Law in the Caribbean: Transnational Dimensions
Another major theme in this book is the transnational nature of law in the Caribbean. Roger Cotterrelfs analysis that �the firmly defined jurisdiction of the nation state and the politically organized national society [are not] the terrain from which all legal phenomena can be observed and evaluated’ is very apt for the Caribbean.[60] One dimension of this transnational law is regional, and it has distinctly imperial roots that have received postcolonial succour.
Saunders J of the Caribbean Court of Justice (CCJ) concedes that the Privy Council as a final court of appeal contributed to the identity of a transnational Caribbean law because �so far as the judicial power is concerned, we have been practically united.’[61] This he described as a �solid edifice’ on which shared law and judicial decision-making has been built.[62] When the founders of Commonwealth Caribbean legal education created a common law programme to serve several Caribbean states that did more than elucidate �West Indian law.’ It served as an interpretive community that made it more real. Notwithstanding the obvious localized dimensions of law in the region — each country had its own Parliament and courts — the Faculty of Law asserted the existence of a common regional law and aimed at producing lawyers who could practise anywhere. It is little wonder that Mindie Lazarus-Black’s review of the early history of Caribbean legal education concludes that the products of the Faculty of Law �were global before that concept held currency.’[63]Transnational here has a second meaning, describing what the CCJ calls that �confluence’ between national and international law.[64] Forged in a colonial context, and often described as the first site of modernity and the �proving ground’ for international capitalism,[65] the Caribbean would almost inevitably today have laws with strong transnational dimensions, that is �a kind of hybrid between domestic and international law that can be downloaded, uploaded, or transplanted from one national system to another.’[66] Modern constitutions, for the most part, were shaped in the image of each other and Westminster.
The justiciable bills of rights introduced in the constitutions were modelled on African predecessors’ which in turn used the European Convention on Human Rights as a template.[67] Recent legislative initiatives in the US against human trafficking took their cues from the Palermo Protocol to prevent, suppress and punish trafficking in persons. As Adair shows, it was then translated into US foreign policy directives and legislation in the Caribbean and elsewhere.[68] International financial calamities from the North have blown new corporate governance regimes southwards.[69] While rule of law initiatives in transitional democracies and developing countries have become a global phenomenon, in a parallel move, the CCJ seems to be institutionalizing the rule of law as an implied constitutional fundamental, not just at the level of national constitutions but in the Caribbean Community.[70]References to decisions of foreign Commonwealth or common law courts and international human rights norms are now commonplace in the interpretation of the bills of rights of Caribbean constitutions.[71] Margaret Demerieux’s chapter on the Privy Council, which is published posthumously, reveals that cosmopolitanism did not characterize the early period of Privy Council adjudication in the Caribbean.
More recently, in a series of Privy Council decisions and the inaugural CCJ decision of AG v Joseph discussed throughout this book, the relationship between national and international law in the Caribbean has been brought into sharp relief. These death penalty cases have raised issues about whether domestic tribunals can refer to international law, for what purpose, and whether international law - including the practices of treaty bodies and tribunals - can have tangible effects in national legal systems.
In exploring the complexities of these cases, David Berry, argues that the common law rules regarding use of international law within the domestic courts invoked before the Privy Council and CCJ are not vague or contradictory.
