The UWI Cave Hill Student Law Review (Volume 28)

The University of the West Indies FACULTY OF LAW CAVE HILL CAMPUS BARBADOS

© Copyright 2022

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Theviews expressedbythecontributorsarenot necessarilythoseofthe Editorial Board, The University of the West Indies or the Faculty of Law. Whilst every effort has been made to ensure that the information contained in this law review is correct, the Editors and the authors cannot accept any responsibility for any errors or omissions, or for any consequences resulting therefrom.

© 2022 Individual authors

Ricardo Bates-Sealy Editor-in-Chief

INTRODUCTION TO THE EDITION

Ricardo Bates-Sealy Editor-in-Chief

It is my great pleasure and privilege to introduce the 28th Volume of the University of the West Indies, Cave Hill Campus, Student Law Review (UWICHSLR). This year's edition of The Student Law Review is especially significant for a number of reasons. This is primarily due to it being the first Student Law Review to be published in 5 years.

On the denouement of the Faculty of Law's 50th anniversary, this Law Review aims to inculcate and plaster a great boundless appetite for intellectual exploration amongst students

The Student Law Review in the past and now has been providing a platform for interesting ideas to be debated and advanced by the very best across the region. These regional students being held to the highest esteem via the Editorial Board, and who clearly desire to engage with challenging issues across the diaspora.

Before I go any further, I would like to congratulate all of the authors/writers on the excellent quality and significance of their contributions to legal writing. As a rigorously edited Law Review, the (UWICHSLR) could also not exist without the dedication of its network of editors, and I am thankful to them for their commitment to difficult expectations. They should also be commended for their informative remarks, which have helped to improve the quality of the entries.

(The Oxford University Undergraduate Law Journal) was used as a model for this Student Law Review, which allows it to retain a high level of integrity and be classified among the best of the best. Finally, I would like to thank Annike Harte for her contributions to this Law Review; without her persistence, intelligence, and passion, this edition may not have been possible.

To sum up, I am more humbled than ever before by the genius of my peers as I close my stint as Editor-in-Chief. My sincere aim is that you, the reader, will be inspired, informed, and eager for the future after reading the 28th Volume ofThe University of the West Indies, Cave Hill Campus, Student Law Review (UWICHSLR).

MAY YOU FIND LIGHT AND SEE VISION AS YOU EMBARK ON THIS JOURNEY.

FOREWORD

Professor Eddy Ventose Dean (Faculty of Law)

The UWI Cave Hill Law Society has its origins with the first graduates of the Faculty of Law when it opened in 1970. The Faculty of Law recently celebrated its 50th Anniversary under the theme: ‘Cave Hill @ 50: Celebrating Excellence in West Indian Legal Education and Research’. The Student Law Review has been published by the Faculty of Law since 1976, with some intervals of inactivity between those periods.

What is clear is that this publication by the Law Society is in line with the mission of the Faculty of Law in facilitating research in Caribbean law. The Law Society, therefore, adds to this aim by allowing students to contribute to debates on topics of interest in Caribbean society.

Approximately 23 years ago, I started as Editor-in-Chief of Volume 14 of the Student Law Review and in these pages are contributions to Caribbean jurisprudence. In this regard, the current Volume does not disappoint. It is not surprising that this tradition has continued over the years with the Student Law Review, which boats publications from students across the L.L.B Programme in the Faculty of Law.

The range of topics included in Volume 28 in this Student Law Review reflects the wide range of subjects that students engage with at the Faculty of Law. Moreover, the articles show that our students have a keen appreciation for the law and its application within the context of Caribbean Society. No doubt this will bode well for the practice of law.

I wish to applaud the current Editor-in-Chief and the Editorial Board for continuing in this fine tradition with the publication of Volume 28 of the Student Law Review.

Professor Eddy Ventose Dean and Professor of Law

Prof. Eddy Ventose Dean (Faculty of Law)

Revisiting the Savings Law Clause: Where

are we now?

Tyrique Wilson*

I. INTRODUCTION

A topic that has been much discussed in recent months among Barbadians both local and abroad has been the country’s intention to transition its form of government, namely, a Constitutional Democracy, to a Democratic Republic.

The recognition of Queen Elizabeth II of the United Kingdom (“the Queen”) as Barbados’ official Head of State, after fifty-four years of Political Independence, arguably represents a reluctance on the part of the politicians of Barbados to rid themselves of their colonial past; obfuscating the very nature of what it means to be an ‘independent’ State. Despite long maintaining control of its ‘borders’, the removal of the Queen as Head of State has often been regarded as the most salient step towards notions of ‘true political sovereignty’.

Whilst the political impact of this intention has been profound, this, as much as the route towards transition, will be immaterial. Instead, I submit that this is merely a storm in a teacup as the vestiges of colonialism found in the savings law clause has done more to affect the lives of the citizens of Barbados than the mere existence of the Queen as Head of State. I will conduct an analysis of the Constitution and the manner in which the ‘Savings Law Clause’ has worked to subordinate the constitutional provisions to the dictates of ordinary pre-independence laws and in so doing, will formulate a more progressive way forward as articulated by recent cases.

* This paper was written during my first year of my L.L.B at The University of the West Indies Cave Hill Campus.

II. INDEPENDENCE CONSTITUTIONS & THE SAVINGS LAW CLAUSE

It is axiomatic that Commonwealth Caribbean constitutions have been forged out of British imperialism; and, consequently, they have derived much of their form from the unwritten constitutional principles and practices of the metropole or Westminster.1 Specifically,in theCommonwealth Caribbean,regionalleaderswere made to journey to London to engage in negotiations with Colonial Offices over the arrangements for independence and the terms of constitutional documents.2 This inevitably led to the transplantation of unwritten British concepts into our written constitutions, including the Westminster system of government. Independence Constitution-making, absented active participation of regional electorates, leaving their post-independence interests constitutionally unrecognized. The savings law clause has become a noose around the necks of the citizens of Barbados, preserving pre-independence colonial laws from constitutional challenge. This notion that all things “English” is better became especially true in the preamble of the constitution of Barbados, when it regarded the rights of its people as “confirmed by the Charter of Barbados”, a document emanating from Britain’s Civil War. This Eurocentric and in particular British articulation, unchangedto this day,emphasizes thecolonial history and captures the values of the enslavers and future colonizers and remains a significant stumbling block to the development constitutional jurisprudence of Barbados and of the society it aims to become.

In some constitutions, during this transitionary period, savings law clauses were included in the constitutions to promote the ‘continuity of the law’. But not in all. In those, including Barbados, there was no transition. These clauses were to remain forever until changed via referendum. It is arguable that this was simply another way of maintaining colonial dependency. This component worked to subordinate regional judicatures to the long established, British Common Law Precedent and Statutory provisions previously used to govern slave and post-emancipation plantation societies. In the case of Barbados, the General Savings Law clause acted

1Prof. Simeon McIntosh ‘Change Making Through Constitution Reform in the Commonwealth Caribbean’ (Constitutional Reform Forum Trinidad and Tobago, April 2013).

2 Prof. Simeon McIntosh ‘Change Making Through Constitution Reform in the Commonwealth Caribbean’ (Constitutional Reform Forum Trinidad and Tobago, April 2013).

to preserveall pre-independencestatutes from challenge, including laws whichmay be, and which patently are, incompatible with the fundamental rights and freedoms guaranteed by the Bill of Rights found in the Constitution.

It is against this backdrop, that the courts have previously adopted an ingrained formalist approach to the interpretation of the Constitution despite the warnings in Minister of Home Affairs v Fisher3 which stated, courts should avoid the austerity of tabulated legalism. Regional judges, in strict adherence to a literal interpretation traditionally given to statutory provisions, have failed critically to examine the role of socio-economic policy in the decisions emanating from English Courts. This has led to the existence of Roscoe Pound’s concept of mechanical jurisprudence, whereby, the law is merely found, declared and then invariably applied; failing to account for the diverse socio-political reality of the region 4

This formalistic approach was best illustrated in the watershed decision of AG v Boyce and Joseph5 . In this instance, in 2001, two persons were convicted and sentenced to the mandatory death penalty. They challenged the validity of a mandatory death sentence, filing constitutional motions seeking, inter alia, a stay of execution of their sentences. They argued that the InterAmerican Human Rights Commission needed to produce a clemency report for consideration by the Barbados Privy Council (the “BPC”) before the BPC could decide whether or not mercy should be accorded under section 78 of the Constitution of Barbados.

The Privy Council held that the law decreeing the mandatory death penalty for murder which was in force in Barbados when the Constitution came into effect, was an “existing law”. Therefore, in accordance with the dictates of the savings law clause in section 26 of the Constitution it could not be held to be inconsistent with or in contravention of any of the provisions of the fundamental rights and freedoms in the Constitution.

The unsurprising approach taken by the Privy Council has worked to stymie the development of local constitutional jurisprudence. Commonwealth Constitutions

3 [1979] 3 All ER 21.

4 Howard Malcolm ‘Towards the emergence of an Anglophone-West Indian Jurisprudence’ [1993] West Indian Law Journal 53

5 [2006] CCJ 1 (AJ).

have often been interpreted as merely codifying existing common law or statute instead of creating new legal rights and indeed new law in general.6

III. LEVERAGING NERVAIS

Considering the neglect of regional Parliaments to engage in Constitutional reform, the role of ensuring that the laws conform with the Constitution can no longer be the task of the legislature and the executive but that of the judiciary. Historical legal paradigms have been continually reborn in local courts, stymying the development of local jurisprudence. Moreover, our population has been continually disadvantaged as judges have invariably applied common law precedent which seldom accounts for our socio-economic and cultural realities.

Whilst time has not permitted us to determine the longevity of this effect on local courts, the outcome of R v Nervais7 laid the groundwork for contemporary critical legal analysis and eroded the archaic and austere approach to interpretation as mandated by the savings law clause. In this instance, having been found guilty of murder, the mandatory sentence of death was imposed by the trial judge. Nervais appealed his conviction and his sentence on the grounds that the verdict was unsafe and the sentence excessive, however, the Court of Appeal dismissed the appeal and affirmed the conviction and sentence. Thereafter, he appealed to the CCJ. In delivering its opinion, the CCJ declared that section 2 of the Offences Against the Person Act was inconsistent with sections 11 (c), 12 (1), 15 (1) and 18 (1) of the Constitution of Barbados to the extent that it provides for a mandatory sentence of death. The decision of the CCJ has dealt a death blow to the longstanding belief by localcourtsandscholars ofthesanctityofthesavingslawclause,andintheprocess, has ushered new possibilities for constitutional litigation in the Commonwealth Caribbean

This interpretation of the Savings Law Clause provided a new method through which local courts could circumvent the historically immunizing nature of the clause, ensuring the Constitution as a source of law is dynamic and independent of its imperialist origins.

