THE INTER-AMERICAN SYSTEM OF HUMAN RIGHTS AND THE COMMONWEALTH CARIBBEAN
BY THE HON. MR JUSTICE WINSTON ANDERSON, JCCJ* AT THE UWI/IACHR SEMINAR, FACULTY OF LAW, CAVE HILL CAMPUS, BARBADOS 12TH OCTOBER, 2011
Introduction Permit me to begin by welcoming as being both timely and critically important, this examination of the relationship between the Inter-American System of Human Rights (“Inter-American System”) and the Commonwealth Caribbean.1 I believe that this relationship has both current and profound implications for the advancement of human rights in the Caribbean and also for the definition of the Caribbean legal identity. Doubtless, the Inter-American System has been a catalyst for significant progress in the protection of human rights in the English-speaking Caribbean. A whole cadre of human rights groups has emerged; judges have drawn upon Inter-American Human Rights Law to strike down the mandatory death penalty; the executive has been obliged to await the receipt of the reports by human rights bodies before carrying out judicial sentences of death; and the legislature has been curtailed in the enactment of laws that could infringe the right to life. There are good reasons to believe that there could soon be parallel developments in relation to other human rights, probably most imminently, rights associated with sexual orientation. Equally, however, it is clear that there is a real disinclination on the part of Caribbean states to accept leading instruments and institutions of the Inter-American System. For example, whereas all 12 Commonwealth Caribbean States are members of the *
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Judge of the Caribbean Court of Justice. Immediately prior to his elevation to the Bench of the CCJ, Justice Anderson was Professor of International Law and Executive Director of the Caribbean Law Institute Centre at the Faculty of Law, Cave Hill Campus, University of the West Indies; and a former General Counsel of the Caribbean Community. The views expressed in this paper are the personal views of the author and do not necessarily reflect those of the Caribbean Court of Justice. For a definition of relevant terms and further treatment of the Caribbean-InterAmerican relationship see: Winston Anderson, “The Inter-American System and its Impact on Caribbean Human Rights Law: Constitutional Law Implications and the Role of the CCJ” (2010) Vol. 35 No. 2 West Indian Law Journal 27.
2 The Hon. Mr. Justice Winston Anderson, JCCJ Organization of American States (“OAS”) and thus accept the competence of the InterAmerican Commission on Human Rights to make non-binding reports and recommendations concerning their observance of human rights under the OAS Charter 19482 and the American Declaration of the Rights and Duties of Man 1948,3 only four of these 12 states have ratified the important Inter-American Convention on Human Rights (“Inter-American Convention”)4: Grenada (1978); Jamaica (1978); Barbados (1981); and Dominica (1993). Of these four, only Barbados has taken the further step of accepting the jurisdiction of the Inter-American Court of Human Rights (“Inter-American Court”) to make legally binding decisions in respect of the provisions of the Inter-American Convention. Trinidad and Tobago, which in 1991 had accepted both the Convention and the jurisdiction of the Court, took the unprecedented step of withdrawing its ratification in 1998.5 I think it entirely appropriate that the reasons for this reluctance to join, and indeed regret at joining critical institutions of the Inter-American System, are interrogated and critiqued here at the Cave Hill Campus of the Faculty of Law of the University of the West Indies. In addition to the licence of academic freedom, these hallowed walls provide the illumination of a rich heritage of relevant Caribbean jurisprudence. The torch was lit by the founding fathers of this Faculty, particularly Ralph Carnegie who taught constitutional law to the first generations of Caribbean law students.6 The flame was carried by the early pioneers: Francis Alexis, who authored a book on the subject;7 and Margaret DeMerieux, who introduced Caribbean Human Rights into the UWI syllabus.8 The standard has been carried in more recent times by Hugh Rawlins and Tracy Robinson; their period of stewardship coinciding with the introduction by David Berry of the teaching of the Inter-American Human Rights System into his Public International Law Course. And, of course, in the most recent of times, Ms. 2
