compromise his client<s position, the attorney should continue to act. Lowe!er he must act within the strict limitations, which are imposed by his client<s confession 'we will loo. at these below).$ 4 L&%&(a(&$'! I%1$! 0 $' Cl& '( $' C$'0.#( $/ Ca! Although defence counsel should not re!eal the client<s perjury he must at the same time a!oid any in!ol!ement in the client<s perjury. Le should therefore see. to a!oid direct e0amination of his client" he shall not argue to the jury the accused<s .nown false !ersion of the facts" he may not recite or rely upon the client<s false testimony in his arguments. %n addition he cannot ma.e a plea in mitigation.$ K %n particular, defence counsel may not protest his client<s innocence nor set up an affirmati!e case consistent with the client<s confession by e.g. asserting or suggesting that some other person committed the offence charged or by calling any e!idence in support of an alibi intended to show that the accused is ta.ing the stand against his ad!ice. Although defence counsel is se!erely restricted in the conduct of the accused client<s defence in cases where the client has confessed his guilt, the attorney may ne!ertheless present a technical defence by, inter alia, objecting to the competency of the court, the form of the indictment and the admissibility or sufficiency of the e!idence.$ E %n attac.ing the e!idence for the prosecution, he is entitled to test the e!idence of each indi!idual witness for the prosecution by, inter alia, cross H e0amination or in his speech to the tribunal and to argue that the e!idence ta.en as a whole is insufficient to amount to proof that the accused is guilty of the offences charged, but he should go no further than that. $ I 8ii9 /isclosure of .revious Conviction of Client
2efence counsel is under no duty to disclose the fact that a client has a pre!ious con!iction if the prosecution has lead the court to belie!e that the accused client has no pre!ious con!iction. 8iii9 ;ithdrawing from case
,ounsel can refuse to act for a client who has confessed guilt but is still determined to plead not guilty. Lowe!er the ,anon of /thics, ,anon %M 'D) lists the general circumstances in which an attorney can withdraw his ser!ices from an undecided case before the court or other tribunal. They are:
314
The ,ode of ,onduct for the +ar of /ngland and >ales EJ ,r App 54 315 The ,ode of ,onduct for the +ar of /ngland and >ales 316 The ,ode of ,onduct for the +ar of /ngland and >ales 317 The ,ode of ,onduct for the +ar of /ngland and >ales #ontego &ay Community College
((5 para. $.$ and $ )" Lyons A (IJB ((5 para. $.$ ((5 para. $.4 ((5 para. $.K
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'a) 'b) 'c) 'd) 'e)
where the attorney cannot conscientiously represent a claim or defence that the client insists upon" where the client wants to pursue an illegal path or decei!e the court" where a client has committed fraud during proceedings but will not rectify or cannot rectify the matter when as.ed to by counsel" where to continue acting is tantamount !iolating a law or disciplinary rule" where the client by any other conduct renders it unreasonably difficult for the Attorney to carry out his employment as such effecti!ely or in accordance with the judgement and ad!ice of the Attorney, or the ,anon of professional ethics$ J" and where counsel cannot carry out his ser!ices effecti!ely for any other good and compelling reason.
'f)
D.(& ! $/ P-$! #.(&$' C$.'! l -rosecution counsel is e0pected to act fairly and dispassionately. The reason is he is e0ercising a public function that is discretionary and which gi!es him power. Lis primary duty is to assist in the administration of justice. Le should ensure that a case is conducted properly efficiently and in a reasonable time. %t is not his duty to represent any person. %t is important to note that it is not the duty of prosecution counsel to obtain a con!iction by e!ery means at his command.$ ( -rosecution counsel must present the case fairly and impartially. ,ounsel is also to ensure that the jury is also briefed on the law relating to the facts. -rosecution counsel must also male disclosures to the defence counsel 'or to the accused) in a timely fashion. %f the accused is not represented disclosures should be made to the court. 2isclosures should include all the facts and all the witnesses .nown to prosecution counsel. This should be done whether or not the disclosures tend towards the innocence or guilt of the accused. $#5 Therefore prosecution counsel must: 'a) ma.e promptly a!ailable to the defence all the witnesses and rele!ant statements" and
318 319
,anon of /thics, ,anon %M '!) ,ode of -rofessional ,onduct for the +ar of /ngland and >ale para 320 4bid #ontego &ay Community College
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'b)
to determine what e!idence is necessary and write e0actly what is necessary so as to send it to the defence counsel as soon as necessary.$#
%f prosecution counsel finds that there is no e!idence or so little e!idence as to ma.e it dangerous to lea!e the case to the jury, he is under a duty to tell the court of his !iew. Le should as. lea!e to withdraw from the prosecution. %t is Duite wrong of counsel to accept any instructions to go on with a prosecution, once he has formed a !iew that the prosecution should not continue $##.$#$ -rosecution must not withhold e!idence that pro!es the guilt or innocence of the accused. Also in the settling of indictments $#4 prosecuting counsel should act promptly. Le should also refrain from o!erloading it with too may defences or too many counts.$#K -rosecution counsel should not attempt by ad!ocacy, to influence the court in sentencing. %f the defendant is unrepresented, prosecution counsel is duty bound to inform the court of mitigating circumstances he is
321 322
Gee on this the ,ode of -rofessional ,onduct for the +ar of /ngland and >ales para . 4 'd) Abbot )" $efuge Assurance Ltd A (E B S+ 4$$ at 4K 323 4bid, ;uneC H Tesheira, p #4# 324 A formal document setting out the charges against the accused. An indictment consists of three parts: ' ) the introduction indicating the !enue and defendant" '#) the statement of offene" and '$) particulars of the offence 325 Gee on this the ,ode of -rofessional ,onduct for the +ar of /ngland and >ales para . 4 'd) #ontego &ay Community College
(E
I.
L 2al A&0 L 2al A&0 &' =a%a&#a
