PRECEDENT – LOOKING INWARD –

COMMENTS ON THE PAPER ‘FI WE LAW’

November 6, 2007 

Our Need for Validation – The Absence of Identity

I sometimes say that studying law ruined my writing skills. Having emerged from a background in Literature, whose teacher saw my entry into law as a backward step, being an A student who seriously contemplated a career in Creative Writing, I have great sympathy for the central idea in Dr Jackson’s paper that our treatment of law is often devoid of reality-centred analysis and intuitive reasoning and sells out to sterile formalism because of a rigid adherence to precedent. But for me, the problem is much deeper. It has to do with a sense of self, . . .however clichéd that may sound.

      I recall many years ago, when I was still a relatively ‘junior’ member of staff, I was asked to do a short piece on the Optional Protocol (Human Rights Conventions). I went home, thought about what I believed, what the real issues were, how they affected us in society and wrote it straight from the heart that very night in a very direct fashion. The editor, who in fact was exposed to the American tradition, which Dr Jackson has faith in for being more issue centred and less formalistic, was delighted, and said so. The second stage was to elicit comments from another academic. When the piece was returned, to my amazement and even amusement, there were no complaints about the analysis, reasoning or argument. However, the comments throughout asked for ‘authority’ for this point or the next. The underlying assumption, it seemed to me was, ‘how dare you have an original opinion? How dare you be different?’ That sadly, is the attitude that permeates our jurisprudence in the region. It is as if everything we say, everything we do and everything we think, must be validated by someone else. Usually, that validation is external. ‘Free thinking’ is not so acceptable in our legal thought. It is no wonder that I myself sometime see my law career as a compromise, although I would like to think that the ‘free spirit’ still lives within.

      So  for me, the real problem is not so much legal formalism. Formalism is simply a cloak which shades the deeper, underlying problems. Yet, Dr. Jackson is right, a re-orientation which prioritises critical thinking would be useful. However, the real liberation, I suggest, requires more than a method, but a corrective attitude. It requires, nay, it demands, a philosophy, even an ideology, and one that is fully cognizant of its identity.

      The problem is not merely precedent. Indeed, were we to examine the rules of precedent as they apply to our most authoritative courts, the Privy Council and now the CCJ, we would see that precedent itself is not theoretically restrictive in these places of legal supremacy. As Lord Steyn reminded the Privy Council recently,  in Fisher v Minister of Public Safety and Immigration et al,116 >there is no binding authority compelling the Privy Council as a matter of precedent to decide the narrow question one way or other.. . ‘ Thus, rules of precedent do not fully explain our attitude toward law and its value and function in society.

Recent Developments and Public Law Precedents – Real Dynamism?

This point coincides with something else that I have been thinking about, which converges on the broader questions which we have been grappling with in this series, on public law and related issues. In particular, how have recent seemingly more liberal public law positions square with what Jackson and others argue is our attitude toward precedent and legal reasoning?

      While I welcome what are presented as ‘developments’ in Caribbean public law I cannot help thinking that these so called advancements are just as externally driven as the more traditional colonialist centred decisions that we love to criticize. This applies whether the ‘new found principle’ concerns the application of legitimate expectation to the death penalty – international law debate (borrowed from Teoh, an Australian case), or the European Court pronouncements on the morality and legality of the death penalty which we have adopted, on the premise that we must be in step with some identifiable international consensus on appropriate legal principle. These decisions may have stepped away from a rigid application of WI precedent using a more appropriate legal method to give them the freedom to do so, but have they really embraced the kind of internal logic of lawmaking that we need to truly develop the legal system? For that matter, are these values, on human rights and democracy, even universal? Ask a Moslem!

      Don’t get me wrong. I am not at all a believer in giving certainty in law the primary value in our jurisprudence. Indeed, I say, predictability is good, but justice is better. However, I do not think that ‘striking out to mould the common law’, what Persaud and now Boyce and Joseph (CCJ) instruct us to do, means simply substituting one rig(id precedent for another, when that other is just as easily located ‘in the other place’. In our eagerness to embrace a ‘Caribbean jurisprudence’ we fall into the easy trap of believing that overruling precedent automatically equates to dynamism and development in the law. But have we simply substituted one colonial construct for another – a rigid common law prison enveloped in the doctrine of precedent for a deceptively liberal, but in reality, Anglo Saxon, supremist bundle of legal and moral values packaged as universalist? This, of course, is particularly applicable to our recent constitutional interpretation.

