scholarly journals The Post-Colonial Constitutional Order of the Commonwealth Caribbean: The Endurance of the Crown and the Judicial Committee of the Privy Council

2020 ◽  
pp. 144-169
Author(s):  
Derek O’Brien
Keyword(s):  
Privy Council ◽  
Post Colonial ◽  
Constitutional Order ◽  
Commonwealth Caribbean

The Interpretation of Commonwealth Caribbean Constitutions

2020 ◽  
pp. 554-581
Author(s):  
Derek O’Brien
Keyword(s):  
Public Participation ◽  
Holistic Approach ◽  
Conservative Approach ◽  
Privy Council ◽  
Constitutional Order ◽  
Court Of Justice ◽  
The Caribbean ◽  
Commonwealth Caribbean ◽  
Caribbean Court Of Justice ◽  
Interpretive Process

This chapter focuses on the differing approaches of the Judicial Committee of the Privy Council and the Caribbean Court of Justice towards the interpretation of the independence Constitutions of the Commonwealth Caribbean. Critiquing the lack of autochthony and the lack of meaningful public participation in the drafting of the region’s independence Constitutions, a number of influential Caribbean constitutional scholars have advocated a much more judicially creative approach to the interpretation of the region’s constitutions than the more conservative approach that has dominated the JCPC’s more recent jurisprudence. I call the approach advocated by these scholars the holistic approach because it treats the constitution as a whole as greater than the sum of its parts. The Caribbean Court of Justice in two recent judgments on appeals from Barbados and Guyana respectively has now adopted this approach. Notwithstanding its undoubted attraction in terms of resolving some of the deficiencies and flaws in the region’s independence Constitutions, it will be argued that the holistic approach risks undermining not only the whole interpretive process, but also the whole constitutional order.

scholarly journals The Caribbean Court of Justice: A New Judicial Experience

2009 ◽  
Vol 37 (2) ◽  
pp. 219-238 ◽  
Author(s):  
Désirée P. Bernard
Keyword(s):  
Legal Profession ◽  
Caribbean Region ◽  
Privy Council ◽  
Appellate Courts ◽  
Court Of Justice ◽  
The Caribbean ◽  
Commonwealth Caribbean ◽  
Caribbean Court Of Justice ◽  
Court Of Appeal

The inauguration of the Caribbean Court of Justice in April 2005 represented the culmination of aspirations in earlier years to establish a court of last resort for the Caribbean Region to replace the Judicial Committee of the Privy Council (The Privy Council) which was and still is for most Commonwealth Caribbean jurisdictions, the final court. These aspirations were endorsed by the legal profession through the Organisation of Commonwealth Caribbean Bar Associations (OCCBA) over thirty years ago, although the idea of such a court was not an original one having been contemplated early in the last century. The court was envisaged as a Caribbean Court of Appeal with an appellate jurisdiction hearing appeals from domestic appellate courts and an original jurisdiction to interpret regional treaties.

The Power of Social Movements and the Limits of Pluralism: Tracing Rastafarianism and Indigenous Resurgence through Commonwealth Caribbean Law and Culture

2015 ◽  
Vol 43 (2_3) ◽  
pp. 136-164
Author(s):  
Emily Becker
Keyword(s):  
Social Movements ◽  
Raw Material ◽  
Political Systems ◽  
Colonial Era ◽  
Post Colonial ◽  
Rights Protection ◽  
Caribbean Culture ◽  
Cultural Boundaries ◽  
History Of ◽  
Commonwealth Caribbean

In the post-colonial era, social movements in the Commonwealth Caribbean have empowered citizens to reclaim, redefine and further develop their identity. These movements, combined with a history of colonialism and transatlantic slavery in the region, have yielded a Caribbean culture “too diverse to be labeled.” Indeed, the Caribbean culture is composed of “a bastion of discrete identities as well as quarries of very invaluable raw material that can be used to build the bridges across cultural boundaries.” These distinct but potentially overlapping identities make the Commonwealth Caribbean a truly pluralistic region, at least at the cultural and social level. As modern legal and political systems, however, the states of the Commonwealth Caribbean have, in many ways, failed to sufficiently protect the non-dominant groups within Caribbean. Indeed, attempts to balance the majoritarian demands of democracy against the pluralist notion of minority rights protection have landed largely on the side of majorities.