The Pnited @ingdom e0perience has influenced the de!elopment of legal aid in :amaica. !egal -id in Criminal Cases -ro!isions were made for legal aid in criminal cases as early as JI# $#E. %t allowed for the payment of three guineas per a day to a barrister, ad!ocate or attorney assigned by a circuit court judge to defend a poor person charged with a capital offence. %n ($J the -oor -risoners ',apital offences) 2efence Law ' ($J) tried to establish a system of legal aid for prisoners. 7urther to this the ,ourt of Appeal Law ' (K#) 'along with establishing the ,ourt of Appeal of :amaica) empowered the court to assign a solicitor and counsel or counsel only if the court was satisfied the prisoner was in need and it was in the interest of justice to do so. The -oor -risoners 2efence Law of (E repealed the ($J law. The (E law widened the scope of legal aid under the criminal law. A person charged with manslaughter, rape and infanticide amongst others could obtain a legal aid certificate. Lowe!er it was 'is) difficult to obtain a certificate. 7or e0ample in the period :anuary (I# to 3ctober (I$ only fifty certificates were granted out of one hundred and ten applications. Legal Aid is a!ailable for criminal matters today under The Legal Aid Act #555. Pnder s. K' ) legal aid may be granted to any person who is detained at a police station or in a loc.?up, correctional institution or other similar place 8 !egal -id in Civil Cases Legal aid is a!ailable in the &esident =agistrate<s courts and in the Gupreme ,ourt. Pnder s. E of the Legal Aid Act #555 anyone in need of legal ser!ices in any ci!il cause or matter may apply for legal aid if he or she cannot afford to defray their legal costs. The :udicature '&esident =agistrates) Act (#J go!erns the granting of legal aid in the resident magistrate<s courts$#I. The assistance pro!ided is !ery limited. %f lea!e is granted, a poor person will be gi!en the right to sue in forma pauperis. The applicant must satisfy the court of his po!erty, by submitting an affida!it. Le should also obtain a certificate signed by a :ustice of the -eace, a clergyman, or a minister of religion !ouching for the applicant.
326 327
,riminal Law, Law #4 of JI# Pnder s. 4# Guits in forma pauperis
(I
%t is worth noting that the ;orman =anley Law Gchool under the auspices of the ,ouncil of Legal /ducation operates a Legal Aid ,linic. The clinic used to train students but is also operated for the benefit of poor members of the public. A. T4 O%*.0!%a' 9 -$l a'0 /.'#(&$'!. T4 O//&# $/ (4 O%*.0!%a' ole The office of the 3mbudsman is the most popular alternati!e dispute mechanism in the ,ommonwealth ,aribbean. The 3mbudsman addresses abuses which are not con!enient for resolution at court or which the court cannot adeDuately handle. 3ur society has become more bureaucratic and the e0ecuti!e and regulatory power of the Fadministrati!e Gtate< encroaches on our li!es. This threatens our rights and liberties. The role of the 3mbudsman is to protect citiCens against the abuses of public administration as well as their errors and inefficiencies. Amongst other things, the 3mbudsman office can ser!e in an e0planatory or mediating role. This ser!ice is needed because in general ,aribbean societies do not participate in constitutional politics. ,onseDuently the go!ernment is remote from the go!erned. The %nternational +ar Association defines the office of the 3mbudsman in the following way$#J: An office pro!ided for by the constitution or by action of the legislature or -arliament and headed by an independent high le!el public official who is responsible to the legislature or -arliament, who recei!es complaints from aggrie!ed persons against go!ernment agencies, officials and employees or who acts on his own motion and who has the power to in!estigate, recommend correcti!e action and issue reports.$#( The office is in!estigatory and it aims to address rele!ant complaints. To achie!e this the 3mbudsman has wide powers and protection. %n :amaica the office of the 3mbudsman is set up by the 3mbudsman Act ' (IJ) $$5. %unctions The 3mbudsman<s function is called into operation where a citiCen or body of citiCens suffers an injustice due to a fault in administration or from administrati!e action or inaction.$$ Le may conduct in!estigations in two sets of situations: .
328
when an indi!idual or a body of persons complain" or
3wen -. F,urrent 3mbudsman issues H an international perspecti!e<, seminar papers, The &ole of the 3mbudsman in the ,ommonwealth ,aribbean, (J(, +arbados: %G/&, P>%, p $ 329 Op cit, Antoine, p $5K 330 Act ;o. #$ of (IJ 331 op cit Antoine, p $5I #ontego &ay Community College
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on his own initiati!e.
-arliament can refer complaints to the 3mbudsman if -arliament thin.s that there are special reasons that ma.e such an in!estigation desirable in the public interest. The 3mbudsman<s in!estigation should be guided by public interest. %n :amaica he can in!estigate matters relating to the police, judicial proceedings, personal and other situations where there is redress for a breach of fundamental rights $$#. Le may deny jurisdiction on grounds of tri!iality 'deminimis rule), fri!olity, bad faith or remoteness of interest. The 3mbudsman<s principal function is to in!estigate administrati!e decisions or recommendations of go!ernment departments or authorities. This includes ad!ice gi!en to ministers. The matters to be in!estigated include injustice and maladministration. Pnder s. #' ) H 'K) O s. #'$)'a) of the :amaica 3mbudsman Act ' (IJ) the 3mbudsman can in!estigate a matter where the complaint has or had a judicial remedy or remedy for a tribunal, pro!ided that the 3mbudsman is satisfied that it is not reasonable for the complainant to ta.e or ha!e ta.en such proceedings. The 3mbudsman can also in!estigate matters ta.en to a Ger!ice ,ommission about appointments, remo!als, promotions or disciplinary controls etc in regards to any person. The :amaican 3mbudsman is not pre!ented from in!estigating a matter that the complainant could apply to court to resol!e under s. #K of the ,onstitution$$$. %n :amaica the 3mbudsman is allowed to comment on legislation $$4 and there appears to be no limitation as to in!estigating policy. %n other territories 3mbudsmen are not allowed to scrutinise in!estigating policy. %f the complainant would ha!e a legal remedy, the 3mbudsman does not ha!e jurisdiction in those cases. Lowe!er, if there are Fspecial reasons<, he may e0ercise a retained discretion to in!estigate the case.
332 333
:amaica 3mbudsman Act ' (IJ) s. #' ) H 'K) This section relates to redress for the contra!ention of fundamental rights and freedoms 334 s. # 'K) 'b) #ontego &ay Community College
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B.
Law R /$-% a'0 Law R :&!&$'
Law reform and law re!ision in the ,ommonwealth ,aribbean has to be !iewed from the constitutional6colonial conte0t. At least two countries in the region are distancing themsel!es from their colonial past ':amaica and +arbados). There ha!e been cries from commentators ad politicians for re!iew of the constitutions. The issue of constitutional reform is now married to the future of the -ri!y ,ouncil and conseDuently the creation of the ,aribbean ,ourt of :ustice. At the end of the day, howe!er, the issue is li.ely to be dealt with as a political independence that the region as a whole enjoys. $$K TTTTTTTTTTTTTTTTTTTTT S(.0 '(! a- &'!(-.#( 0 ($ - a0 C4a1( - T4&-( ' $/ C$%%$'w al(4 Ca-&** a' P.*l&# Law *5 P-$/ !!$- Al* -( F&a0>$ @@I.
335 336
Albert 7iadjoe, ,ommonwealth ,aribbean -ublic Law, p #($ There are copies in the library
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Unit One - Module One - 04 - 05