      It is a supreme irony that today our best examples of West-Indian courts radically deviating from precedent (i.e. the death penalty cases), actually result in decisions that are perhaps more out of step with the thinking of that ‘lay person’ whom the distinguished Telford Georges identified, as we are reminded by Jackson), than perhaps any other decision. Thus, the ‘striking out to meet the needs of society’ instruction is most emphatically obeyed to directly confront and contradict what the average West-Indian perceives as her ‘needs’. Was this what Georges envisaged when he looked at the chattel house anew, with the eyes of the poor and landless labourer in a vulnerable world?

Is Universalism the Answer?

I ask further, (considered below) whether this ‘superior’ universalism expressed through our increasing reliance of international law as a source of law (a fairly recent development) is actually hijacking our constitution? Even the newly constructed CCJ seems to accept without question the universal applicability of such norms, norms which often challenge deeply held societal beliefs and which may even conflict fundamentally with our constitutions. I have argued in another paper, for example, that Boyce CCJ contradicts constitutional principle located in Pratt and Morgan. My point is not whether these newfound principles are right or wrong but how we have arrived at them. And here I embrace wholeheartedly Jackson’s desires for our law. But, I ask further, what room is there for meaningful dialogue on our constitutions and their place in today’s society in the form of democratic constitutional reform? Or do we simply accept judicial dialogue, or is it a monologue, as adequate?

      To what extent have these new directions been arrived at through a legal method grounded in inquiry into the imperatives of our society, as opposed to what are the ‘right’ legal principle as identified by other ‘others’?

      My suspicion that this liberated constitutional jurisprudence is not only one-sided but less radical than first appears, comes from the dichotomy I perceive when I examine other questions on our Constitutions apart from death penalty cases. Where, for example, is the social re-engineering and liberalism in cases examining the place of unions and workers rights – challenging Collymore? This would be jurisprudence which would accord squarely with our historical and social reality, given the imbalances between workers and employers in a region with high unemployment. Yet, this would challenge the very core of capitalism, as embodied in property rights attached to labour. Our externally driven ‘universalist’ easy answers are not yet in that place. Where too is the universalism of ideas rooted in gender and race equity?

      It may well be, as Robinson suggested, that we are moving toward new forms of constitutionalism, even common law forms of constitutionalism, but is it the form that should preoccupy us? Better to go along with Jackson’s worry, when he hints at our insular reasoning. Shouldn’t we be more concerned as to whether such jurisprudence is as a result of hard-fought answers to soul searching and deeply reflective questions about the direction of the  society that we want? I do indeed want judges to be intrepid, to embrace policy and new values. I was heartened to hear Justice Saunders say that judges can indeed ‘make law’ when faced with precedents which would contradict public policy. This is not irresponsible judicial activism but a  legitimate function of the judge. My only caution is that I want the policy and social circumstance which informs them to be grounded in our own social reality, even if it flies in the face of seemingly more palatable, ‘universally accepted truth’.

      I fear that even given better tools of legal method, we would not know how to use them. Indeed, the divergent approach to the common law and the purposive approach to the constitution, coupled with the freedom from rigid precedent that the CCJ and the Privy Council enjoy, already give us substantial tools to make our law more meaningful and in our image. Yet, if we ourselves are not sure what that image is, of what use is this equipment?

      In effect, the practice in Commonwealth Caribbean courts has been to surrender their judicial sovereignty to English courts and more recently, other judicial Gods. Clearly though, the evolution of a country=s jurisprudence depends ultimately on the maturity of its legal system, which in turn depends on the maturing of its political and social consciousness.