6 Collymore v Attorney General of Trinidad and Tobago [1969] UKPC 11. 7 [2018] CCJ 18 (AJ).

IV. CONCLUSION

In closing, I refer to the apt summary of Ventose J in Ras Sankofa Maccabbee v The Commissioner of Police 8

“It is incongruous that the Constitution which guarantees that every person is entitled to certain fundamental rights and would deprive them purely because the deprivation had existed prior to the adoption of the Constitution.”9

Our courts must levy the opinion in Nervais10 in interpreting the constitution as a whole and squaring it historical and legal contexts to promote a consistent or coherent vision shaped by all of its provisions.11 If the purpose of the constitution is to enshrine what we believe to be fundamental rights of our citizens, local courts ought to take it in its broadest sense, in the absence of Parliamentary reform, to achieve that goal.

8 [2017] SKBHCV2017/0234

9 ibid

10 [2018] CCJ 18 (AJ)

11 Arif Bulkan, ‘The Limits of Constitution (Re)-making in the Commonwealth Caribbean: Towards the Perfect Nation’ (2013) 2:1 Can J Hum Rts 81.

Reflecting on Salomon v Salomon: The Modern-day Approaches to the Separate Legal Personality Doctrine

Maxron Holder* & Michael Rivera**

Abstract – The Salomon principle represents the fons et origo of company law, establishing separate legal personality and limited liability. The original purpose of limited liability was to enable passive investors to invest without committing their personal fortunes to risk. Today, small one-man businesses to large groups and multinational companies have been able to avail themselves of the benefits associated with separate legal personality. This is owed to the reluctance of the Courts to disturb the salutary Salomon principle which holds prominence in company law for almost two centuries. This article reflects upon the insurmountability of the Salomon principle, in light of corporate groups, highlighting the modern-day approaches in preserving separate legal personality.

* This paper was written during my first year of my L E C at Hugh Wooding Law School. ** This paper was written during my third year of my L.L.B at The University of the West Indies Cave Hill Campus.

I. INTRODUCTION

The decision in the celebrated case of Salomon v Salomon, 12 represents the fons et origo of company law, establishing the fundamental principles of separate legal personality and limited liability. The original purpose of limited liability was to enable passive investors to invest without committing their personal fortunes to risk. Since Salomon, small one-man businesses to large groups and multinational companies have been able to avail themselves of the benefits associated with separate legal personality. As the law stands, in the Commonwealth Caribbean a company incorporated is wedded to Salomon.13 This conjecture is discerned from recent cases, which reveal the Salomon principle embraces not only one-man companies but also corporate groups by awarding them separate legal personality from their parent company even where there is overwhelming collaboration amongst them. This predilection of the Courts is owed to their reluctance to disturb the salutary Salomon principle which holds prominence in company law for almost two centuries. Thus, today in the context of the corporate group, a virtually insurmountable obstacle for litigants, is circumventing the Salomon v Salomon principle.

II. SALOMON V SALOMON: FACTS, RULE, AND ITS CONTRIBUTION TO SUBSTANTIVE LAW

The facts of Salomon were as follows: Salomon, a bootmaker, transferred his business of boot making to a limited liability company with a nominal capital of 40,000 shares of £1 each. Mr. Salomon received, 20,000 fully paid shares, as well as 100 secured debentures for £100 each, from the company. His wife, his daughter, and four sons subscribed for one share each as his nominees. Mr. Salomon was appointedmanaging director.Shortly afterthebusinesswas incorporated,it raninto financial difficulty. A liquidator was appointed to gather in the assets of the corporation to pay off the debts and transfer any remaining assets to the shareholders. To avoid unjust exclusion the liquidator on behalf of the unsecured creditors alleged that the company was a sham and essentially was an agent of

12 [1897] AC 22a

13 B Hannigan, ‘Wedded to Salomon: evasion, concealment and confusion on piercing the veil of the one-man company’. (2013) Irish Jurist, 50, 11-39.

Salomon, therefore, Salomon being the principal should be personally liable for its debt.

At first instance, the judge did not countenance the argument that fraud was established on the facts of the case. However, he used agency principles to decide that the company thereof was Salomon’s agent on the premise that the shareholders were mere nominees of Mr. Salomon, and he took the whole of the profits. This approach, however, was rejected by the Court of Appeal. Lindley LJ preferred to hold that the company was the trustee of Salomon who was the beneficiary. Lindley LJ characterized that company as, “a trustee improperly brought into existence by him to enable him to do what the statute prohibits”.14 On this basis, it was determined that the beneficiary, being Salomon, had to indemnify the trustee, the company. On the other hand, Lopes LJ regarded the family members as dummies. He advanced that the Act required ‘seven independent bona fide members, who had a mind and will of their own.’15 Lopes LJpointedout thatthetransactionin question was a device to apply the machinery of the Act [Companies Act 1862] to a state of things that were never contemplated by it. Accordingly, he found that the sale of the business to the company be set aside since a sale by Salomon to himself, in the absence of the incidents of a sale, amounted to a fiction.

In the House of Lords, the decisions at first instance and in the Court of Appeal were disagreed with. The Court was of the view that the lower courts had misconceived the scope and effect of the 1862 Companies Act. Lord MacNaghten adopted a view that a company is at law a different person altogether from the subscribers and although the business is precisely the same as it was before, the company is not in law the agent of the subscribers. He also went on to say that neither are the subscribers being members liable, in any shape or form, except to the extent and in the manner provided by the Act.16 He noted that when the memorandum is duly signed and registered, a body corporate is formed, and it cannot lose that status by issuing the bulk of its shares to one person. Thus, once the company is legally incorporated, it must be treated like any other independent person with rights and liabilities of its own.

14 BRODERIP v. SALOMON. [1893 B. 4793.] - [1895] 2 Ch. 323, page 338

15 ibid. at 341

16 Salomon v Salomon [1897] AC 22a at [51].

Lord Halsbury LC spoke about the effects of when the company is incorporated. The learned jurist in his wisdom said:

It seems to me impossible to dispute that once the company is legally incorporated it must be treated like any other independent person with its rights and liabilities appropriate to itself and that the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are… either the limited company was a legal entity, or it was not. If it was, the business belonged to it not Salomon.17

Salomon can thus be viewed as the pillar of modern company law. It recognized that a company which has complied with the requirements relating to the incorporation of companies contained in the Companies Acts is a legal entity separate and distinct from the individual members of the company.

According to most Commonwealth Caribbean Companies Acts; a company has the capacity, rights, powers, and privileges of an individual.18 A company is not the agent of the shareholders to carry on their business for them, nor is it the trustee for them of their property. The rights of a company have become further expansive and thus it was held in AG v Antigua Times19 that a body corporate and accordingly a company was entitled to the rights guaranteed under the Bill of Rights of the Constitution.

The Courts have however recognized that separate legal personality as a principle should not be held steadfastly and have periodically pierced the corporate veil in some instances. These include instances of fraud, trust, enemy, tax, tort, and statute. In Trustor AB v Smallbone (No. 2),20 for example, Sir Andrew Morritt V.C. stated that 'the Court is entitled to pierce the corporate veil and recognize the receipt of the company as that of the individual in control of it if the company was used as a device or façade to conceal the true facts thereby avoiding or concealing any liability of those individuals'.21 Further, alongside varying degrees of approval,

17 Salomon v Salomon [1897] AC 22a at [31]

18 Anguillas17(1);Antiguas17(1);Barbadoss17(1);Dominicas17(1);Grenadas17(1);Jamaicas4(1);Montserrat s17(1); St. Lucia s17(1); St. Vincent & the Grenadines s17(1); Trinidad & Tobago s21(1).

19 [1975] 3 WLR 232

20 [2001] 3 All ER 987

21Trustor AB v Smallbone (No 2) [2001] 3 All ER 987 at [23].

Lord Sumption in the recent decision of Prest v Petrodel Resources et al, 22 categorized existing cases into two principles: 'evasion' and 'concealment'. While these were obiter, they presented significant contributions to the piercing of the corporate veil. Divined from their Lordships' judgments, the veil can only be pierced through the evasion principle, which applies when a controller has used the company to facilitate evasion of an existing liability. The recent Barbadian Court of Appeal decision of Grenville Ricardo Delpeache v Commissioner of Police also considered the Prest ‘evasion’ and ‘concealment’ principles in the context of criminal cases.23

III. GROUP ENTERPRISES AND THE SINGLE ECONOMIC UNIT PRINCIPLE

It is well established that an incident of separate legal personality of companies and the ability of a company to own property is that a company can be the owner of shares in other companies. This allows for the existence of corporate groups, which are made up of subsidiaries and a holding company. However, in the eyes of company law, a corporate group will be seen as a series of individual companies, all of which are liable for their own debts and respective liabilities. In this regard, the most significant opposition to the separate legal personality doctrine presented itself in the case of DHN Foods Distributors Ltd v Borough of Tower Hamlets.24 In this case Lord Denning MR in the English Court of Appeal attempted to answer the question as to whether the separate legal personality in Salomon applies to group enterprises. His judgment was premised on the single economic unit theory; which posits that all companies in a corporate group should be regarded as a façade and in economic reality, they are one and should be regarded in law as such. The learnt jurist opined:

We all know that in many respects a group of companies are treated together for the purpose of general accounts, balance sheet and profit and loss account. They are treated as one concern. Professor Gower in his book on company law says:'there is evidence of a general tendency

22 [2013] 2 AC 415.

