Commonwealth Caribbean Law and Legal Systems 2 e (Commonwealth Caribbean Law)

487 Pages·2006·2.4 MB·English

by  Rose-Ma Antoine

COMMONWEALTH
CARIBBEAN LAW AND
LEGAL SYSTEMS
Fully updated and revised to fit in with the new laws and structure in the Common-
wealth Caribbean law and legal systems, this new edition examines the institutions,
structures and processes of the law in the Commonwealth Caribbean.
The author explores:
• the court system and the new Caribbean Court of Justice which replaces appeals
to the Privy Council
• the offshore financial legal sector
• Caribbean customary law and the rights of indigenous peoples
• the Constitutions of Commonwealth Caribbean jurisdictions and Human Rights
• the impact of the historical continuum to the region’s jurisprudence including the
question of reparations
• the complexities of judicial precedent for Caribbean peoples
• international law as a source of law
• alternative dispute mechanisms and the Ombudsman
Effortlessy combining discussions of traditional subjects with those on more innova-
tive subject areas, this book is an exciting exposition of Caribbean law and legal
systems for those studying comparative law.
Rose-Marie Belle Antoine is the Professor of Labour Law and Offshore Financial
Law at the University of the West-Indies.
COMMONWEALTH
CARIBBEAN LAW AND
LEGAL SYSTEMS
Second Edition
Rose-Marie Belle Antoine
LLB (UWI), LLM (Cantab), DPhil (Oxon)
Professor of Labour Law and Offshore Financial Law,
Faculty of Law, University of the West-Indies
Attorney-at-Law
First published 1998
by Routledge-Cavendish Publishing Ltd
Second Edition published 2008
by Routledge-Cavendish
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
Simultaneously published in the USA and Canada
by Routledge-Cavendish
270 Madison Ave, New York, NY 10016
Routledge is an imprint of the Taylor & Francis Group, an informa business
This edition published in the Taylor & Francis e-Library, 2008.
“To purchase your own copy of this or any of Taylor & Francis or Routledge’s
collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.”
© 1998, 2008 Rose-Marie Belle Antoine
All rights reserved. No part of this book may be reprinted or reproduced
or utilized in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
writing from the publishers.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Antoine, Rose-Marie Belle.
Commonwealth Caribbean law and legal systems / Rose-Marie Belle Antoine. – 2nd ed.
p. cm.
1. Law–Caribbean Area. 2. Law–West Indies, British. 3. Law–Commonwealth countries.
I. Title.
KGJ97.A58 2008
349.729–dc22
2007036111
ISBN 0-203-93039-8 Master e-book ISBN
ISBN10: 1–85941–853–8 (pbk)
ISBN13: 978–1–85941–853–6 (pbk)
CONTENTS
Foreword to the Second Edition xix
Foreword to the First Edition xxi
Preface xxiii
Acknowledgments xxvi
Table of Cases xxvii
Table of Legislation xxxvii
PART I
THE NATURE OF THE LAW AND LEGAL SYSTEMS AND ITS
HISTORICAL PRECEPTS 1
1 INTRODUCTION TO LAW AND LEGAL SYSTEMS IN THE
COMMONWEALTH CARIBBEAN 3
THE NATURE OF THE LEGAL SYSTEM 3
A West Indian identity? 3
Turn toward other foreign law? 4
The plantation paradigm 4
Striving to be West Indian 5
The vulnerabilities of the legal system to socio-political realities 5
Economic and political sovereignty and the impact on law 6
PLURALISTIC SOCIETIES – RASTAFARIANISM AND BEYOND 6
Hindus and Muslims – ethnic and religious groups 7
The Rastafarians 8
The Orisha or Orisa 10
The failure to reflect minority interests in the law 11
The indigenous peoples 11
NEW AVENUES FOR LEGAL SYSTEMS – THE OFFSHORE
LEGAL SUBCULTURE 13
THE DEPENDENT TERRITORIES 14
REDEFINING LEGAL SYSTEMS 16
Funding justice 17
