Reshaping Commonwealth Caribbean Jurisprudence: From Pratt and Morgan to Joseph and Boyce

Abstract

This contribution reopens the discourse on Pratt and Morgan v R from the perspective of the changing jurisprudence in the Commonwealth Caribbean. We note a new attitude, perhaps a slight shift towards greater acceptance of international human rights norms in assisting to define our constitutional laws. The tendency to construct Commonwealth Caribbean constitutions in terms of the existing common law has already been noted. The jurisprudence is changing and the Privy Council is developing constructs which allow it to accommodate itself to the change. Not the least significant is that the Caribbean Court of Justice in AG and Others v Joseph and Boyce has had an opportunity to make its contribution to this debate, and has given a very important indication of where the jurisprudence is heading.

Those who had expected the new Caribbean Court of Justice to lead the charge in support of the death penalty will no doubt be sorely disappointed. As appointments to the US Supreme Court have demonstrated over the years, judges with security of tenure can be remarkably free of any expectation the political directorate may have had of them. It is a question of some importance whether or not a judge's security of tenure can be effectively protected if the existence of the court to which he belongs is not protected. The Judicial Committee of the Privy Council answered that question in the negative, and it was on that answer that Jamaica's attempt to establish the Caribbean Court of Justice as its final court foundered. Nevertheless, what we have seen from the Caribbean Court of Justice's first outing is a bold court willing to take on the difficult issues.

Keywords: commonwealth caribbean, law, constitution, human rights, death penalty, appeals, judicial committee

JEL Classification: I18, K1, K10, K14, K19, K30, K39, K40, K41, K42, K