23 Grenville Ricardo Delpeache v Commissioner of Police, Magisterial Criminal Appeal No. 3 of 2018 at [55][63]; [95]-[103]

24 [1976] 3 All ER 462.

to ignore the separate legal entities of various companies within a group, and to look instead at the economic entity of the whole group'. This is especially the case when a parent company owns all the shares of the subsidiaries, so much so that it can control every movement of the subsidiaries.25

Rigorous jurisprudential thought has advanced arguments in support of the single economic theory principle; and these will be in turn considered below.

a. Financial Representation

A corporate group is made up of a holding company and its subsidiaries. A holding company is defined in Commonwealth Caribbean Companies Acts as one which controls its subsidiaries.26 These Acts go on to provide that such control is achieved or expressed by the holding company owning sufficient shares in its subsidiary to determine who are the directors of the subsidiary and how the affairs of the subsidiary is conducted.27 It has been argued that in economic reality a group constitutes one economic unit as the respective businesses of the companies within the group are managed as an integrated whole.28 This position has been seemingly buttressed as consolidated financial representation of companies has also been seen in Commonwealth Caribbean Companies Acts which require a holding company to consolidate in its financial statement accounts of each of its subsidiaries.29 That is, the group is reported as one unit for statutory reporting and for filing of taxes where grouploss reliefcanbe applied.Seemingly iflines canbeblurredin theseinstances, it seriously begged the question why liability cannot be subscribed to a parent company for debt incurred by a subsidiary. Nonetheless, even from the glaring evidence that companies function as a group, noted jurist Burgess has opined that these provisions do not undermine the Salomon principle;30 and further concludes

25 [1976] 3 All ER 462 at 467

26 Anguilla s2(3); Antigua, s540; Barbados s442; Dominica s540; Grenada s540; Guyana s529; Montserrat s540; St. Lucia s540; St. Vincent & the Grenadines s540; Trinidad & Tobago s5(2)

27 Anguilla s2(2); Antigua, s540(a); Barbados s441; Dominica s539; Grenada s539; Guyana s528; Montserrat s539; St. Lucia s539; St. Vincent & the Grenadines s539; Trinidad & Tobago s4.

28 See generally, Hadden, Company Law and Capitalism (London:1977); The Control of Corporate Groups (London:1993); Eisner, ‘Corporate Groups’ in Gillooly (ed), The Law Relating to Corporate Groups (London: 1993) Ch 1.

29 See Antigua s130(1); Barbados s 149; Dominica s151(1); Grenada s151(1); Montserrat s151(1); St. Lucia s151(1); St. Vincent (1); Trinidad s153(1).

30 Andrew Burgess, Commonwealth Caribbean Company Law (London: Routledge 2013) 91.

the harsh reality that each subsidiary bears its own certificate of incorporation allowing it to be a separate person in the eyes of the law.

b. Effective Control

The House of Lords in Woolfson v Strathclyde Regional Council31 disputed the position of DHN Food Distributors Ltd. Lord Keith of Kinkel distinguished the decision on its facts. He stated:

The company that owned the land was the wholly owned subsidiary of the company that carried on business. The latter was in complete control of the situation… Here, on the other hand, the company that carried on the business Campbell, had no sort of control whatever, over the owners of the land, Solfred and Woolfson. Woolfson holds two thirds of the shares in Solfred and Solfred has no interest in Campbell...

In my opinion there is no basis consonant with principle upon which on the facts of this case the corporate veil can be pierced to the effect of holding Woolfson to be the true owner of Campbells business or of the assets of Solfred.32

The case of Woolfson seemed to turn on the facts that Campbell had no control over Solfred and Woolfson to deem them a single entity to which the corporate veil may be pierced. It is easily seen how DHN was distinguished on share ownership but was still followed. If Campbell had effective control over Solfred and Woolfson, both cases may have had the same denouncement. Woolfson also provided that the corporate veil may be pierced where the subsidiary company is a mere façade concealing its true facts

In Amalgamated Investment & Property Co. v Texas Commercial Bank,33 the court took a similar approach in construing the terms of a guarantee. Lord Denning MR who was an unapologetic critic of the Salomon principle was of the view:

We have often lifted the corporate veil so as to show forth the realities of company life. This wholly owned subsidiary was the creature of the parent company. It did exactly what the parent company told it to do. It

was nothing more nor less than a conduit pipe through which payments were made and received. It received no fees. It made no profits. It sustained no losses. Its transactions were all paper transactions - all book entries - recording the sums in and out. It was a puppet which danced to the bidding of the parent company…

The doctrine laid down in Salomon v Salomon & Co Ltd has to be watched very carefully. It has often been supposed to cast a veil over the personality of a limited company through which the courts cannot see. But that is not true. The courts can and often do draw aside the veil. They can, and often do, pull off the mask. They look to see what really lies behind.

c. Modern Commerce

In 1990, the single economic unit principle was once more thrust into the limelight of legal discourse by the Court of Appeal in Adams.34 The re-emergence of this principle can be attributed to the increase in corporate groups in the modern business world, as companies embrace the benefits such as the economies of scale in production or distribution, reduction in transaction costs, access to new markets, elimination of competition and tax considerations. Bearing this in mind, it is sometimes suggested that this adherence to a strict Salomon approach, affording separate legal status to each entity, is inappropriate in the modern business world where much commercial activity is carried on in corporate groups in a way which could not have been envisaged in 1897.35 This position is mischievous and deceptive as it is suggesting that if a company is incorporated and its shares are wholly owned by another company it cannot be considered as separate. The advocates for this statement seem to have lost sight of the rationale in Salomon, which provided that upon incorporation a company becomes a separate person. An attempt of this kind to disturb the principle in Salomon will be opening the floodgates to further disturbances. Thus, in what has been termed by Blumberg a 'historical accident' the separate entity principle applies with equal force to a group of companies.36 Thus, the English Court of Appeal’s decision in Adams v Cape

34 R Kabour, 'Revisiting the Inhibited Doctrine of Piercing the Corporate Veil in English Company Law' (2019)

9 King’s Student L Rev 58.

35 Brenda Hannigan, Company Law, (London: Oxford 2018) 62

36 PI Blumberg, The Multinational Challenge to Corporation Law: The Search for a New Corporate Personality (New York: Oxford 1993) 59.

Industries plc37 confirmed the conclusion in Wolfson v Strathclyde Regional Council that the Court of Appeal’s decision in DHN Food Distributors was an aberration. Slade LJ in his judgment opined:

There is no general principle that all companies in a group of companies are to be regarded as one. On the contrary, the fundamental principle is that each company in a group of companies is a separate legal entity possessed of separate legal rights and liabilities... Our law, for better or worse, recognizes the creation of subsidiary companies, which though in one sense the creatures of their parent companies, will nevertheless under the general law fall to be treated as separate legal entities with all the rights and liabilities which would normally attach to separate legal entities 38

This hereby reaffirms, English Law has not developed any distinct body of rules applicable to groups and that the Salomon principle applied equally to companies within a corporate grouping.

d. Undercapitalization

The cases subsequent to Adams have almost universally rejected the suggestion that a corporate group might be regarded in law as a single unit. Interestingly, undercapitalization was touted as a reason to pierce the corporate veil. Undercapitalization can easily result in a company maintaining a very nominal shareholding but amassing substantial debt through its operations. Would it really be fair to the creditors of an insolvent subsidiary, which was created as an operational vehicle with no significant capital injection, to have limited liability where its parent company would have more significant resources available? The court again, addressed this position in Re Polly Peck International plc,39 where Robert Walker LJ dismissed this argument and said that:

When creditors become involved, as they do in the present case, the separate legal existence of the constituent companies of the group has to be respected… On the issue of agency: But neither agency nor 37 [1990]

nomineeship – nor, still less, sham or something akin to sham – is to be inferred simply because a subsidiary company has a small paid-up capital and has a board of directors all or most of whom are also directors or senior executives of its holding company.40

Once again, the unwillingness of the court to disregard the Salomon principle was demonstrated. Re Polly Peck showed, the fact that undercapitalization was not of itself conclusive to support the single economic unit and treating the parent and subsidiary relationship as one. It is thereby submitted, to disregard the distinction between parent and subsidiary and then to say: “since the company cannot pay, the parent company should be made to pay instead; is radically at odds with the whole concept of corporate personality and limited liability and the decision of the House of Lords in Salomon.”41

IV. CARIBBEAN ADAMANCE: CLICO and Ansa McAL

The issue of accountability with respect to separate legal personality in corporate groups has coaxed the Commonwealth Caribbean jurisprudence. In Barbados, as a result of the CLICO debacle, the issue was whether CLICO International Life a subsidiary of CLICO Barbados Holdings should be held to pay the debts of its parent company. Before the Barbados’ Court of Appeal in CLICO International Life Insurance Ltd v Parris et al, 42 Gibson CJ was adamant about the application of Salomon and the development of the law thereafter.

He opined:

The assertion that ‘there is no issue with a subsidiary being asked to pay the debts of a parent company’ finds no place in our law without the agreement of the subsidiary as a separate legal entity.43

40 [1996] 1 BCLC 428 at [440] per Walker LJ.

41 Ord v Belhaven Pubs Ltd [1998] 2 BCLC 447 at [457] per Hobhouse LJ

42 [2016] 88 WIR 154

43 [2016] 88 WIR 154 at [157] per Gibson CJ.

Its application in the Caribbean context was seen again in Ansa McAL v Banks Holdings,44 that case Burgess JA opined:

In law, AMCDV was a separate legal personality…the fact that AMCDV was the wholly owned subsidiary of Ansa did not in any way subsume AMCDV within Ansa thereby transforming Ansa.45

Analyzing these cases, the famous words of Lord Templeman in Re Southard & Co Ltd, 46 resonate. He said that:

A parent company may spawn a number of subsidiary companies, all controlled directly or indirectly by the shareholders of the parent company. If one of the subsidiary companies, to change the metaphor, turns out to be the runt of the litter and declines into insolvency to the dismay of its creditors, the parent company and the other subsidiary companies may prosper to the joy of the shareholders without any liability for the debts of the insolvent subsidiary.47

Admittedly, the misuse of the above-mentioned entities of the separate legal personality doctrine to further the corporate agenda was just short of criminal. However,dueto lapsed legislativesanctions, malfeasance andmismanagementwas largely unpunished.