      What measure of self-confidence, assertion of identity and appreciation of the true function of law does it take for us to say, as one Australian put it, that the common law, (or constitutional law), is ‘the law created and developed at first by English judges and in more recent times, chiefly by Australian judges. . . ‘ (Brennan). 

EXCERPTS FROM COMMONWEALTH CARIBBEAN LAW AND LEGAL SYSTEMS

I explore some of my concerns in the second edition to my book Commonwealth Caribbean Law and Legal Systems. Here, I include some excerpts which may add to the discussion:

. . . ……………………………..

Excerpt from The Constitution Chapter

HIJACKING THE CONSTITUTION AND CONSTITUTIONAL REFORM?

We may observe from our discussion above that the purposive interpretations of the saving law and due process provisions, and by extension, the rule of law, appear to be moving away from the internal logic of the Constitution and toward more external expressions of justice. Some may even argue this is merely judicial activism disguised as purposive interpretation. We may well ask, are we hijacking our Constitutions? At what point does good judicial decision-making become judicial dictatorship which ignores the legislative imperatives of the democratically elected representatives of the people, the Parliament?

      In Pinder v R,3 however, the Privy Council refused to bow to international influences in employing a purposive approach to corporal punishment. It recognised that the true purpose of a Constitution may be located without travelling outside of its domestic grounding. As seen earlier, it found that corporal punishment was expressly saved by the Bahamas Constitution although such punishment was out of sync with international standards on punishment.

      In one case, judicial activism forced Parliament to restate the original intention of the Constitution. The Barbadian Parliament reversed the effect of Pratt and Morgan and its progeny to prevent the Courts from declaring the mandatory death penalty unconstitutional.

      These concerns continually raise the issue as to the origin and source of the law. Are our constitutions, in particular, the Bills of Rights, to be mere reflections of universal human rights instruments and jurisprudence without room for deviation? This is a question that concerns us further in our following chapter on ‘International law as a Source of Law’. Is this what the framers of the constitutions intended? Are interpretations of our constitutions which seem so far removed from their original objectives any less imperialistic than colonial laws imposed on us? Are such redefined constitutions in sync with coherent governance initiated by sovereign nations?

      These are difficult questions to answer but certainly a Constitution is a document which should embody the particular philosophy and even ideology of the State and its people, even if that ideology appears different to those of other peoples. Against this must be balanced the need for the Constitution to avoid atrophy, for the Constitution ‘is not a sterile and lifeless document’ but an organic and living thing’.4 But the change envisioned is to ‘respond to the changing needs of the people it governs’5 and not some alien audience. In Boodram,6 Sharma, CJ struggled to outline the balance that a court must establish in determining constitutional imperatives.  He adopted the approach of a Canadian jurist  who suggests that the judge must have an understanding of the ‘priorities’ of the peoples whom  he serves, and interpret the Constitution so as to make ‘the most beneficial impact’ on their lives. He conceded that the task was a political one, but not in a narrow partisan sense. 7 

PATTERNS OF CONSTITUTIONAL JURISPRUDENCE

      In recent times, a large body of constitutional jurisprudence has emerged around the death penalty, securing more and more rights for convicted persons. We may argue that this disproportionate attention to death penalty matters means that issues which are perhaps more pressing to our societies as a whole, are not being addressed, so that our constitutional jurisprudence continues to languish in other areas.

      How, we may ask, has the ‘ordinary’ individual fared? How has the Constitution served persons not convicted of crimes, but who have implored the courts to pronounce against religious discrimination, gender discrimination, political victimisation, property rights, trade union rights and even rights associated with freedom of association and movement? In these areas, the protection afforded under the Constitution seems to be interpreted more conservatively.8 At minimum, it would appear that the universality of values attached to the death penalty cases has not found its place as easily in other areas of human rights. There appears to be a selective appreciation of universal human rights norms when applied to our constitutions.

            Certainly, there have been glimmers of liberalism in these more troublesome areas, notably before the Belize courts (Wade v Roches,9 for example.) . . . 