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Charter of the Organization of American States, 119 U.N.T.S. 3, entered into force December 13, 1951; amended by Protocol of Buenos Aires, 721 U.N.T.S. 324, O.A.S. Treaty Series, No. 1-A, entered into force Feb. 27, 1970; amended by Protocol of Cartagena, O.A.S. Treaty Series, No. 66, 25 I.L.M. 527, entered into force Nov. 16, 1988; amended by Protocol of Washington, 1-E Rev. OEA Documentos Oficiales OEA/Ser.A/2 Add. 3 (SEPF), 33 I.L.M. 1005, entered into force September 25, 1997; amended by Protocol of Managua, 1-F Rev. OEA Documentos Oficiales OEA/Ser.A/2 Add.4 (SEPF), 33 I.L.M. 1009, entered into force January 29, 1996. Reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992). Adopted at San Jose, Costa Rica, 22 November 1969; entered into force 18 July 1978, text in 1144 U.N.T.S. 123. The withdrawal was effective in 1999: see, Case of Hilaire, Constantine and Benjamin et al v Trinidad and Tobago, IACHR, June 21, 2002. Series C No. 94. A eulogy memorializing Professor Carnegie’s personality, genius and contribution to Caribbean jurisprudence may be accessed at: http://www.eccourts.org/ See: Francis Alexis, Changing Caribbean Constitutions (1983). See: Margaret DeMerieux, Fundamental Rights in Commonwealth Caribbean Constitutions (1992).
3 The Inter‐American System of Human Rights and the Commonwealth Caribbean Robinson and Professor Rosemarie Antoine, both of the UWI Faculty of Law, were appointed to the Inter-American Commission on Human Rights, appointments which facilitate the cross-pollination of legal ideas and for which we congratulate them most warmly. If we should turn, then, to undertake an honest examination of the Caribbean ambivalence towards the Inter-American System, we would confront the difficulties of integrating two legal systems that have different legal heritages, traditions, and sources of legitimacy. We would also confront the still nascent efforts to author a distinctly Caribbean jurisprudence freed from subservience to colonial institutions whilst being willing to accept such modern legal norms and influences as are compatible with our constitutional arrangements.9 It is in this regard, as I have offered in a recent article in the West Indian Law Journal,10 that there are real difficulties in reconciling aspects of the Inter-American Court’s jurisprudence with the constitutional rule of law as traditionally understood in the West Indies.
History and Tradition It is important to appreciate that the history and tradition of Caribbean respect for human rights and the guarantees in our Caribbean Bill of Rights probably sits uncomfortably with history of the adoption of the Inter-American System. It seems widely accepted that at the time of its development the Inter-American System (qua OAS Charter and American Declaration) was primarily meant to address massive human rights violations in Latin America after World War II.11 State sponsored 9
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The attitude of the CCJ towards decisions of the Privy Council was set forth in AttorneyGeneral of Barbados v Joseph and Boyce [2006] CCJ 3 (AJ) at para 18: “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. In this connection we accept that decisions made by the JCPC while it was still the final Court of Appeal for Barbados, in appeals from other Caribbean countries, were binding in Barbados in the absence of any material difference between the written law of the respective countries from which the appeals came and the written law of Barbados. Furthermore, they continue to be binding in Barbados, notwithstanding the replacement of the JCPC, until and unless they are overruled by this court.” See also Justice Anderson, delivering the judgment of the Court in Garraway v. Williams & Rambarran [2011] CCJ 12 (AJ) at para 26. Supra, note 1. See generally, Judge Thomas Buergenthal, “Remembering the Early Years of the InterAmerican Court of
4 The Hon. Mr. Justice Winston Anderson, JCCJ terrorism in the form of summary executions, torture, disappearances, kidnappings, and abuses of the right to freedom of expression were a common feature of the military regimes and civilian dictators in the non-democratic countries of the Americas. Judge Thomas Buergenthal of the Inter-American Court puts it cryptically: “[O]ften, the mere public discussion of human rights could land a person in jail or worse”.12 Not surprisingly, the early litigation before the Court concerned these very atrocities; the flagrant disregard of the human rights of anyone the State considered subversive.13 By way of sharp contrast, these political problems for human rights were never characteristic of the Commonwealth Caribbean. To the contrary, the small English speaking countries in the Caribbean have had a proud tradition of constitutional democracy, adherence to the rule of law, and respect for human rights. The breakdown in constitutional government which occurred in