V. MODERN APPROACHES IN CIRCUMVENTING SALOMON IN ITS APPLICATION TO CORPORATE GROUPS

Inthecontext ofcorporategroups, thedoctrineoflimitedliability andseparatelegal personality interpose separate legal entities between each company of a corporate group, potentially causing a lack of legal responsibility and injustice. Parent companies are able to camouflage their legal obligations and the jurisdiction where harm has occurred to a victim; hence making litigation against the wrongdoer more difficult. Should the doctrine of limited liability not be circumvented, victims are limited to compensation not exceeding the actual capital assets of the damaging company.Toaddressloopholesinthelawandhelpadaptthemechanicsofcompany

44 [2016] 89 WIR 133.

45 [2016] 89 WIR 133 [167] per Burgess JA

46 [1979] 3 All ER 556

47 [1979] 3 All ER 556 at [565] per Lord Templeman.

law to be better suited for the rising modern development of corporate groups, certain situations have been apportioned as circumstances appropriate for not piercing the corporate veil but circumventing the Salomon principle.

The case of Prest v Petrodel Resources et al, 48 represents an alternative to piercing the corporate veil via the law of trust. On the facts, the United Kingdom Supreme Court found that the companies held properties on trust for the husband, making him beneficially entitled. Prest illustrates a constructive trust as an equitable remedy to benefit a party deprived of rights due to unjust interference. Although such trust analysis in company law is indeed highly fact specific, it is fruitfully exclusive to the common law jurisdiction. This sub-avenue is advantageous as it does not contradict Salomon and creates certainty in the law by elucidating applicable scenarios.

Many recent developments in circumventing Salomon have incorporated claims in tort law and it is undeniably true that tortious liability is a fault line created through limited liability. As seen in Chandler v Cape plc,49 an asbestos-related case, in applying tort law principles, the parent company was found to have owed a direct dutyofcareto anemployeeofoneofitssubsidiarycompanies.Throughsatisfaction of the threefold test of foreseeability, proximity, and fairness, enunciated in Caparo v Dickman, 50 thevictim was ableto seek redress without piercing the corporateveil. Nonetheless, the courts stress that the duty of care is not automatic and is only relevant in specific circumstances, as 'it is not possible to say in all cases what is or is not a normal incident of the relationship between a parent and subsidiary'. The parent company and subsidiary company (i) had similar businesses; (ii) ought to have known the subsidiary's work environment was unsafe; and (iii) ought to have foreseen that the subsidiary would rely on them for employee protection. Also, as confirmed in Thompson v The Renwick Group plc, 51 Tomlinson LJ expressed that a duty of care will be imposed only where it is fair, just, and reasonable to impose a duty of a given scope upon the one party for the benefit of another', and that is because a group of companies operating in a single business cannot equate to disrespect for the legal personality of subsidiary companies.

48 [2013] 2 AC 415.

49 [2012] 3 All ER 640

50 [1990] 2 A.C. 605

51 [2014] 2 BCLC 97.

Despite Prest the English Courts have continued to lift the corporate veil without expressly doing so. They have increasingly focused on “practical realities” and the specific facts when determining who is to be treated as the true owner of the underlying assets. In JCA BTA Bank v Ablyazov52, Mr. Ablyazov arranged his affairs through a myriad of companies in various jurisdictions. One was a BVI company that owned a valuable flat in London. Mr. Ablyazov was not the shareholder of record. It was held that given the evidence which suggested that officers of the company acted on his instructions, Mr. Ablyazov was the beneficial owner of the shares in the company. In Chevron v Yaiguage 53, it was held that the courts will only pierce the corporate veil in three circumstances: (1) when the court is construing a statute, contract or other document; (2) when the court is satisfied that a company is a “mere facade” concealing the true facts; and (3) when it can be establishedthatthecompanyisanauthorizedagent ofitscontrollersoritsmembers, corporate or human. The meaning of “mere façade” the court highlighted: (1) there is complete control of the subsidiary, such that the subsidiary is the “mere puppet” of the parent corporation; and (2) the subsidiary was incorporated for a fraudulent orimproper purpose or usedby the parent as a shell for improper activity.However, Nordheimer J expressly disagreed with that limitation on the court’s power. He said that the categories are not closed – thus the courts can lift the veil to do justice.

Prest will probably reduce the circumstances in which the Courts will disregard separate corporate personality and “pierce the corporate veil”. The decision herald areturntotheprinciples establishedmorethanacenturyagoin Salomon v Salomon. However, in appropriate cases the Court may achieve the same result by concluding that thecompanywas merely theagent ofthecontrolling shareholderorthat it holds its assets on trust for him or her, or by concluding that the shareholder has tried to abuse the rule, or even just saying that these cases are “fact specific”.

VI. CRITICISM OF SALOMON

While creditors and revenue authorities have sometimes welcomed these decisions, there have been many critics throughout the Commonwealth, both judicial and academic. In the South African Supreme Court in Cape Pacific Ltd v Lubner

Controlling Investments54 it was said that “the law is far from settled with regard to the circumstances in which it would be permissible to pierce the corporate veil”. In New South Wales Court of Appeal in Briggs v James Hardie & Co Pty Ltd55 it was said that “there is no common, unifying principle, which underlies the occasional decision of courts to pierce the corporate veil. There is no principled approach to be derived from the authorities”. In the Supreme Court of Canada in Constitution Insurance Co of Canada v Kosmopoulos56 it was said that “the law on when a court may pierce the corporate veil follows no consistent principle. The problem according to Burgess, is that the courts have not done this in any systematic way, and it is difficult to find any unifying principle that explains their approach to piercing the veil.57 To lift the corporate veil is not a principle. It describes the process but provides no guidance as to when it can be used. It is incoherent and unprincipled.

VII. NEW DIRECTIONS IN NEW ZEALAND

The New Zealand legislature has decided to break its wed to Salomon by way of the 1992 Corporate Law Reform Act. The Act provided that a holding company will be liable for the insolvent trading of its subsidiary where there are reasonable grounds for suspecting that the subsidiary is insolvent or would become insolvent. It goes on to provide, liability will be achieved where the holding company or one of its directors is or are aware at that time that there are grounds for so suspecting or having regard to the nature and extent of the holding company’s control over the affairs of the subsidiary and to any other relevant circumstances it is reasonable to expect that a holding company would be so aware of that one or more of the holding company’s directors would be so aware.58 The Act represents a landmark in company law, mostly for creditors, who are offered protection when a subsidiary declines into insolvency. With the growing reluctance of the courts to treat group enterprises as one unit, this piece of legislation shows that reform is possible to avoid abuses of the corporate group structure and separate legal personality.

54 [1995] 2 All SA at 28

55 (1989) 16 NSWLR 549, p567.

56 [1987] 1 S.C.R. 2 at 12

57 Andrew Burgess, Commonwealth Caribbean Company Law (Routledge 2013) 93

58 New Zealand Corporate Law Reform Act 1992 No. 210 Of 1992 s588V.

VIII. CONCLUSION

The Salomon doctrine continues to thrive and is largely unchallenged. It remains good law and was undoubtedly seminal to the creation of modern commerce. At the same time, the law must be cognizant and must strive to balance the important doctrine of limited liability against the possibility of abuse through engagement with the underlying rationales for insulating a holding company from liability. It is submitted that traditional company law remains uncompassionate to the claim of the creditor of a subsidiary against a holding company and could result in injustice. While some solace may be found in the common law, the conservative nature of its development will probably retard the advancement of legal reform. This conservative attitude of the courts to favourably consider the economic reality of corporate groups is aptly illustrated by the dictum of Robert Goff LJ in Bank of Tokyo Ltd v Karoon & another, 59 where he said: we are concerned not with economics but with law. The distinction between the two is, in law, fundamental and cannot here be bridged.”60

Can legislation be described as Inefficient with regards to the Illegal Trading and Possession of Endangered Animals in the Caribbean region?

Safiyyah Mohammed*

I. INTRODUCTION

“What is a fish without a river? A bird without a tree to nest in? What is an endangered species law without any enforcement to ensure that they are protected? It is nothing. ”1 American author and politician Jay Inslee’s suggestion is a touching quote which carries the central thoughts of this paper. Many animals around the world are on the brink of extinction, occasionally due to forces way beyond our reach or control, and other times, at the very hands of human action. One of the main causes for animal endangerment and extinction is illegal trading. Illegal endangered animal trading is the sale or exchange of wild, or non-domestic animals which are protected by international or regional trade law 2 It usually includes live or dead animals and a range of products sought after by humans such as animal skins, medicines, luxury food, horns, fashion items, and live animals can also be illegally kept as pets. In the Caribbean, endangered animals like monkeys, agoutis, lappe, tattoo, iguanas, sloths and a variety of birds are illegally traded regionally, creating a multi-million-dollar business for traders. Though the Caribbean has implemented a plethora of legislation which attempts to combat this heinous crime, one may assume that due to the continuous rise in illegal possession

1 Indonesian Center for Environmental Law, ‘InfoICEL’ (Facebook, 6 November 2018)

<https://www.facebook.com/icel.or.id/photos/a.747868121957053/2382860915124424/?type=3> accessed 11 April 2019

2 Traffic, ‘Illegal Wildlife Trade: Enhancing Responses to Wildlife Crime and Illegal trade’ (Wildlife Trade Specialist, 2016) <https://www.traffic.org/about-us/illegal-wildlife-trade/> accessed 11 April, 2019.

* This paper was written during my first year of my L.L.B at The University of the West Indies Cave Hill Campus.

and trading, the laws can be referred to as inefficient, perhaps for many reasons. Thus, this paper seeks to examine the reasons for the inefficiency in various types of laws, as well as recommend legislative changes to tackle the illegal trade and possession in endangered animals.

II. METHODOLOGY AND FINDINGS

Firstly, the primary source which was utilized in the collecting of data was in the form of a semi-structured interview (see appendix) with Miss Alana Lancaster, an International and Caribbean Environmental Law lecturer at the University of the West Indies, Cave Hill campus. By identifying and conducting an interview with a teacher who is predominantly educated with environmental and animal rights law, it aided in ascertaining relevant findings, as well as adding validity and credibility to the research. The interview highlighted the various types of legislation implemented throughout different Caribbean countries, the demand for endangered animals, and whether the laws placed are efficient or not and why.

