The Caribbean Court of Justice

One of the ingredients for the emergence of a Caribbean jurisprudence postulated by Patchett is the existence of a common court of appeal. The institution of the Caribbean Court of Justice, inaugurated in 2005 to serve as the final court of appeal for all Commonwealth Caribbean states replacing the Privy Council, is a move to this end.

Being of recent vintage there is a risk of unfairness in evaluating the judgments so far rendered by the court as an indication of its views with regard to the thesis of this chapter. That is, whether it subscribes to the formalist precedent-reliant approach to judicial decision-making or to a more robust realism.^[205] Nonetheless, there are sufficient cases upon which some comment may be made which would help to point to some general direction, to warn of danger or merely to complete this analysis.

A. AG v Joseph

By far the most extensive early decision of the CCJ in its appellate jurisdiction was rendered in the case of AG v Joseph.^[206] As judicial opinions rendered by common law courts, it is a scrumptious and satisfying decision in which most principles, at least in the main judgment jointly issued by the President and Saunders J, with whom the other judges generally agreed, are evaluated and reinvestigated and tested by Huhn’s five types of legal argument.

In the case, the court felt it had to make a ruling how it would treat past decisions of the Privy Council. Several decisions of the Board were in issue, the main ones being Pratt v AG^[207]and Lewis v AG.^[208] In preparation for this review, the court quite early in its opinion made it clear how the rules of precedent would operate in its decision making. De la Bastide P and Saunders J said:

The main purpose in establishing this court is to promote the development of a Caribbean jurisprudence, a goal which Caribbean courts are best equipped to pursue. In the promotion of such a jurisprudence, we shall naturally consider very carefully and respectfully the opinions of the final courts of other Commonwealth countries and particularly, the judgments of the JCPC which determine the law for those Caribbean states that accept the Judicial Committee as their final appellate court.^[209]

In regard to the doctrine of precedent the statement is incomplete and unsatisfactory. First, the judges said that the CCJ would treat the previous decisions of the Privy Council as persuasive only. Second, they said that decisions of the Privy Council while it was still the final court of appeal for Barbados from other Caribbean countries on comparable written law, by which it is supposed it is meant statute law, in the absence of material difference, continue to be binding on Barbados courts unless overruled by the CCJ. Several other aspects of precedent were not addressed by the Court that sees its institution as fostering Caribbean jurisprudence. Are the courts served by the CCJ bound by previous decisions of the Privy Council on the common law? Are the courts served by the CCJ bound by House of Lords decisions in its status, accepted by the Privy Council, as the final arbiter of the common law and similar statutes? Are the open reception provisions found in several statutes in the Commonwealth Caribbean served by the CCJ still open thereby permitting the continued reception of the laws of England, which only the CCJ can refuse to follow?

It seems clear that if the courts are bound by Privy Council interpretation of statute law in pari materia, then they must be bound by decisions given in relation to the common law.

If the CCJ is true to its commitment to the development of Caribbean jurisprudence, it must, as a concomitant of that goal unshackle all the courts of the Commonwealth Caribbean from bondage to English jurisprudence. The dictum of the CCJ is too eerily similar to the dictum in the maligned case of Robins v National Trust Co.^[211] We must cease being �colonial courts.’ We are no longer spouting �English law’ and the strictures laid down by the CCJ both expressly and inferentially on the very Caribbean jurisprudence it means to foster is neither indicated nor required. The release of the CCJ of its shackles from the binding precedents of the Privy Council and leaving the courts from which appeals come to it shackled, is tantamount to granting the Caribbean jurisprudence half freedom to develop.^[212] The paradigm shift would not have been made. The manner in which the CCJ has �hedged in’ the courts under its appellate jurisdiction, reserving only to itself changes in the law as laid down by English courts, forecloses any opportunity for these courts to contribute to the development of Caribbean jurisprudence.

Compelling arguments for a reversal of this decision either by the court itself or through national legislation can be made. The argument turns on its head the very argument that the proponents of the CCJ, including the CCJ judges themselves, make in relation to the competence of the judges who sit in the Caribbean. The restriction of the courts in the Commonwealth Caribbean has long been assailed as a lack of trust in the legal acumen and judicial responsibility of our judges. Saunders J, writing extra-judicially, instanced this precise point. He referred to the case of Toussaint v AG^[213] which he claims media reports hailed as seminal and yet the very same issues had been subject to �a masterly analysis in Boodram v AG by then Hamel-Smith J of the Trinidad and Tobago High Court as long ago as 1989.’^[214] Of course, the reports are replete with these instances and one merely have to look at the numerous occasions in which the court at first instance got it right and the intermediate court got it wrong, or instances in which it is only decades later that the correct law recognized by a single judge and initially rejected is embraced.

There is no reason to believe that, like the CCJ, the Caribbean courts will act other than with due caution and care in reinvestigating common law principles and statutory interpretation settled in England against the background of decisions from other jurisdictions and the local circumstances. Indeed, there are two points at which these courts are in a better position than the CCJ to do so. Where there is an allegation that the local circumstances required a re-evaluation of the principles, evidence can be lead for the evaluation to be made. Additionally, lawyers will be on notice to move beyond the strictures of precedent from other sources and prepare their cases utilizing a broader range of legal argumentation.^[215] It moreover saves money and judicial time by not requiring cases to be remitted for factual inquiry that cannot be undertaken at the level of the final court.

In order to move steadfastly to the goal of creating a jurisprudence that may be called Caribbean, all the resources must be utilized. To stifle, especially, the intermediate courts of appeal from engaging in an analysis and reinvestigation of the previous holdings of the Privy Council both of the common law and interpretation of statutes, as well as preventing the lawyers appearing before those courts from preparing their case in a way to provide the court with necessary research and argumentation is to choose to hear out of one ear, although endowed with two. The fallacy under which it is too often tempted to fall prey is that the law is clear, or in the words of Professor Levi, �that the legal process is the application of known rules to diverse facts.’^[216] He continues to point out that �The problem for law is: When will it be just to treat different cases as though they were the same?’ This is where all the players in the judicial process have a role and it is negating progress in the emergence of the new Caribbean legal order to suppress the contribution of any section.

It must also be remembered that the process of two levels of appeals has as its salutary advantage a refinement of the arguments, allowing the final court �the opportunity for detached reflection.’^[217] It allows the final court of appeal to clarify the issues and retract those that are mere puff. In this regard, Saunders J rightly admits, extra-judicially, that, �The quality of any judgment is necessarily dependent upon the nature of the submissions of counsel.’^[218] �If the Privy Council judgments are of a superior standard, it is generally because the calibre of the submissions placed before their Lordships is usually higher than those made before the judges below.’^[219]

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