the almost bloodless coup in Grenada in 1979, was not accompanied by reports of widespread breaches of human rights by the People’s Revolutionary Government (“PRG”) either during their four-year rule or upon return to the Westminster model of governance in 1983.14 Jamaica and Trinidad and Tobago have on a few sporadic occasions declared limited states of emergency and resultant suspension of some civil and political rights so as to deal with crime, but this has always been done within constitutional limits and subject to review by constitutionally sanctioned tribunals. For these reasons the Inter-American Convention and the Inter-American Court were never engrafted into the Caribbean juridical culture; in the same way that these institutions never became part of the legal systems in the United States and Canada. Bill of Rights Interpreted by Independent Judiciary The history and tradition of respect for human rights inherited from the British and enlarged by the inspiration of international human rights treaties, became enshrined in the Bill of Rights of the constitutions of the newly independent Caribbean States and jealously guarded by a fiercely independent judiciary. In the immediate postindependence era, the Caribbean courts declared themselves to be the guardians of the Constitution and the guarantors of the human rights of the citizen. In a famous assertion of this role, Wooding CJ said the following in the case of Collymore v Attorney-General of Trinidad and Tobago15: 12 13 14 15
Human Rights” Center for Human Rights and Global Justice Working Paper, November 1, 2005. Ibid. at p. 4. Ibid. at pp. 7-10. See: Francis Alexis, supra, note 7. (1967) 12 WIR 5, at p. 9.
5 The Inter‐American System of Human Rights and the Commonwealth Caribbean “I am … in no doubt that our Supreme Court has been constituted, and is, the guardian of the Constitution, so it is not only within its competence but also its right and duty to make binding declarations, if and whenever warranted, that an enactment passed by Parliament is ultra vires and therefore void and of no effect because it abrogates, abridges or infringes, or authorizes the abrogation, abridgment or infringement of one or more of the rights and freedoms recognized and declared by [the Constitution].” As the ultimate interpreters of the Constitution and of the rights and freedoms that it enshrines, Caribbean courts have found and punished violations of the Constitution by the executive,16 by the legislature,17 and by the courts themselves.18 In this way, the courts have not only reinforced their role as guardians of the Constitution; they have also emphasized the status of the Constitution, as the supreme law of the land and the “grundnorm” of the domestic legal order.19 It is important to appreciate that in discharging its role as guardians of human rights declared in Constitution, the Caribbean judiciary has not adopted a perspective that could in any way be described as insular, parochial or nationalistic; quite the opposite. Caribbean judges accept that the Bill of Rights was derived not merely from the common law heritage but inspired by international human rights treaties and must therefore be interpreted in accordance with those treaties. For example, in Attorney-General v Antigua Times Ltd20 the court drew upon the 1950 European Convention on Human Rights in deciding that artificial persons could claim the protection of the Bills of Rights.21 Minister of Home Affairs v Fisher22 went against established assumptions of domestic law in holding that the word “child” in the Bermuda Constitution included illegitimate children of a Jamaican mother who had married a Bermudan. It was emphasized that the Constitution was to be interpreted on broad principles recognizing the protection of the family and rights of the child 16 17 18 19 20 21
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See Hochoy v NUGE and Others (1964) 7 WIR 174; Hinds v R (1975) 24 WIR 326; and C.O. Williams Construction Ltd. v Blackman (1994) 45 WIR 94. Hinds v R (1975) 24 WIR 326; Independent Jamaica Council for Human Rights (1998) Ltd. and Others v Marshall-Burnett and Anor. (2005) 65 WIR 268. Maharaj v Attorney-General of Trinidad and Tobago (No. 1) [1977] 1 All ER 411. Mitchell v DPP [1986] LRC 35. [1976] AC 16, at 24. The Court stated:“The Universal Declaration, as its title suggests, is concerned mainly, if not exclusively, with human rights, that is with the rights of individual human beings, but the European Convention appears to apply to artificial persons, at least in some of its articles… With that ancestry it would not be surprising if chapter I of the Constitution of Antigua were to apply as well to natural persons…” Ibid. [1979] 3 All ER 21.
