This book explores both concrete and conceptual developments in the legal systems of the Commonwealth Caribbean.[1]
Although at first glance the individual chapters may appear unrelated, a closer look reveals that they explore and offer insights into a number of crossÂcutting themes that are at the front of Caribbean regional jurisprudence — from the challenges involved in applying abstract (sometimes regional, often extra-regional) rules to concrete and differing societies, to those posed by the elucidation and clarification of the different sources of Caribbean law, to the institutional challenges involved in making and interpreting the law.
Several of these themes need to be unpacked, as well as others tentatively explored, in order for the contribution of the pieces in this book to be appreciated. What, for example, can we learn about a �Caribbean jurisprudence’? Is there such a thing? Is there a kind of transnational Caribbean law - especially a �confluence’ of national and international law[2] — and what is its effect on the legal institutions of the region? How do small jurisdictions make law — or is law made for them — in a global economy? Is there a trend towards �transjudicialism’ and how is this reflected in new institutions like the Caribbean Court of Justice (CCJ)?The chapters in this book are the first to ask these questions in the context of contemporary developments in Caribbean law and legal systems and particularly the establishment and early jurisprudence of the CCJ. The only posthumous publication to date by the late Professor Margaret Demerieux, who died in November 2005, sets the stage by evaluating the early legacy of the Judicial Committee of the Privy Council in constitutional human rights cases from the Caribbean.[3] Leighton Jackson looks squarely at the intellectual contribution of some distinguished Caribbean judges to the development of �fi wi law,’ notably Chief Justice Wooding and Justice Telford Georges.[4] From the perspective of international law (Berry), administrative law (Ventose) and constitutional law (Robinson), three chapters closely look at the CCJ’s most significant early decision, a death penalty appeal decided in 2006, a year and half after the inauguration of the Court in April 2005, AG v Joseph.[5]
This case epitomizes the transitions in law in the Caribbean over the last decade. The litigants, Lennox Boyce and Jeffrey Joseph, are well known to Caribbean public law.
Their appeal was one of the last major decisions heard by the Privy Council from Barbados, which became one of the first Caribbean countries to accept the appellate jurisdiction of the CCJ. They had lost their appeal before the Privy Council in 2004 in the legendary case, Boyce v R,[6] by a slim 5: 4 majority on the interpretation of the general savings law clause and its protection of the mandatory death penalty.[7] Two years later, the same litigants succeeded before the CCJ on different grounds, which carefully reviewed a series of earlier Privy Council decisions. The CCJ focused on the men’s legitimate expectation that they would have access to international human rights tribunals before the death penalty was carried out and their right to procedural fairness before the local body considered the exercise of the prerogative of mercy. To come full circle — an illustration of the force of international legal commitments — a year after the CCJ decision, in November 2007, the Inter-American Court of Human Rights held Barbados responsible for violations committed against these men by, among other things, the mandatory nature of the death penalty in Barbados.[8] Barbados agreed to repeal the mandatory death penalty and to constitutional reform to remove the infamous protection of existing laws secured by the general savings law clause in the Barbados Constitution.[9]The chapters in this book contend with the themes directly addressed in this early decision of the CCJ and others that circle the establishment of this transnational court.
1.