Firstly,Ms. Lancaster has provided anassortment oflegislation,someof whichwill be thoroughly examined. She discussed both international and regional treaties, such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), and the Caribbean Protocol concerning the Specially Protected Areas and Wildlife, also known as The SPAW Protocol. These treaties both encourage and apply necessary measures to protect, preserve and manage endangered species in a sustainable way. Each Caribbean country would then implement legislation in support of the treaties, for example Guyana, Trinidad and Tobago, Antigua and Belize. She focused mainly on Belize and Antigua as she has stated that their legislations are “more updated” than most Caribbean acts.

Ms. Lancaster has alluded to the fact that the legislations implemented are in abundance and are in fact “fair and just.” She commented that the laws are refined, as most Caribbean countries even specify on the types of animals and the severity of punishment for individuals who commits an offence against the act. For instance, Trinidad and Tobago carries an Ecologically Sensitive Species Rules, which aims at protecting species such as the ocelot and many other endangered animals. Jamaica also has Endangered Species Protection Acts, as well as Belize with their Fisheries Act. It is understandableto say that different jurisdictions protect different

types of animals. Ms. Lancaster voiced that many of the endangered animals of the Caribbean are marine based, perhaps due to the excessive tourism industry that is placed upon our crystal-clear shores. However, upon asking her whether it was necessary to acknowledge specific animals, she stated that it is imperative to categorize, since it has proven to be simpler to protect or manage land-based animals from marine ones. Consequently, it was first established that Ms. Lancaster believed that the legislations placed are in fact efficient.

One of the questions asked was, where in the Caribbean, did she believe that the law is most enforced. Ms. Lancaster has verified that despite her opinion of fair, reasonable and just legislation, she gathered that Caribbean countries fall in the category of noncompliance of enforcement. Although it is a “mere speculation”, as she would refer to it, there are many circumstances of why it is not adequately enforced, which would be delved into as the paper progresses. According to the Environmental Law lecturer, “the legislative basis is there. The area it falls down is the enforcement.” When questioned about why she speculated that the laws are not entirely enforced, she provided many factors which contributed to this, her main reasoningbeingpublicawareness.Thereisnotenoughlegalawarenessintheregion with many citizens, even possibly law enforcers, who are sometimes uninformed of certain existing legislation. For example, Ms. Lancaster has referred to the sea eggs or more prominently known, sea urchins. She expressed that there has been an ongoing trade for sea eggs particularly in Barbados, due to the high demand for it. According to the CERMES Technical Report No 79, in an article entitled, “Sea Eggs Again: An Account and Evaluation of The 2015 Barbados Sea Egg Fishing Season,” 3 Under the Fisheries Regulation Act of 1904, fishing for sea eggs were mandated to be closed for the season extending from 1 April to 31 August unless otherwise published in the Official Gazette. However, the closure was never enforced or effected, and as a result, poaching of the resource frequently continued. The fishing of sea eggs, according to Ms. Lancaster, has since been prohibited, but the trade for it woefully continues. She further added that, “if you go to beaches in St. Johns, people walk up and offer you [sea eggs]. It is impossible for fishery

3 M. Pena, P. McConney, R. Forde, S. Sealy & J. Wood, ‘Sea Eggs Again: An Account and Evaluation of the 2015 Barbados Sea Egg Fishing Season,’ (CERMES Technical Report No 79, 1-31 October 2015)

<www.cavehill.uwi.edu/cermes/getdoc/c80a2723-fe8e-40cd-a240 60d51fc6a0ef/pena_et_al_2016_barbados_sea_eggs_season_2015_ctr_.aspx> accessed 13 April 2019.

officersto be everywhere to enforcethelaw,but from thepublic’sperspective,once you know there is a prohibition, you will refuse to purchase it.” A newsletter editor Rob Jones, in his CITES article4, stated that wildlife trade is estimated to be worth billions of dollars internationally, involving millions of animals each year. For example, sea turtles and freshwater tortoises that were imported into Hong Kong in 1998 were found to be approximately $40 million USD. Additionally, he stated that “wholesale value for live reef fish imported into Hong Kong for food was estimated to exceed $500 million USD per year.” Essentially, the reason for the illegal poaching and trading is the mere fact that there is a growing demand for these animals. However, one can presume that once people are well educated on the legislations surrounding endangered species, there would no longer be a demand, thus no requirements for a supply.

Other factors, which play a large role in the non-enforcement, is, according to Ms. Lancaster, a “lack of will, politically and otherwise,” Ms. Lancaster has expressed that rangers cannot patrol areas of land and sea, as they sometimes do not have the necessary equipment which should have been provided by the government. In addition, they may not even have enough persons who are interested to aid in enforcing the law. Truly, however, finance is and will always continue to be an issue. The latter is already such a deeply concerning matter within enforcing certain types of laws for human beings, one can only imagine the lack of interest by the government in putting financial matters into place when dealing with creatures of land and sea.

III. RELEVANT LEGISLATION

The Convention on International Trade in Endangered Species of Wild Fauna and Flora- (CITES)5 – A Treaty for international governments which was formed in the 1960’s. It is very prominent and is one of the most celebrated agreements in the Environmental Law society. Essentially, it aims to ensure that international trade in specimens of wild animals and plants does not threaten their survival. In an attempt to regulate trade amongst these animals, the treaty provides principles which

4 Rob Jones, ‘Convention on International Trade in Endangered Species of Wild Flora and Fauna, (CITES) and Trade in Wildlife in East Asia Region,’ (6.2 HKELA Newsletter Special Edition, 2001)

5 Convention on International Trade in Endangered Species of Wild Fauna and Flora, (Certified true copy: For the Federal Department of Foreign Affairs) 1983.

includes necessary permits for trading,6 as well as the specific types of animals which are permissible to trade, and which are not,7 as the export of certain endangered species may or may not lead to their detriment.

Trinidad and Tobago’s Environmental Sensitive Species Rules8 – These are law abiding regulations provided by section 41(1) of the Environmental Management Act, where they prescribed a portion of any species of living plant or animal as an “environmentally sensitivespecies”,requiring specialprotectionin orderto achieve the objective of this Act. Within section 3(2a) and (2b) of the Environmental Sensitive Species Rules (ESS), it is declared that activities such as collecting, cutting, hunting, possession of, or trade of any environmentally sensitive species are prohibited.

Trinidad and Tobago’s Fisheries Conservation of Marine Turtles Regulations9 – In this act, section 5(1) declares that if a person fishing who fishes in the ocean, using acommercial shrimp trawleraccidentallycaptures livemarineturtlesduringfishing operations, that person shall immediately return such turtles to the sea. Section 5(2) states that where “a person accidentally captures live marine turtles that appear to be in a comatose state, the person shall resuscitate the turtles or cause them to be resuscitated in accordance with procedures authorised by the Minister.”

Accordingly, section (9) carries the penalty of a fine of two thousand dollars and imprisonment for six months, when a person commits acts against any of these Regulations

Barbados Wild Birds Act10 – Section 3 states that any person who knowingly kills, injures, or attempts to kill or injure a wild bird shall be liable to a penalty of up to $100 for each wild bird before a magistrate. Following this, section 4 carries the penalty of $100 for each dead body or part of a dead body, to any person who has in his possession the dead body or any part of the dead body of any wild bird, recently killed. Section 5(1) states that the skin and feathers of any wild bird are hereby prohibited to be exported from Barbados, and where any skin or feathers of

6 CITES Treaty, Article III (2)

7 CITES Treaty Appendix I

8 Trinidad and Tobago’s Environmental Sensitive Species Rules, (Made by the Minister under section 26 (e) and 41 of the Environmental Management Act, 2000) 2001

9 Fisheries (Conservation of Marine Turtles) Regulations, (Ministry of Legal Affairs Chap 67:51) updated, 2009

10 Barbados Wild Birds Protection Act (Government Printing Department, Chapter 398) 1985.

any wild bird are exported, the person who exports them shall be liable to a penalty of $250, as is provided by, section 4.

Endangered Species Protection Act of Jamaica11 – Section 40(a) of the regulation states that any person who illegally trades any endangered animal without a permit or certificate under the act, shall be liable to a fine not exceeding two million, and a term of imprisonment not exceeding two years. Section 41(2a) states that a person who is convicted of an offence of enclosing any endangered species in the mail, package packet, etc. can be liable for imprisonment not exceeding one year.

Belize Fisheries Act12 – The act provides penalties and rules with regards to the marine biodiversity of Belize waters. Section 8 of the act states that no person shall be engaged or employed in any scientific or research involving the taking, killing or capturing of any fish, or any interference or disturbances of fish, unless there is licence granted under the regulations made under this Act. Subsequently, section 9(2) holds that no person shall export, attempt to export any fish unless he is the holder of a valid fish exporter’s licence issued under the regulations made under this Act. Any person who is in breach of section 9(2) therefore commits an offence and is liable on conviction to a fine which shall not be less than one hundred dollars but more than five hundred dollars, or alternatively, imprisonment for a term not exceeding six months.

Antigua and Barbuda’s Wild Birds Protection Act13 – Section 5 of the act states that any person who goes against the law and exposes or proceeds to participate in the sale or exchange of any wild bird protected under the act, shall, according to section 7, be liable to a penalty not exceeding $250.

IV. CASES WHERE LEGISLATION IS NOT ENFORCED

Evidently, in addition to gathering information through a primary source, several articles from the Trinidad and Tobago’s Guardian newspaper were applied as a secondary source, in order to acquire a better perception of the inefficiency of legislation surrounding endangered animals. One example includes a recent case in February of 2019, that has made its way to the Guardian newspaper. Animal

11 The Endangered Species (Protection, Conservation and Regulation of Trade) Act of Jamaica 2004

12 Belize Fisheries Act (Law Revision Commissioner, Chapter 210) Revised Edition 2000

13 The Wild Birds Protection Act (Laws of Antigua and Barbuda, Chapter 472) 1913.

smugglers, who alluded the police force, abandoned a three-toed sloth native to South America, where it subsequently died after the smugglers flung it over a cliff in Morne Diablo Trinidad. Subsequently, they found 18 parrots, a toucan, a yellowfoot tortoise, five baby Capuchin monkeys and a baby wild hog, all in cages, being offloaded from a boat at Morne Diablo beach (see figure 1 in appendix). Editor Sascha Wilson stated that it was believed that the animals were smuggled from Venezuela. Likewise, in another Guardian article by Michael Jawahir, he expressed that “Piracy is actually severely affecting the illegal trade of wildlife between Trinidad and Tobago and Venezuela.” Amid an exclusive interview with Guardian Media, a trader, who requested to be anonymous, said that the illegal trading has rapidly decreased the number of tropical birds in the Caribbean itself, such as bullfinches, picoplats, parrotsandmacaws. Hestatedthatanimals suchas monkeys, agouti, lappe, tattoo, deer, wild hog, iguanas and different types of animal skin and parts are brought in and sold for a whopping $25,000 each. This goes to show that despite the collection of laws placed throughout the region, the crimes do not seem to diminish.