2 THE HISTORICAL FUNCTION OF LAW IN THE WEST INDIES –
CREATING A FUTURE FROM A TROUBLED PAST 18
INTRODUCTION– THE GROUNDINGS OF HISTORY 18
Obeah Acts and Vagrancy Acts – laws to sustain inequity and
dependence 21
vi Commonwealth Caribbean Law and Legal Systems
THE CONTINUATION OF LEGAL PARADIGMS BORN OUT OF SLAVERY 24
Imperial law and the indigenous peoples 26
THE LAW’S RESPONSE TO HISTORY THROUGH SOCIAL
ENGINEERING– FROM REFORM TO REPARATIONS 26
Legitimising the concept of reparations 27
Judicial concerns about social engineering 28
LOCATING THE CONTEMPORARY FUNCTIONS OF LAW – POSITIVISM,
NATURAL LAW AND WEST-INDIAN IDENTITY 29
The Grenada revolution and Austin’s sovereign 29
Limits of the command theory 30
The naturalists and the morality of law 30
Natural law, morality and our pluralistic societies 31
When should we obey the law? 32
ROLE OF THE SLAVE IN CREATING MODERN LAW 33
3 LEGAL TRADITIONS – TYPES OF LEGAL SYSTEMS IN THE
COMMONWEALTH CARIBBEAN 35
INTRODUCTION– THE DIFFICULTY IN DEFINING LEGAL SYSTEMS 35
THE CONCEPT OF A LEGAL TRADITION OR LEGAL FAMILY 35
Which criteria to be used? 36
DISTINGUISHING CRITERIA OF LEGAL TRADITIONS 37
Identifying major legal traditions 38
THE COMMON LAW LEGAL TRADITION 39
THE CIVIL LAW OR ROMANO-GERMANIC TRADITION 41
Civil law systems in CARICOM 44
SIMILARITIES BETWEEN THE COMMON LAW AND CIVIL LAW
TRADITIONS 44
THE SOCIALIST LEGAL TRADITION 45
THE RELIGIOUS LEGAL TRADITIONS 47
Muslim law 47
Hindu law 48
EVIDENCE OF THE RELIGIOUS LEGAL TRADITION IN THE
COMMONWEALTH CARIBBEAN 49
Religious marriage and divorce 50
Religious dress and expression 53
Legal pluralism or legal tokenism? 54
THE LEGAL TRADITION OF THE FAR EAST 55
Contents vii
CONCLUSION– WHITHER COMMONWEALTH CARIBBEAN LEGAL
SYSTEMS? 55
West Indian attitudes toward law 56
Legal traditions of the Amerindians 57
4 THE HYBRID LEGAL SYSTEMS OF ST LUCIA AND GUYANA 58
INTRODUCTION 58
CLASSIFYING LEGAL TRADITIONS 58
THE HYBRID PHENOMENON IN THE COMMONWEALTH
CARIBBEAN 60
THE GUYANESE EXPERIENCE 61
THE HYBRID LEGAL SYSTEM OF ST LUCIA 63
EROSION OF THE CIVIL LAW 65
Law of contract under the Civil Code of St Lucia 66
Influence of Quebec law 66
DIFFICULTIES IN APPLYING ST LUCIA’S CIVIL CODE 68
Family law under the Civil Code 69
Interpretation of the Civil Code 69
THE FUTURE OF THE HYBRID LEGAL SYSTEM 71
5 THE RECEPTION OR IMPOSITION OF LAW AND ITS
SIGNIFICANCE TO CARIBBEAN JURISDICTIONS 73
Rationale for imposition 74
SETTLED COLONIES AND CONQUERED COLONIES 75
THE METHOD AND DATE OF RECEPTION 77
Reception of English statutory law 81
CARIBBEAN ATTITUDES TO RECEPTION – STATIC OR CREATIVE? 81
A CUT-OFF POINT FOR RECEPTION? 83
The local circumstances rule 88
Receiving law from jurisdictions other than England 91
RECEPTION OF LAW AS A LIBERATING CONCEPT 92
PART II
THE SOURCES OF LAW IN THE COMMONWEALTH CARIBBEAN AND
THEIR IMPACT ON THE LEGAL SYSTEM 93
6 INTRODUCTION TO SOURCES OF LAW 95
viii Commonwealth Caribbean Law and Legal Systems
7 THE WRITTEN CONSTITUTION AS A LEGAL SOURCE 97
THE NATURE AND IMPORTANCE OF THE CONSTITUTION 97
Constitutional supremacy 97
Functions of the Constitution 98
Form and structure of the Constitution 99
THE PROTECTION OF FUNDAMENTAL RIGHTS – A DYNAMIC LEGAL
SOURCE? 100
SAVING LAW CLAUSES 101
Changes to saving law approaches 102
PURPOSIVE INTERPRETATION AND THE ATTITUDE OF THE COURTS 104
Due process and the rule of law 106
THE PREAMBLE TO THE BILL OF RIGHTS 107
HIJACKING THE CONSTITUTION AND CONSTITUTIONAL REFORM? 109
DIRECTIONS IN CONSTITUTIONAL JURISPRUDENCE 110
ECONOMIC, SOCIAL AND CULTURAL RIGHTS 112
SEPARATION OF POWERS 113
ENTRENCHMENT OF CONSTITUTIONAL PROVISIONS 114
