THIS WAS BOUND TO OCCUR: NONE OF OUR COURTS ARE RESPECTED IN OUR HOME JURISDICTIONS. THEY ORIGINATED BY ACCIDENT OR CIRCUMSTANCE AND THE CARIBBEAN COURT (CARICOM COURT) IS A WORSE VERSION OF OUR POORLY STRUCTURED NATIONAL COURTS! AND SADLY - DESPITE OUR HABIT IN THE CARIBBEAN OF JUST CLAIMING SOMEONE IS A GREAT JUDGE - NO ONE ON THAT COURT HAS THE GRAVITAS TO HEAL THIS SITUATION BECAUSE NONE HAVE ARCHIVED ANYTHING UPON WHICH THE PUBLIC CAN ANCHOR SUFFICIENT INSTITUTIONAL TRUST!
POLICY ADVICE NOTE 304-26 Re: THE PROPER ESTABLISHMENT OF REGIONAL COURTS
By Professor Gilbert Morris
The eastern Caribbean court has distinguished itself as productive of insight judgements of superior judicial integrity. The Caribbean court - a creature of CARICOM has not!
Why?
Both courts were poorly established:
1. In CARICOM, there is no a single member state in which the courts are regarded highly by citizens
2. The mantra for establishment was not we have a new judicial insight…so let’s build a court on that. Rather it was a negative default posture that said, instead of the Privy Council, let’s establish a court!
3. But that is not a proper philosophical or rational ground upon which to establish a court; as a default mode from the colonial system.
4. What is CARICOM Jurisprudence…what is the new philosophical thinking and what are its 3 or 5 principles that - as a starting point - distinguishes it from what was there before?
The reason CARICOM could not distinguish a new jurisprudential model is that in none of the 15 member states have the national courts established a judicial mantra that is distinct. There are no distinct, law journal articles or law books in the region of sufficient depth to initiate and announce a new jurisprudence.
Mr Justice Benjamin Cardozo of the U.S. Supreme Court 1932-1938, wrote “The Nature of the Judicial Process” extended from his Yale Lectures, where he outlined four modes for judicial interpretation:
The Four Methods of Interpretation
1. Method of Philosophy: Follows the path of logical progression and legal consistency, extending past rules to their logical conclusions.
2. Method of History: Traces the historical origin and evolution of a legal rule to see how past traditions should guide current meaning.
3. Method of Custom: Looks at community habits, social standards, and business practices to shape rules that reflect everyday behavior.
4. Method of Sociology: Prioritizes social justice, community welfare, and public utility, allowing the judge to act somewhat like a legislator when filling gaps in the law.
Before that, Blacks Law Dictionary in the English Legal Tradition was the foundational test for English law.
Where is our text that gathers up our experience and judicial insights in a single or series of documents?
What judicial philosophy are we following and what judicial formulas are we cultivating in our judgements?
We have no clue!
We just wanted a court based on racial ideology and this is exposed in the shocking irony that we establish a court merely to reject the British Privy Council, but in the new court our judges carry British titles.
Therefore, we want to reject the British courts but we are not sufficiently confident to establish our own titles to the extent that we need them, which exposes a fundamental insecurity to the point of schizophrenia!
We know that in CARICOM member states, 90 plus percentage of cases against governments fail, the opposite of what happens in the legitimate system like New Zealand, which has the finest court system in earth followed by Australia.
In our systems, governments ignore the courts, there is no leverage for the courts to compel compliance because of our corrupt systems and the citizen is thus disadvantaged by a government that disobeys the courts.
What if instead, before we established courts like the Caribbean Court of Justice (it should be “CARICOM Court of Justice”), we:
1. Commissioned an audit of the court systems of the 15 member states…so that the clams, complaints and concerns of citizens are assessed transparently? That would have generated an immediate trust factor for the courts.
2. Commissioned a series of forensic articles on the assessment and a theory of CARICOM constitutional law and Jurisprudence?
3. Collected those articles into a book and follow that by inviting CARICOM graduate scholars to write research papers on those papers and the book. That would have produced a deep intellectual foundation for a CARICOM Court of Justice”
4. Now imagine we established at UWI, a CARICOM judicial college, at which all those articles, books and research papers became the curriculum? That would unify a judicial philosophy as the foundation of a new court system based on a CARICOM social and institutional perspective, rooted in the citizen’s experience with our judicial culture: that is literally the meaning of “jurisprudence”. Failing to do that means we are just hacking through with no anthropological or cultural foundation to our institutional basis for the court except we want our own tings…and yet with British titles.
5. If we followed my proscription, when it was time to seek judges for the ‘CARICOM Court of Justice’, we would cross examine them in some CARICOM wide judicial hearing, determining whether they adhered to our judicial philosophy and how they adhered. This cultivates trust in the institution and by this means, the CARICOM Court feels owned by CARICOM citizens. We failed to take this approach because of our slapdash method of doing things, which is a reprobate and retrograde approach to institutional establishment.
I’ll not entertain the nonsense we usually prattle in which we say “oh I know judge so and so, he’s my friend and I can speak for him”. How the devil is your private perspective or delusion sociology? It is exactly that character of institutions that they don’t depend upon and cannot be defended by personal opinion.
CARICOM member politics is strickened by patronage, partisanship, economic oligarchy and plutocracy.
We are a series of cronyocracies!
As such, and implicitly, any legitimate CARICOM court would almost necessarily begin with astonishingly clarifying rulings against our governments, clearing out the old plantation structures which we never changed and constituent with a new judicial thinking…founded on our own texts and philosophical writings…we would remaking CARICOM societies according to a new judicial model as happened in the U.K. in the Somerset Case in 1772 and in the U.S. in Marbury V. Madison 1803.
Until we learn the meaning of institutional development and the process of anthropologising our institutional establishment, we’ll merely copycat existing institutions by default, right down to copying their titles.
Professor Gilbert Morris