According to CITES, the illegal possession and trading business is seen to be a multi-million-dollar empire. Many cases in the newspaper validates that even law enforcement agencies are unaware of the many legislations that attempt to safeguard these animals. One particularly unfortunate case was in October of 2018, where a judge gave two poachers the wrong fine for illegally hunting and killing 5 Scarlet Ibises in Trinidad (see figure 2 in appendix). Initially, Jaing Hui Feng and Alion Ramkhawan, appeared before Magistrate Sanara Toon in the Third Court and pleaded guilty to the offence. Both were fined $800 TTD and avoided prison time. It was later found that the judge was unaware, that having been found with a dead Scarlet Ibis, carrying a new fine of $100,000 had been gazetted. The judge stated that the new legislation took “unnecessarily long” from the time the fines increased to when it was gazetted. Consequently, a common complaint by enforcement agencies now is the delays in the justice system.

Upon speaking to Mr. Rajendra Ramlogan, an Environmental Law lecturer at the University of the West Indies St. Augustine campus, he has affirmed that due to “manpower constraints and low penalties, there are a great deal of distrust toward enforcement of the many environmental laws that are being breached.” For

instance,in2006,aCedrosfishermanwascharged withbringing,twohundredbirds infected with the bird flu virus into Trinidad and Tobago. The matter against the fisherman was dismissed but subsequently appealed by the State. A retrial was ordered, and it was only on the 7th of December 2017 that the fisherman was convicted. Alas, it took over a decade for this matter to be concluded. Evidently, one can see that the laws are not being enforced enough, and as a result, the crime continues. It is quite clear that government has strived continuously to update legislations for endangered animals, as the new world prides itself on attempting to be environmentally friendly. On a practical level, one can see that it is not enoughto implement sufficient laws; but it must beseverely enforcedin order for vast change to occur.

V. WHAT CAN BE DONE?

The Honourable Justice Wit once stated that “there is more law between heaven and earth than we have dreamt of in our own doctrinal philosophy.”14 Perhaps this maybeconsideredwhenobservingthemanylegislationsencompassingendangered animals. As recognized above, there are various types of laws, some of which are described to be “fair, just and reasonable.” Upon commencement of this research paper, the initial perception was that the laws themselves need to be changed; that fines were not enough, and that prison time were rarely implemented and executed. However, upon conducting deeper research into the environmental law-based issue and conversing with learned professors at the University of the West Indies campuses, it can be deduced that it is not legislation itself that lacks substance, but it is the enforcement of these legislations that lacks. There is no doubt that there certainly are cases which have proved to bring justice to endangered animals, however. An example of such is a 2018 report in the Trinidad and Tobago’s Guardian Newspaper (see Figure 3 in appendix). The article was headlined, “Two poachers held and charged by game wardens for having five carcasses of one of T&T’s protected national birds, the Scarlet Ibis.” In the news article, it was stated that if charged, the two men will likely have to pay 5 million dollars each, followed by two years’ imprisonment. Accordingly, The Scarlet Ibis is protected under the Environmentally Sensitive Species Rules 15 Possession of any endangered animal 14

under this act can have a person fined up to $100,000 for each bird, with the possibility of up to two years’ imprisonment.

Due to the ever-growing empire of illegal wildlife trade throughout the Caribbean, manywouldpresumeto questiontheefficiencyoflegislationencirclingendangered animals. While there are certain cases where enforcement of the law is dually established, as seen above, there are multiple cases that proves otherwise. Research has proved to show that crimes continue not because of inefficient legislation, but because people are simply unaware and unwilling to aid the animals of the environment. To combat this issue, it is feasible to enforce mandatory teachings of environmental law in early learnings, such as in the primary and secondary level, as Ms. Lancaster has suggested. By doing this, it is likely that more of the population would be well educated with the legislations surrounding endangered animals and the detriment it poses while we ignore the crimes being committed. Additionally, early teachings can encourage more people to engage and support in preventative actions through the internet, and in the future or long term, their own finances and through companies as well.

Furthermore, if more people are educated on the issue at hand, change can occur quicker than expected, as a vast majority of people can even encourage government to develop or deliver tools that can aid in combating the crimes. Enforcement officers, and judges are sometimes not aware of the legislations or amendments implemented in these acts. Most of the time, it is because of the slow progress of government. As a result, one can presume that with a bit more willingness of the government to combat this crime, change can occur relatively faster as they have a greater power than a regular student or citizen. What the government fails to realise in the Caribbean, is that tourism is one of our driving sectors and many foreign persons visit our shores, because of our multi-cultural, biodiversity of flora and fauna. If not, enough attention is placed on battling the illegal trade industry, then it will eventually consume our entire eco-system. Every species has a unique and significant role to play in Caribbean environment, for example, sea turtles, leatherback turtles, reef fishes and monkeys. What would happen when they are hunted to extinction for sale of their skin or other parts? It is an extremely serious matter; definitely more serious than any other issue, as it can be seen as a silent killer,inthesensethat,becausewearenot awareoftheundergroundmarket, slowly

butsurely,eachendangeredanimalwillcontinuetodisappearwithoutusevenbeing aware of it. According to Jeffrey Moussaieff Masson, “Animals are, like us, endangered species on an endangered planet, and we are the ones who are endangering them, it and ourselves. They are innocent sufferers in a hell of our making.”16

VI. CONCLUSION

To conclude, the illegal trade on endangered wildlife is a multi-billion-dollar industry, which threatens the biodiversity of the environment worldwide. In a smaller scope, the Caribbean region attempts its best to combat this heinous crime, by implementing legislations for both land and marine endangered animals. This research paper delved into laws of Trinidad and Tobago, Jamaica, Belize, Barbados and Antigua, where it was deduced that legislation, being in its abundance, is not simply inefficient or unsuitable. Laws punish persons who commit the offence against any of the acts, to fines of sometimes a half a million dollars, with prison time included. Evidently, it was found that it is not within the laws themselves, but the enforcement of these laws that plays a detrimental downfall for these endangered animals. Upon conducting research, it was found that ignorance of the law, and a lack of will, both socially and politically are the main reasons why the laws are not enforced. Fittingly, according to American primatologist and conservationist, Dian Fossey she stated that, “conservation of any endangered species must begin with stringent efforts to protect its natural habitat by enforcing rigid legislation against human encroachment.”17 Following this, and the results of the research paper, one may presume that by educating the public, or youths at a primaryand secondary level about the environmentallaws of theCaribbean, as well as a more strapping attempt from the government to aid in enforcing the laws more effectively, this can help to decrease the level of illegal trading in endangered wildlife. Even simple acts, such as, employing more game wardens or rangers, providing more jobs for persons who are actually willing to fight this crime; all of these small acts can turn into something quite large and incredible, and help the

17 Shikha Goyal, “Endangered Species Day 2020: Third Friday in May| Significance” (JagranJosh.com, 15 May 2020) < https://www.jagranjosh.com/general-knowledge/national-endangered-species-day-15579908951> accessed 31 March 2021.

16 Jeffrey Moussaieff Masson and Susan McCarthy, When Elephants Weep: The Emotional Lives of Animals, Vintage, 1996.

animal race. Professor Rajendra Ramlogan of the University of the West Indies St. Augustine Campus has stated that law is the prime difference between man and beast. What happens when we do not follow or enforce our own laws and legislations?

VII. APPENDICES

i. Interview Questions for Ms. Alana Lancaster:

1. Can you give me a variety of legislation or common legislation that is placed throughout the region?

2. Are there any for specific animals?

3. Do you agree or disagree that the laws are inefficient?

4. Are you currently aware of any underground trades that is currently happening in any Caribbean country?

5. Where would you say in the Caribbean, are these laws more enforced?

ii. Ramano Macfarlane, a wildlife biologist, examines a three-toed sloth native to South America, which died after the smugglers flung it over a cliff in Morne Diablo Trinidad

https://www.guardian.co.tt/news/animal-smugglers-elude-cops6.2.784321.252f65c70c

Figure 1

iii. Wrong fine given to Scarlet Ibis poachers. http://www.guardian.co.tt/news/wrong-fine-given-to-scarlet-ibis-poachers6.2.692725.5574c7b76c

Figure 2.

iv. Poachers held with 5 Scarlet Ibis carcasses. https://www.guardian.co.tt/news/poachers-held-with-5-scarlet-ibiscarcasses-6.2.722985.e4228f4a68

Figure 3.

Addressing the Scourge of Indiscriminate Burning in Barbados: Providing Ambient Air Quality through Legislative Reform

Dr. Ian Marshall*

I. INTRODUCTION

The issue of indiscriminate burning, either for recreational purposes (bonfires) or as a method of domestic solid waste management (backyard burning), is one which has challenged traditional and modern societies. In terms of the former, bonfires were, and continue to be, associated with activities like Guy Fawkes Day,1 firework displays particularly in the United Kingdom; while backyard burning of refuse is a common practice in the Caribbean. In both instances, the practice which has survived to the present day, severely undermines ambient air quality andputs at risk populations in general, but specifically those who suffer from smoke induced asthma and other respiratory conditions. This point was reiterated by retired paediatrician and allergist, Dr Vincent Hutchinson, who highlighted negatives of smoke, which he said could trigger sudden acute attacks and long-term effects, such as a build-up of inflammation in the bronchial tube, which could cause chronic problems. 2

Consequently, there have been numerous calls by medical practitioners and concerned citizens alike, forstifferpenaltiesand legal reform to address the scourge of backyard burning. For example, President of the Asthma Association of Barbados, Rosita Pollard suggested, that Barbadians were not taking the effects of the practice of burning seriously, but if stiffer penalties were introduced, people

* This paper was written during my second year of my L.L.B at The University of the West Indies Cave Hill Campus.