Constitutional History

2020 ◽  
pp. 69-91
Author(s):  
Yvonne Tew
Keyword(s):  
Social Contract ◽  
Historical Context ◽  
The State ◽  
Constitutional History ◽  
Post Colonial ◽  
Constitutional Order ◽  
Narrow Focus ◽  
Constitutional Construction

This chapter explores the constitutional founding and road to independence in the post-colonial states of Malaysia and Singapore. It provides the historical context for understanding the constitution’s text and the foundations of the constitutional framework. Understanding the broader purposes that motivated the constitutional project provides us with the context necessary to interpret the constitutional text. For example, Malaysia’s constitutionalization of Islam as the state religion was part of a social contract memorialized in a constitutional bargain that also sought to protect minorities and individuals. This historical context is vital for understanding the role that religion would play in the new constitutional order. More generally, the constitutions of Malaysia and Singapore set in place an overarching framework for governance that envisaged continuing constitutional construction in these independent democracies. Rather than mandating a narrow focus on the framer’s specific expectations, as reflected by the Singapore Court of Appeal’s originalist approach, constitutional history helps reveal the foundational elements of a polity that can guide a contemporary adjudication approach. Faithfulness to the constitution calls for a deeper understanding of the foundational principles that underlie its structure and rights guarantees.

On the Disruption of Post-colonial Constitutional Order: Hans Kelsen or Carl Schmitt?

ICL Journal ◽  
2012 ◽  
Vol 6 (3-4) ◽  
Author(s):  
Syed Sami Raza
Keyword(s):  
Legal Positivism ◽  
Carl Schmitt ◽  
Liberal Theory ◽  
Constitutional Theory ◽  
Post Colonial ◽  
Theoretical Contribution ◽  
Constitutional Order ◽  
The Supreme Court ◽  
Liberal Constitutionalism ◽  
Hans Kelsen

AbstractIn wake of a coup d′état in 1958, the Supreme Court of Pakistan is asked to decide on its legality. The court, faced with lack of precedent, relies on Hans Kelsen's legal positivism. Over the next five decades the key theoretical basis of the decision is summoned in several other cases in different post-colonial states. This essay develops a critique of the application of Kelsen's theory. The aim of the critique, as well as an added theoretical contribution, is that I engage Carl Schmitt's critique of Kelsen. Accordingly, I redeem the 1920s debate between Kelsen and Schmitt in order to caste critical light on the court decisions. Moreover, I engage Schmitt's own constitutional theory in order to provide an alternative answer to the question of constitutional disruption. The task is twofold: first, to evaluate Kelsen's (liberal) constitutional theory, which purportedly seeks to answer the non-liberal or non-democratic challenge posed by constitutional disruption and dictatorship, and second, to explore the democratic element in the non-liberal theory of Schmitt. My conclusion is that although Kelsen gives politically correct principle of “the efficacy of change” as the basis of legality of constitutional disruption, however, the main steps in his theory do not support the principle. Moreover, the principle draws him away from his liberal constitutionalism. On the other hand, Schmitt's explanation of the same principle based as it is in a non-liberal or realist theory, answers well the question of disruption and dictatorship. Thus the courts that engage Kelsen remain hardpressed to defend their decisions, while those other courts that challenge Kelsen come close to Schmitt.

scholarly journals The Original Living Tree

2019 ◽  
Vol 28 (1) ◽  
pp. 29-36 ◽  
Author(s):  
Asher Honickman
Keyword(s):  
Attorney General ◽  
Supreme Court Of Canada ◽  
Constitutional Interpretation ◽  
Privy Council ◽  
Same Sex ◽  
Deep Roots ◽  
Living Tree ◽  
Constitutional Order ◽  
The Supreme Court ◽  
Constitutional Tradition

One of the main arguments in Canada in favour of the “living tree” doctrine is that it has deep roots in our constitutional tradition. As the Supreme Court of Canada said in Reference Re Same-Sex Marriage, the living tree is “one of the most fundamental principles of Canadian constitutional interpretation.” The argument goes something like this: beginning with the famous “Persons case” of 1929 (Edwards v. Canada(Attorney General)), the Judicial Committee of the Privy Council recognized the Constitution to be a living tree, capable of evolving to meet new social and economic realities, and this method of constitutional interpretation has remained fundamental to Canada’s constitutional order ever since.

scholarly journals The Vestiges of Colonial Constitutionalism

2020 ◽  
pp. 630-649
Author(s):  
Jane E. Cross
Keyword(s):  
Political Development ◽  
Political Ideology ◽  
Regime Change ◽  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
Post Colonial ◽  
Westminster Model ◽  
Commonwealth Caribbean

Post-colonial Caribbean constitutions have incorporated inherited political constructs. Using these legacies, Caribbean countries have struggled to adapt their constitutional components after independence. Notably, the pathways of post-colonial constitutions have distinct progressions in common law and civil law countries. In Commonwealth Caribbean countries, new nations adopted constitutions that incorporated the Westminster model. After decades of independence, these constitutions have remained relatively static even though there have been efforts to update and reform their outmoded features. In contrast, after independence, civil law countries have undergone numerous, significant modifications. Cuba provides a compelling example of how post-colonial constitutions have evolved due regime change and political ideology. In both legal systems, democratically reinforced political development remains an important vehicle for altering or eliminating the vestiges of colonial constitutionalism

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