      Moreover, as we suggested in Chapters 1 and 2, despite the label of pluralism in our societies, legal discourse has tended to conform to a uniform, majoritarian, ideological position based essentially on an Anglo-Saxon, Christian type of morality and governance. This morality is often used as a way of precluding minority interests, whether in terms of gender or religion. Should not the State grant equal protection to such minority interests? What is the value of constitutional protection for religious freedom and other freedoms involving ‘difference’ if only majority interests are to be protected? The value of the Constitution is not  only diminished but rendered nugatory.

      Admittedly, litigation has been sparse. This is in part due to the lack of awareness of the rights of the citizenry. More likely, however, it is due to cultural attitudes which do not perceive certain types of conduct as discriminatory, unlawful and even inappropriate. Such attitudes spill over into the interpretation of the law. One example relates to sexual harassment. In one case a male employee challenged his summary dismissal for fondling and ogling female employees at the workplace. A female magistrate viewed it as merely ‘ungentlemanly conduct’ insufficient to warrant dismissal.10

      We may argue further that certain types of rights, in particular, economic and social rights, largely rights in the collective, seem poorly served by our constitutions. As such, issues which are vital to developmental concerns, such as rights that should attach to workers and trade unions to enable them to lobby adequately for better standards of living, are poorly defined, or entirely absent.

      A similar complaint is with respect to employment rights under the Constitution, rights in the collective, litigation that could challenge earlier assumptions that in our democracies, where some Constitutions specifically protect the right to form and join a  trade union, there is no right to strike, bargain collectively or recognise a union.11

      We have already seen that the very structure of some of our constitutions can undermine the constitutional instrument as a cohesive  and effective machinery for human rights. This occurs, for example, where important rights are mentioned only in the Preamble and not detailed in the body of the Constitution and have been declared unjusticiable. Notably, already vulnerable rights such as discrimination and privacy may also fall into this category.

      Thus, despite the importance of the constitution, a number of questions are increasingly being raised about the defects and omissions of Commonwealth Caribbean constitutions, as well as the propensity of the judges to stretch them, sometimes well beyond imaginable or even desirable boundaries in particular subject areas. Not surprisingly, many countries are actively pursuing constitutional reform.

Excerpt from Precedent Chapter

      CONCLUSION - A DIRECTION FOR CARIBBEAN PRECEDENT

In examining the operation of doctrine of precedent in the Commonwealth Caribbean, we have seen that the historical conjuncture of the region cannot be isolated. Hence, continuing modes of the reception of the English common law is central to the question of the potential for the development of an indigenous  jurisprudence. Similarly, the retention of colonial attitudes of dependency on British legal thought is important to the issue.

      As the discussion illuminates, the answers to the questions concerning the operation of the doctrine of judicial precedent in the Commonwealth Caribbean are still not clear cut. In the final analysis, it would seem that only a few courts will respect the legal sovereignty and identity of independent jurisdictions and will not attempt to impose an alien jurisprudence upon them.

      Judicial interpretation and precedent should function within the modern context, as a tool for social engineering, to address creatively the political, social and economic needs of our own societies. To ensure this, our courts should deviate from the anglicised version of the law and a mechanical approach to cases, as seen above.

      An approach to judicial precedent which does not attempt to allow the law to reflect social reality and an individual society=s notions of legal morality and accuracy is not the way forward. This can hardly be justified and upheld in a society which claims that it is seeking to establish and assert its independence and a Caribbean flavoured jurisprudence. . . The doctrine of judicial precedent is the chief means by which this [English] custom is perpetuated as legal rules. It is questionable to what extent such rules should be applicable outside of their own social context.

       . . . The retention of procedural mechanisms, such as the doctrine of binding judicial precedent, buffered with psychological postures which perpetuate the Englishness of our law needs to be re-examined if we are ever to hope to fashion law according to our own likeness. In the words of de la Bastide, then Chief Justice of Trinidad and Tobago, and now the first President of the newly constituted CCJ, in the case of Bushell v Port Authority of Trinidad and Tobago and Others:253

It may be that we are too prone in jurisprudential and constitutional matters to transport from England and transplant in Trinidad and Tobago conventions, concepts and constructs without critically examining whether the soil conditions in which they have grown and flourished in their native land are, or can be, replicated in this country.