6 The Hon. Mr. Justice Winston Anderson, JCCJ expressed in the UDHR, Article 8 of the ECHR and decisions by the ECHR on this article, the Universal Declaration of the Rights of the Child, and Article 24 of the International Covenant on Civil and Political Rights. Speaking for the Court, Lord Wilberforce said that these antecedents call for a generous interpretation of the Constitution avoiding what has been called “the austerity of tabulated legalism”.23 Similarly, the decisions of international human rights bodies were accepted as aids in deciding the issue of whether the mandatory death sentence was contrary to the constitutional prohibition against inhuman and degrading treatment. In the landmark cases of Spence v The Queen24 and Hughes v The Queen25 the Eastern Caribbean Court of Appeal studied and adopted findings in reports by the Inter-American Commission which had found the mandatory death penalty to be unlawful because it proscribed individualized sentencing, and did not take into account the personal culpability of the accused. Sir Dennis Byron CJ (as he then was; now President of the Caribbean Court of Justice (“CCJ”)) expressly relied on the jurisprudence developed in the Inter-American System. He said:26 “Over the past two years the Inter-American Human Rights Commission has been considering the meaning of [the provision against inhuman and degrading treatment] and its impact on the mandatory death penalty in relation to cases coming from the Caribbean. The cases that are relevant to this issue have been Downer and Tracy v Jamaica (2000) (unreported), Baptiste v Grenada (2000) (unreported), and Thompson v St Vincent and the Grenadines (2000) (unreported). I have studied these judgments and conclude that the principles they espouse are consistent with the provisions of s 5 of the Constitution [of St. Vincent and the Grenadines].”27 In similar vein, the Supreme Court of Belize upheld the traditional land title rights of the indigenous Mayan community in the case of Cal v Attorney-General of Belize.28 This was partly because the Inter-American Commission had earlier made relevant findings for the Mayas based upon Belizean obligations to indigenous peoples under the OAS Charter. According to the Chief Justice the Inter-American norms “resonated with certain provisions of the Belize Constitution”.29 And to similar effect, the CCJ in the case of Trinidad Cement Limited v Guyana30 referred to and relied upon the 23 24 25 26 27
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Ibid at p. 25. (1999) 59 WIR 216 (CA), upheld in [2001] UKPC 35 (PC). (2002) 60 WIR 156 (CA). The appeal was dismissed in [2002] UKPC 12 (PC). Ibid at p. 172, para 41 (CA). The approach taken by the ECCA in Spence and Hughes was expressly approved by the Privy Council which, referred with approval to developments in the Inter-American Human Rights System. (2007) 71 WIR 110. Ibid at p. 150, para 118. [2009] CCJ 5 (OJ)
7 The Inter‐American System of Human Rights and the Commonwealth Caribbean decision of the Inter-American Court in Velasquez Rodriquez to come to the conclusion that punitive damages could be awarded against a state in an international proceeding in certain circumstances. Albeit in the Trinidad Cement case the CCJ held that such an award would not be appropriate on the facts of that case. It will therefore be obvious that Caribbean courts have freely drawn upon the InterAmerican System and other human rights regimes in order to enrich the rights enjoyed under the Caribbean Bill of Rights. Indeed, in specific instances the Executive has mandated the judiciary to consider international human rights treaties; see, for example, sections 39, 40, 138, 154 and 212 of the Constitution of the Cooperative Republic of Guyana.31 The critical point remains that the statement of human rights in Caribbean constitutions and the willingness of Caribbean courts to consider and apply international human rights norms in the interpretation of those rights, has provided significant protections to the Caribbean people. That openness of mind of our judiciaries is accentuated by the rules of eligibility of the Caribbean Court of Justice which allows for jurists trained in the common law as well as the civil law to be appointed Justices on the Court; indeed, one civil lawyer has been appointed and now serves on the Bench. Caribbean jurists have served on