Rather, these rules are precise, comprehensive and comprehensible. He argues that their application by the Privy Council in death penalty cases has been problematic, especially in light of the apparent incompatibility of the jurisprudence of the members the Privy Council with their own reasoning while sitting as the House of Lords. He observes that the Privy Council treats the Caribbean as more susceptible to international law than the United Kingdom, without explaining why. For this reason, Berry is critical of Privy Council decisions like Thomas v Baptiste, which in effect, allowed international legal processes to have domestic effect without incorporation into the domestic law, and Reyes, in which the Privy Council treated the ECHR as having been directly applicable to Belize before independence. Even the CCJ’s doctrine of legitimate expectation does not resolve the tension. Berry argues that under a strict dualist understanding of the relationship of international law and municipal law, it is difficult to see how one could have a legitimate expectation about a process which is not legal under domestic law, let alone even part of that domestic legal system.Berry argues that if we want to modify the dualist approach, we must do so in a principled way. Wit J’s approach in the case of AG v Joseph offers one model, but others more in keeping with the common law also can be developed and utilized. He suggests a wide range of legitimate ways in which international law can be used by national tribunals, from referring to international law as a non-binding, comparative and potentially persuasive authority, to more profound roles in which international law can play significant roles through incorporation, legislative transformation or interpretation. Customary international law, for example, becomes part of the law of the land - the common law - so long as it is not contradicted by statutory or judicial authority. Treaties can be transformed into domestic law through legislation and ambiguous domestic law, including both common and statutory law, can be interpreted in the light of international law, including unincorporated treaties.
Finally, he suggests that Commonwealth Caribbean judges have a role to play in establishing the types of statutes capable of being viewed as transformation statutes — in other words, those implementing treaty obligations in domestic law. In this vein, Berry suggests that state actions before treaty bodies may demonstrate an understanding by the executive that particular, previously-enacted statutes are to be understood as implementing (subsequent) treaty obligations. Such actions may allow a judge, when arriving at an informed interpretation of the meaning of that statute, to look to the treaty which it is now meant to transform. Berry argues that by using such techniques Caribbean judges do not fall foul of the problems inherent in bringing international law in through the back door. Rather, they will simply be exercising the normal judicial function of arriving at an informed interpretation of domestic statutory and common law.From the perspective of administrative law, Eddy Ventose takes a more sanguine view of the CCJ’s treatment of the doctrine of legitimate expectations. Like Berry, he is critical of the Privy Council’s contribution. On the question of legitimate expectations and unincorporated treaties, he describes the law generated by the Judicial Committee in death penalty cases as in a state of disarray, with differently constituted boards of the Privy Council coming to different conclusions and the �dissents of yesterday became the majority decisions’ of today, producing uncertainty.
Ventose agrees with the CCJ’s conclusion that legitimate expectations arise in this narrow case of condemned prisoners and says that this will not amount to a wholesale enforcement of unincorporated treaties because the following must be established: (a) ratification (which clearly was not of itself sufficient to found a legitimate expectation — properly understood); (b) positive statements by the state to abide by the Convention; (c) an established practice by the state of allowing condemned persons to allow their petitions to be processed before execution; and (d) Parliament in making that amendment impliedly recognized that it was the practice and indeed the obligation of the state to await the Commission’s process, at least for some period of time.
He anchors the appropriateness of the application of legitimate expectations in the doctrine of the rule of law, that to allow the state to renege on its promise or change its policy amounts to an abuse of power. The rule of law dictates that the court should not be impotent to provide a remedy where there has been abuse of power by the executive. Where the executive promises to preserve existing policy for a specific group who would be substantially affected by the change in policy, it must keep its promise.Transnational law has a third little explored element in the Caribbean. Most of the Caribbean law discussed in this book falls within orthodox definitions of law — case law, legislation, international conventions. Still, these chapters describe a much more expansive sphere of transnational rules and regulation that sit on the edge of and challenge conventional definitions of law. The Private Sector Organization of Jamaica (PSOJ)'s draft Corporate Governance Code, and the recommended Caribbean Code of Corporate Governance in Securities Markets and Caribbean Corporate Governance Principles discussed by Goldson are all attempts at private regulation that lack the imprimatur of the state, but significantly impact corporate culture and governance in the Caribbean. On the other hand, Goldson shows how state actors who are not lawmakers greatly impact the meaning and interpretation of the law. Jurisprudence, she shows, develops from the offices of registrars of companies as legal practitioners seek the advice of registrars on statutory interpretation. These evolving standards are shared across jurisdictions and thus contribute to the wider transnational nature of Caribbean law.
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