1 James Shape Remember Remember the Fifth of November: Guy Fawkes and the Gunpowder Plot (Profile Books 2006).

2 Nation News Editorial ‘Call for Stiffer burning penalties’ 03 May 2018.

would think twice before starting fires.3 President of Citizens Against Burning, Wayne “Poonka” Willock concurred with the sentiments expressed by Pollard and expressed hope that the Government elected in 2018 would take the matter into consideration when drafting any new legislation.4 Chief Fire Officer, Errol Maynard in an interview with Barbados Today, indicated that he would be proposing to the Minister of Home Affairs, Edmund Hinkson, that legislation be passed to require permits for persons to burn garbage around their homes.5

But what exactly is ambient air quality and why should it be an area of concern?

First the “what”, ambient air is the air in its natural state when it is not contaminated by airborne pollutants. It contains 78% nitrogen, 21% oxygen and 1% of a combination of carbon, helium, methane, argon, and hydrogen.6 The reality; however, is that ambient air quality, as per the foregoing description does not exist. On the contrary, ambient air is constantly being compromised by pollutants of all kinds as the world struggles to make the paradigmatic shift from fossil fuels to renewables. This brings into focus the question of why ambient air quality or lack thereof, should be addressed with urgency. The American Lung Association has indicated that particulate pollution triggers asthma attacks, heart attacks and strokes and can kill. They further asserted that studies of children (in the context of California)foundthatchildrenwhobreathethesmokyairduringwildfireshadmore coughing, wheezing, bronchitis, and were more likely to have to go to the doctor or the hospital for respiratory causes especially from asthma.7

Two key observations make the foregoing statements by the Lung Association even more alarming; the first, is that according to the Global Asthma Report 2014,8 asthma may affect as many as 334 million people. The second, is that Barbados has one of the highest rates for asthma in the world surpassing the United States 9 In other words, a country with just over 280, 000 people have higher rates for asthma than the United States with a population of 327. 16 million as of 2018.10 Evidence

3 Sheria Brathwaite Nation News ‘Call falling on deaf ears’ 11 June 2018

4 Nation News Editorial ‘Call for Stiffer burning penalties’ 03 May 2018

5 Barbados Today ‘Tough fines needed for indiscriminate burning 28 December 2018

6 www.safeopedia.com/definition/2385

7 American Lung Association ‘State of the Air 2018’

8 The Global Asthma Report 2014.

9 Colin Depradine and E Lovell: ‘The Incidence of Asthmatic Attacks in Barbados’ (2007) 56(5) West Indian Medical Journal 427

10 US Census Bureau 2018.

to underscore the gravity of the situation as it relates to asthma, comes from an Editorial in the Barbados Advocate which indicated that there were as many as 12 to 14 deaths per year due to asthma and as many as 10,000 children were visiting the Asthmatic Bay of the Queen Elizabeth Hospital annually.11

Having given an overview of the scope of the problem the next logical step would be to look at the question of legislative intervention as indicated by the concerned citizenry. What does the law have to say about indiscriminate burning locally and internationally? In Barbados, the Health Services Act 1997,12 outside of s 4 (1c) and s10 (1f), does not contain any express prohibition of the practice. At common law, a person or class of persons is free to bring an action on the ground that the bonfire is a private or public nuisance; however, beyond this remedy there is no statutory provision that deals in a systematic manner with the issue which, one can argue, should be regarded as public health hazard. Internationally, the legal treatment of the matter of indiscriminate burning is varied. For example, in the United Kingdom apart from the Highway Act,13 which speaks to fires lit near highways and the potential damage to other road users, there is no statutory legislation that expressly prohibits indiscriminate burning. However, in Ireland, Europe, The United States, British Columbia, and Canada, there is legislation that specifically addresses the issue of indiscriminate burning.

The purpose of this paper is, therefore, to explore legislative best practices with referenceto theissueofindiscriminateburning and to provideproposals for reform. To this end, this paper will be divided into three sections, section 1 will examine the medical evidence surrounding the relationships among indiscriminate burning, ambient air quality/pollution, and respiratory ailments. Section 2 will examine the current state of the law relating to indiscriminate burning and discuss how the issue of indiscriminate burning was and is being addressed in other jurisdictions. The author will then conclude with a proposed legislative framework for addressing the issue.

11 Barbados Advocate Editorial 2017

12 Health Services Act 1997, s 4(1c), s 10(1f)

13 Highway Act 1980, s 161(2).

II. THE MEDICAL/RESEARCH EVIDENCE

From the early 1990s researchers such as Barnes14 and the Committee of the Environment and Occupational Health Assembly of the American Thoracic Society havebeendebatingwhetherthereisarelationshipbetweenairpollutionandasthma Barnes argues, there is no relationship between normally encountered levels of air pollution and the worsening of asthmatic conditions; however, he does admit that where there are unusually high levels of Sulphur Dioxide SO2 (which one must note is just one of the many products of backyard burning) it is possible to have exacerbated asthmatic symptoms, since such high levels act as a trigger to bronchoconstriction.15 On the other hand, Cody, Weisel, Binbuam and Lioy16 conducting research in Mexico found that when air pollutants, especially ozone, increased, there was a parallel increase in emergency room visits for asthma and a corresponding increase in the use of medication by asthmatic patients; while McConnell, Berhane et al.17 found that positive associations between air pollution and bronchitis and phlegm were observed only among children with asthma. As PM10 (particulate matter) increased across communities there was a corresponding increase in the risk per interquartile range of bronchitis. Moreover, increased prevalence of phlegm was significantly associated with increasing exposure to all ambient pollutants except ozone. The research suggested that children with asthma were more likely to develop persistent lower respiratory tract symptoms when exposed to air pollution in Southern California.

An ecological study conducted by Johnson, Kavanagh, Bowman and Scott18 in Australiaduring2002,lookedspecificallyattheissueofbushfiresmokeandasthma and found that there was a significant increase in asthma presentations with each 10-µg/m3 increase in PM10 concentration. They concluded that airborne particulates from bushfires should be considered as injurious to human health as those from other sources. Of further significance, for this paper, is the fact that almost all of

14 Peter Barnes, ‘Air Pollution and Asthma’ (1994) 70 Postgrad Med J 319

15 Peter Barnes, ‘Air Pollution and Asthma’ (1994) 70 Postgrad Med J 325

16 R. Cody, C. Weisel, G. Bimbaum, P. Lioy ‘The effect of Ozone Associated with Summertime Photochemical Smog on the Frequency of Asthmatic Visits to Hospital Emergency Departments (1992) 58 2 Environ Res 184

17 Rob, McMconnell, Kiros Berhane, Frank Gilliland, Stephanie London, Hita Vora, et al. (1999) 107 9 ‘Air Pollution and Bronchitic Symptoms in Southern California Children with Asthma Environmental Health Perspectives 757

18 Fay Johnston, Anne Kavanagh, David Bowman, Randall Scott ‘Exposure to Bushfire Smoke and Asthma: An Ecological Study (2002) 176 MJA 535.

19

the fires in this study were ignited by people mainly during the weekends. This suggests that there was a clear lack of understanding or appreciation for the potential impact of bushfires for nearby residents.

Similarly, the Australian National Environment Protection Council suggested that each increase of 10-µg/m3 in the ambient concentration of respirable particulates was associated with a 3.0 % increase in exacerbations of asthma.20 In Durban, South Africa a similar story was being reported. This 2008 study looked at the relationship between asthma and ambient air pollutants (which included Sulphur Dioxide (SO2), oxides of Nitrogen (NOx), and respirable particulate matter <10µg/m3 (PM10) among primary school students. The results revealed that increased respiratory symptoms such as coughing, wheezing, chest tightening, or heaviness and shortness of breath were strongly and consistently associated with prior day fluctuations in ambient levels of both SO2 and PM10 in both single-pollutant and two pollutant models21. Rendered in more non-scientific terms, the research echoed the findings of other studies that reported that link between what can be called ambient air pollutants and exacerbated asthmatic and bronchial conditions.

A systematic review of the research across the United Kingdom that looked at the relationship between environmental exposures and asthma symptoms and exacerbations was conducted by Dick, Doust and Cowie et al.22 The results confirmed the link between increased asthma symptoms and exacerbations and exposure to potentially modifiable environmental exposures. This suggests that thereis anopportunityto reverseoratleastreducetheimpactofsuchenvironmental exposures; while in Spain, Vicedo-Cabrera et al.23 looked at the impact of wildfires that impacted the country in 2012 and revealed that due to exposure from wildfire smoke it tripled the probability of children having itchy watery eyes and a sore

19 Fay Johnston, Anne Kavanagh, David Bowman, Randall Scott ‘Exposure to Bushfire Smoke and Asthma: An Ecological Study (2002) 176 MJA 535

20 National Environment Protection Council. Ambient Air Quality Final Impact Statement and Assessment. Adelaide: NEPC (1998).

21 Emilie Kistnasamy, Thomas Robins, Rajen Naido, Stuart Batterman, Graciela Mentz, Caron Jack, Elvis Irusen ‘The Relationship Between Asthma and Ambient Air Pollutants among Primary School Students in Durban, South Africa’ (2008) 2 international Journal Environment and Health 365.

22 Smita Dick, Emma Doust, Hilary Cowie, Jon Ayres, Steve Turner ‘Associations Between Environmental Exposures and Asthma Control and Exacerbations in Young Children: A systematic Review’ (2014) BMJ Open 2014 4:e003827.

23 Ana Vicedo-Cabrera, Ana Esplugues, Carmen Iniguez, Marisa Estarlich, Ferran Ballester ‘Health Effects of the 2012 Valencia (Spain) Wildfires on Children in a Cohort Study’ (2015) Environmental Geochemistry and Health.

throat. In addition, there were significant interactions for asthma symptoms. The conclusion of this study was that the health of children, especially those who were predisposed to asthma and asthma related illnesses was adversely impacted by smoke and indeed other pollutants.

It is noteworthy that as the years progressed there were more and more studies that confirmed the correlation between ambient air quality pollutants and asthma exacerbations In some cases, the pollutants were specified, and other researchers suggested that the impact could be as a result of both individual and combined effects. The common thread that is relevant for this paper is that smoke irrespective of its source is implicated in reduction of ambient air quality which is important for health and wellness for people in general but especially for persons who suffer from asthma and other bronchiole conditions.