several global human rights tribunals, often as the President: a case in point being Sir Dennis Byron, the current CCJ President, who is at this moment terminating a distinguished stint as President of the United Nations International Criminal Tribunal for Rwanda.32 Constitutional Supremacy Notwithstanding the open-textured nature of Caribbean jurisprudence, one principle is held sacrosanct: the principle of constitutional supremacy. The bedrock principle is that the Constitution is the supreme law and is the source of legitimacy of all other laws affecting the individual. The rule of law is maintained by the subjection of the executive, the legislature, and the judiciary, to the supremacy of the Constitution. It is that rule of law which has undergirded almost unbroken representative democracy; respect for human rights; and the orderly evolution and development of the Caribbean society. Caribbean constitutional supremacy binds us and defines us, and it is from within its precincts that we purport to proffer a distinctive jurisprudence to the world.
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Act No. 2 of 1980. Another example is Patrick Robinson, a Jamaican, who now serves as the President of the United Nations International Criminal Tribunal for the Former Yugoslavia.
8 The Hon. Mr. Justice Winston Anderson, JCCJ However, it is precisely with the sacred principle of Caribbean constitutional supremacy that recent decisions of the Inter-American Court seem to come into conflict. Sir Dennis in Spence33 and Hughes34 had hinted that the Eastern Caribbean Supreme Court did not accept that human rights agreements such as the American Convention could override clear statements in domestic law or the constitutions of sovereign independent Caribbean states. But, in Boyce and Joseph v Barbados,35 and Cadogan v Barbados36 the Inter-American Court, in conformity with its statute it must be said, has taken a dramatically different approach. In both cases the Court ruled that aspects of the laws and Constitution of Barbados were contrary to the right to life as provided in the Inter-American Convention and ordered Barbados to amend both in order to come into conformity with its international obligations. In short, the Barbadian Constitution was considered subservient to the American Convention. I have elsewhere37 pointed to the juridical as well as visceral difficulties to which this gives rise. A related difficulty concerns the order by the Inter-American Court to the Executive to ensure amendment of the laws and Constitution. Under our Westminster system underpinned by the doctrine of separation of powers an order to the Executive, as representative of the State in foreign affairs, cannot bind Parliament, which enjoys primacy in law-making. To illustrate, the government would encounter real difficulty in complying with the order where it does not command the necessary parliamentary majority to alter entrenched or deeply entrenched provisions in the Constitution. Even greater difficulty would be encountered if modification of the impugned provisions in the Constitution required an affirmative vote in a referendum; or worse still, a special majority vote in that referendum. The Inter-American Court’s view of the role of the Caribbean judiciary is also difficult to reconcile with the traditional view of our judges being the guardians of the Constitution. In the Boyce and Joseph case the Inter-American Court chided38 the Privy Council for finding that the Offences against the Person Act was protected by the savings law clause in the Constitution. In its view the Privy Council conducted too narrow an examination of the validity of the Act. The analysis should not have been limited to the issue of whether the Act was constitutional. Rather, the question should have also been whether it was “conventional”, i.e., whether it was consistent with the American Convention. In the view of the Inter-American Court, Barbadian courts, including the Privy Council and now the CCJ, must address not merely the matter of 33 34 35 36 37 38
(1999) 59 WIR 216 (CA), upheld in [2001] UKPC 35 (PC). (2002) 60 WIR 156 (CA). The appeal was dismissed in [2002] UKPC 12 (PC). IACHR, November 20, 2007. Series C No. 169. IACHR, September 24, 2009. Series C No. 204. See supra, note 1. Boyce et al v Barbados, IACHR, November 20, 2007. Series C No. 169, at para. 78.