MEASURING THE VALIDITY OF OTHER LAWS AND LEGAL SOURCES 115
The validation of other legal sources 116
8 THE COMMON LAW AND THE OPERATION OF THE DOCTRINE OF
JUDICIAL PRECEDENT IN THE COMMONWEALTH CARIBBEAN 117
INTRODUCTION TO THE COMMON LAW 117
THE DOCTRINE OF JUDICIAL PRECEDENT – CHARACTER AND
RATIONALE 117
Binding precedent 118
Persuasive precedents 118
ADVANTAGES AND DISADVANTAGES OF THE DOCTRINE OF
JUDICIAL PRECEDENT 119
Precedents relevant to social contexts 120
THE HIERARCHY OF COURTS 121
CONCEPTS IMPORTANT TO THE DOCTRINE OF PRECEDENT 122
Theratio decidendi 122
Locating the ratio decidendi 122
Obiter dicta 124
Statements of law made per incuriam and per curiam 126
Contents ix
THE IMPORTANCE OF LAW REPORTING 127
AVOIDING PRECEDENT – THE PROMOTION OF FLEXIBILITY 128
Overruling decisions 128
Prospective overruling 129
Exceptions to precedent in the face of per incuriam or obiter statements 129
Precedents based on assumptions of law 129
Distinguishing precedent 130
Reversing a decision 130
First impression decisions 131
THE DECLARATORY PRECEDENT AND THE OVERRULING OF
PRECEDENT– NEW DEVELOPMENTS 131
Challenges to the declaratory theory – creating new legal rules 132
Persistent overruling 133
CIRCUMSTANCES IN WHICH FINAL COURTS SHOULD OVERRULE 134
Finding the balance – the priority for judicial development 137
RULES OF PRECEDENT FOR COURTS OF APPEAL 138
Earlier Court of Appeal decisions 138
Deviation for criminal jurisdiction 140
Previous Privy Council Decisions where appeals to Privy Council
have been abolished 140
RULES OF PRECEDENT FOR THE PRIVY COUNCIL 141
Where Privy Council precedent conflicts with House of Lord precedents 142
The CCJ and precedent 142
Implications where highest court not bound to precedent 143
DECISIONS OF HIGH COURTS 144
MAGISTRATES’ COURTS AND STARE DECISIS 144
CONSTITUTIONAL LAW DECISIONS 145
THE CARIBBEAN PERSPECTIVE – DIFFICULTIES WITH HIERARCHY
IN THE OPERATION OF PRECEDENT 145
A complex hierarchical structure of courts 145
Pre-independence courts 146
Decisions from other Caribbean Courts of Appeal 147
Sub-regional courts 147
DECISIONS OF THE REGIONAL FINAL COURTS – THE PRIVY
COUNCIL AND THE CCJ: REGIONAL OR DOMESTIC? 148
Privy Council decisions from other jurisdictions binding in practice 149
Authority for refusing Privy Council precedents from other
jurisdictions 151
x Commonwealth Caribbean Law and Legal Systems
The CCJ and precedents from other jurisdictions 152
A homogeneous jurisprudence 153
DECISIONS FROM THE HOUSE OF LORDS AND OTHER ENGLISH
COURTS – THE DESIRE FOR CONSISTENCY IN THE COMMON LAW 153
Status of decisions from the UK House of Lords 153
CODIFIED COMMON LAW 155
Local circumstances rule and precedent 156
PRECEDENT AND THE RECEPTION OF LAW AS DECLARED IN THE
CARIBBEAN 156
CAN CARIBBEAN JUDGES MAKE LAW? 159
MOULDING THE COMMON LAW AMIDST LOCAL CIRCUMSTANCES 161
An indigenous jurisprudence from a Caribbean Court of Justice 163
CONCLUSION– A DIRECTION FOR CARIBBEAN PRECEDENT 164
9 EQUITY AS A SOURCE OF LAW 166
INTRODUCTION– THE DUAL STRUCTURE OF THE COMMON
LAW 166
THE HISTORICAL JUSTIFICATION FOR AND DEVELOPMENT OF
EQUITY 167
THE COURT OF CHANCERY 168
THE NATURE AND CONTENT OF EQUITY 168
‘Maxims of equity’ 169
New rights and remedies 170
THE MODERN EXPRESSION OF EQUITY 171
THE ROLE OF THE LEGISLATURE IN CREATING EQUITABLE
PRINCIPLES AND OFFSHORE DEVELOPMENTS 171
NEW DEVELOPMENTS BY THE COURTS 172
OFFSHORE LEGISLATIVE DEVELOPMENTS 173
The offshore trust in equity 173
OFFSHORE JURISPRUDENCE AND THE MAREVA INJUNCTION 174
THE RELATIONSHIP BETWEEN THE COMMON LAW AND EQUITY 176
10 CUSTOM AS A SOURCE OF LAW 177
CUSTOM 177
THE COMMON LAW RULES OF CUSTOM 177