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Caribbean Legal Systems

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Caribbean Legal Systems

The ,aribbean -erspecti!e ? &eception

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literary sources" and historical sources.

Caribbean Legal Systems

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Caribbean Legal Systems

The sentiment is the same in the :amaican ,onstitution, which states:

A (EIB # >%& K 4bid, p E 34 Op cit, Antoine, p IE #ontego &ay Community College

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Gecond Gchedule ,hapter Op cit, Antoine, p II 37 A (EIB # A, #$J, -,

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Caribbean Legal Systems

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Caribbean Legal Systems

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4bid Op cit, Antoine, p E(

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Op cit, Antoine, p I5 +efore independence these were called 3rdinances

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Caribbean Legal Systems

Caribbean Legal Systems

words of enactment H these will simply be Fbe it enacted 8<.

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Caribbean Legal Systems

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Caribbean Legal Systems

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Caribbean Legal Systems

A (I B ( >%& #I This means that the regulation had no effect.

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Caribbean Legal Systems

Caribbean Legal Systems

Caribbean Legal Systems

Caribbean Legal Systems

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Caribbean Legal Systems

Caribbean Legal Systems

Op cit, Antoine, p 4( P;L&, ,omm #J6 (JI

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Caribbean Legal Systems

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Caribbean Legal Systems

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Caribbean Legal Systems

Op cit, Antoine, p # Op cit, Antoine, p ##

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&'0.!(-&al #$.-(! a'0 (-&.'al!" !1 #&/&#all5 (4$! #- a( 0 5 C$'!(&(.(&$' $- S(a(.( 3