9 The Inter‐American System of Human Rights and the Commonwealth Caribbean the constitutionality of the law but also whether the law restricts or violates the rights recognized in the American Convention. 39 I do not recall any discussion of the juridical basis upon which the highest court could properly undertake this task where the Inter-American Convention though ratified or otherwise accepted by the State at the international level had not been incorporated into domestic law by legislation. This is in fact precisely the legal situation in Barbados and in the three other Caribbean states to have accepted the Convention. In other cases, the Inter-American System has ordered new trials in circumstances where the highest domestic court has pronounced that the trial at first instance had been fair, and that the Court of Appeal had not erred in dismissing the appeal from conviction or sentence.40 Although the Inter-American Court probably considers that it is competent to issue such an order which is to be obeyed by the “state” the fact of the matter is that an order to the Executive does not necessarily translate into an order to the Judiciary given the constitutional doctrine of separation of powers. There is also, and I must say this, the thoroughly unsatisfactory situation in which there appears to be conflicting edicts emanating from the highest domestic court and the Inter-American Court relating to the status of their respective rulings. In Briggs v Baptiste,41 the Privy Council reaffirmed the constitutional principle that international conventions do not alter domestic law except to the extent that they are incorporated into domestic law by legislation. But even where the American Convention becomes directly enforceable, whether by virtue of the doctrine of “legitimate expectation” or by virtue of legislative incorporation, the Privy Council’s position was that it was for the national courts to consider whether such orders were made within the limits of the jurisdiction conferred on the Inter-American Court by the American Convention. This is because, in the words of their Lordships: “The interpretation of the Constitution is a matter for the national courts, and its scope and effect in domestic law cannot be enlarged by orders of an international court made outside the terms of the Convention to which the Government … assented”.42 39 40
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Ibid. This information was given by Mr. Ken Pantry, former DPP and current Dean of the Faculty of Law, University of Technology, at an IAS Seminar held at the Norman Manley Law School on Saturday, October 9, 2010; this was attended by the present writer. Cf. Cadogan v R (No. 1) (2006) 69 WIR 82; Cadogan v R (No. 2) (2006) 69 WIR 249; Cadogan v Barbados, IACHR, September 24, 2009. Series C No. 204. (1999) 55 WIR 460. Briggs v Baptiste (1999) 55 WIR 460 at p. 472: “In determining such questions their Lordships would expect the national courts to give great weight to the jurisprudence of the Inter-American Court, but they would be abdicating their duty if they were to adopt an interpretation of the Convention which they considered to be untenable.” This point
10 The Hon. Mr. Justice Winston Anderson, JCCJ There is another sense in which the work of the Inter-American System raises questions of constitutional governance. It is the perception, whether held rightly or wrongly, that Inter-American Human Rights institutions sometimes function to frustrate the carrying out of constitutionally lawful and legitimate sentences of the court and thus undermine the rule of law. We are of course, here speaking of the sentence of death. In the words of Lords Goff and Hobhouse dissenting in Thomas v Baptiste43 the Inter-American Human Rights Commission (and the United Nations Human Rights Commission): “… espouse a policy of discouraging capital punishment wherever possible and, in accordance with that policy, appear to see postponement of an execution for as long as possible as an advantage since it may improve the chances of commuting the sentence or quashing the conviction (see also Johnson v Jamaica (1996) 1 Butterworths Human Rights Cases 37). There is thus a direct conflict between the policy of the Commission and the enforcement of the law of the [State].” It will be recalled that this alleged procrastination in the hearing of petitions so as to ensure the Pratt & Morgan five-year window for executions is closed and death sentences commuted was the principal reason for the Trinidad and Tobago withdrawal from the Inter-American Convention and the Inter-American Court in 1998. As Chief Justice Conteh of Belize has said: “Insofar as the death penalty is part and parcel of the penal armory of the states concerned and the right of a condemned person to petition the International Human Rights bodies has been upheld by the Privy Council, I think that it is only salutary that the Inter-American Commission on Human Rights proceed with dispatch to hear and determine petitions submitted to it.”44 Ancillary to the foregoing considerations is the fact that there are good prudential reasons for Caribbean countries to adopt a common policy towards the Inter-American System. For only one country to accept the binding decisions of the Inter-American
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could be important in Boyce & Joseph and Cadogan to the extent that it is reasonably argued that the IACHR order required the deletion of section 26 of the Barbados Constitution and that the mischief identified by that Court was the “saving” of the mandatory death penalty which could have been cured by appropriate amendment of section 26. In short the issue of whether an International Court has “over-reached” the competence conferred by the State could seem probably a matter for the domestic court. (1999) 54 WIR 387 at p. 435. “Privy Council and the Inter-American System on Human Rights and Caribbean Constitutional Provisions” delivered at Raddison Fort George Hotel on 20th July 2001 by the Hon. Abdulai O. Conteh, Chief Justice of Belize.
11 The Inter‐American System of Human Rights and the Commonwealth Caribbean Court to, for example, amend its laws and Constitution and grant peculiar judicial redress to litigants inevitably places that country at odds with its sister Caribbean territories not falling under the jurisdiction of the Inter-American Court. This necessarily produces additional challenges (and possibly tensions) in the creation of a common jurisprudence for the Caribbean. Nowhere are such challenges likely to be more keenly felt than in the CCJ which was designed to develop an indigenous Caribbean jurisprudence on the basis of being the final appellate court for all Commonwealth Caribbean countries.
Conclusion Permit me to close as I began. Caribbean courts consider seriously and respectfully the persuasive value of the recommendations by the Inter-American Commission and the rulings of the Inter-American Court. We are open to the possibilities for evaluating and accepting, where appropriate, regional and global human rights norms into Caribbean jurisprudence thereby enhancing and enriching the language and culture of Caribbean human rights discourse.45 For similar reasons, Caribbean courts have accepted as being both permissible and desirable the competence to draw upon decisions of other regional and global human rights bodies, as well as decisions of supreme courts which grapple with these issues. The market-place of ideas, which is accessed through international comparative human rights law, provides an excellent opportunity to identify “best practices” and the most appropriate solution to specific problems coming before Caribbean courts. Indeed, as I have already pointed out, at least one Caribbean Constitution requires that the court, in adjudicating on human rights matters, “shall pay due regard” to all relevant international treaties, covenants and declarations on human rights.46 But judicial comity cannot permit subjugation of our legal traditions and systems of governance to other systems of law. Nor can Caribbean courts, without demur, allow the executive, acting alone, to effect radical changes in the other branches of government or to the Constitution, without appropriate constitutional modification. And this for the simple reason that Caribbean courts are creatures and servants of the Caribbean constitutions and Caribbean judges are sworn to uphold the constitutional rule of law. 45 46
This turn of phrase derives from 2010 email correspondence from Ms Malene Alleyne, LLB, student at the Norman Manley Law School, Jamaica. See Constitution of the Co-operative Republic of Guyana, Act No. 2 of 1980, sections 39, 40, 138, 154, 212.
12 The Hon. Mr. Justice Winston Anderson, JCCJ I hope that we can find a way to make the Caribbean system of law and the InterAmerican System not contradictory but complementary so that our two legal traditions can contribute to and enrich each other.
Thank you.
©Winston Anderson. All rights reserved.