This first section is therefore ended quite aptly with this quote taken from Pandey and Kaur24 whomakeaclarioncall forattentionto address theissueofairpollution:

Air pollution then continues to be a significant threat to health worldwide. When we breathe in dirty air, we bring air pollutants deep into our lungs, thus air pollution causes serious damage to the respiratory tract. Air pollution exposure can trigger new cases of asthma and exacerbate a previously existing respiratory illness and provoke development or progression of chronic illnesses.25

III. THE STATE OF THE LAW/INDISCRIMINATE BURNING

Intheprevious sections, it is evidentthatsmokeis apollutantfrom bush fires, forest fires and in some cases domestic use of fossil fuels in heaters and such like; however, in the Caribbean and in Barbados specifically, the challenge with smoke comes mainly from indiscriminate backyard burning and a rash of cane and grass fires which occur during what is traditionally called the ‘crop season’ or sugar cane harvesting period. The words of the Chief Fire Officer captured by Julia Bentham26 are instructive here:

24 B Pandey, Gurpreet Kaur ‘Exposure to Air Pollution and Respiratory Disorders: An Overview’ (2016)

International Journal of Scientific and Innovative Research 4 (1) 25

25 ibid

26 Julia Rawlins-Bentham Interview with Chief Fire Officer Government Information Service (GIS) (2019).

Chief Fire Officer, Errol Maynard, said there was an overall increase of 147 per cent in the number of fires the BFS responded to up until February 25 this year (2019), compared with the corresponding period last year (2018). He said the BFS responded to 2, 200 fires last year, of which 1, 500 were grass and rubbish. This trend has not changed as Mr. Maynard said grass and rubbish fires continue to lead the statistics, with 270 grass fires being recorded so far this year, compared with 40 for the same period last year; and 90 rubbish fires this year, compared with 45 last year. Hemaintainedthat most personswhostart thefires areeitherburninggarbage or clearing lots and do not realize that their actions are destroying the environment, causing distress to persons, especially those with respiratory issues, and placing others in danger of losing their homes or even their lives, if and when these fires get out of control.27

This begs the question as to why this situation is allowed to continue like an annual parade. The author of this paper suggests two reasons, the lack of specific legislation and a regulatory framework, and the challenges associated with addressing the issue through the tort of nuisance, which will be addressed in turn.

IV. THE LACK OF SPECIFIC LEGISLATION AND A REGULATORY FRAMEWORK

In Barbados, there is no specific legislation that prohibits indiscriminate burning of rubbish or grass or whatever a person desires to burn This is although provisions are made for the creation of such legislation and regulatory frameworks to address the issue. For example, according to the Barbados Health Services Act, S4(1) 28 The Minister shall be responsible for the administration of this Act, and, without limiting the generality of the foregoing, his functions shall include (as per section 1(c) the abatement of nuisances and the removal or correction of any condition that may be injurious to the public health.

In section 10(1) it states, The Minister may, subject to negative resolution, make regulations for the proper carrying into effect of this Act, and in particular make regulations (according to 10, 1f) for the prevention, abatement or removal of nuisances and insanitary conditions on premises. Outside of the Barbados Health

s4(1c), s

(1f).

Service Act, there is also the Barbados Highway Act29; however, this Act also fails to specifically address the challenges associated with indiscriminate burning. For example,Section43,1and2speakonlytodischargingfireworksonto thehighway.

Themost recent foray into this legislativearena was theFire Service (Fees) Order.30 However, the focus of this piece of legislation was not to eliminate the practice of backyard burning but to offer an updated fee structure for services offered by the Barbados FireService and to establishthatpersonswhoaredesirous ofhavingopen flame or bonfire outside their homes, in situations where persons in the public domain could be affected, and their safety put at risk, a permit must be sought. According to the Chief Fire Officer on May 23, 2020, of the 17 requests for permits only three were approved.31 Some would argue those were three too many. Significantly, the Order leaves intact the domestic activities associated with indiscriminate burning such as backyard barbeques.

In a nutshell, what the legislation indicates is that the Minister of Health has been empowered to create the regulatory framework that would address indiscriminate burning in a definitive way; however, to date it has not been done. Two reasons are proffered for this lapse, the first is the impact of tradition. In Barbados it is customary, for persons to burn their garbage (especially at Christmas and Easter) as they seek to clean their houses. Therefore, the culture of tolerating smoke has become entrenched. Further, in the current economic context where the current political administration is grappling with the provision of an adequate garbage disposal service, one can appreciate why there may be a reluctance to prohibit backyard burning

The second reason proffered is the limited impact of advocacy to date, and the lack of awareness of the relationship between backyard burning and asthma and other respiratory ailments. For example, in Barbados, the Citizens Against Burning organization which advocates for the end to backyard burning, only has a membership of just under 500 persons. To its credit the organization has made strident and repeated calls for an endto the practice; however,to date there has been little more than promises of action. In Barbados, and indeed generally, legislative

reform takes place when an issue has reached a level that could jeopardize the wellbeing of a significant section of a society, and when the policy makers are made aware of this reality.

To move this issue forward then there would have to be a significant increase in the level of advocacy; however, as one can appreciate advocacy can be a long-drawnout process; therefore, as the advocacy is being undertaken the suffering of the persons who are adversely impacted by smoke continues unabated. A more immediate approach to address the problem can be found in the pursuit of a case of nuisance at common law; however, as will be established in the following section, this method is also fraught with its own challenges and hence underscores the role of legislative reform as the ideal option.

V. CHALLENGES ASSOCIATED WITH SEEKING REDRESS THROUGH THE TORT OF NUISANCE

One of the ways in which an aggrieved citizen can get redress for indiscriminate burning is to bring an action in tort for private or public nuisance. According to Kodilinye there are three categories of private nuisance; however, the one which is relevant for this paper is defined as substantial interference with the claimant’s use and enjoyment of his land, for example where the claimant is subjected to unreasonable noise or smells emanating from the defendant’s neighbouring land.32 What is significant is that even though the law has clearly defined nuisance, the main problem in the law of private nuisance is in striking the balance between the right of the defendant’s use to his land as he wishes and the right of the claimant to be protected from interference with his enjoyment of his land.33 The first problem with this approach to nuisance is the fact that it is premised on the rights of the landowners and the damage suffered must be substantial. Essentially, unless the person impacted by smoke is a landowner and the injury is substantial, however defined, he/she would be unable to bring an action in tort.

Further, this therefore potentially excludes all the children who suffer from asthma (at least the 10000 referenced earlier, who visited the Queen Elizabeth Hospital) who would hardly meet the standard of being deemed landowners, and even if they

did, they would have the added burden of producing evidence of their substantial injury. As noted by Kodilinye, it is easier for a claimant to succeed in tort when he can show material damage since tangible damage can be more easily observed and measured than personal discomfort or inconvenience arising from noise or smells.34

The second problem with private nuisance is that even if the persons impacted by the nuisance of smoke were able to overcome the problems outlined above, the next challenge is that the defendant would not be held liable unless the court deems his conduct to be unreasonable in the circumstances. In short, the law as it relates to private nuisance trades in the realm of the dubious and offers little hope for persons who suffer from smoke aggravating asthma

The third problem with nuisance as a remedy is the cost associated with litigation and the protracted nature of legal cases. An individual who is desirous of pursing a case in nuisance as it relates to smoke has to first retain the services of a lawyer and medical specialist who would be able to adduce evidence of the causative link betweensmokeandtheexacerbationofasthmaticconditions. Thiscouldbeacostly operation,especiallywhenoneconsidersthatthemattercouldbeinthelegal system for a protracted time.

A public nuisance on the other hand is committed where a person caries on some harmful activity which affects the general public or a section of the public.35 This type of public nuisance is a crime and is actionable by law. For it to be actionable by a private citizen, in the words of George J,36 that citizen must prove that the damage suffered must be other and greater than that which is common to all. This type of action presents a similar challenge to that for private nuisance. As was noted earlier, it is premised on landowner rights, and it is easier to prove material damage than personal discomfort or inconvenience. Further, since public nuisance must reach a criminal standard, one would have to prove that the smoke emanating from a person’s property was so toxic that it resulted in serious injury or death to a class of persons in the community.

Overall, in Barbados, it would be reasonable to assert that statute law and the law of nuisance do not provide adequate remedy for persons who suffer from smoke

34 Gilbert Kodilinye ‘Commonwealth Caribbean Tort Law 5th Edition’ (2015), 174.

35 ibid 171.

36 (1973) High Court, Guyana, No 249 of 1969 (unreported) [Carilaw GY 1973 HC34].

pollution created by backyard burning. Fortunately, other jurisdictions have provided some insight onhow the matter of backyard burning has been successfully addressed and this will be provided in the following section.

VI. BEST PRACTICES IN OTHER JURISDICTIONS

In the United Kingdom through the Highways Act,37 a person is guilty of a criminal offence if anyone on a public road is injured, interrupted or endangered because of fire or smoke from his/her bonfire. In addition, under the Environmental Protection Act,38 if an individual is affected by smoke, smell, or noise nuisance from neighbours or nearby industry, there are remedies available. Section 79(1) has identified eleven instances which would constitute “statutory nuisances” the first three are relevant for the purposes of this paper:

(a) Any premise in such a state as to be prejudicial to health or a nuisance.

(b) Smoke emitted from premises so as to be prejudicial to health or a nuisance.

(c) Fumes or gases emitted from premises so as to be prejudicial to health or a nuisance39

In wider Europe there is the 2008 Ambient Air Quality Directive,40 which sets legally binding limit values for concentrations of major air pollutants that impact publichealth,suchasparticulatematter(PM10 andPM 2.5 aswellasnitrogendioxide (NO2), Ozone (O3), and Sulphur Dioxide (SO2), all of which were implicated in the scientific studies explored earlier in this paper.

In the United States the Federal Government passed the Clean Air Act41 as early as 1970 and amended it in 1977 and 1990. The State of Washington also passed a corresponding Clean Air Act 2009, Chapter 70. 94. This Act expressly prohibits all outdoor fire containing garbage, dead animals, asphalt, petroleum products, paints, rubber products, plastics, or any substance other than natural vegetation that normally emits dense smoke or obnoxious odours.42 The Act also included a

37 Highways Act 1980

38 Environmental Protection Act 1990

39 Environmental Protection Act s 79(1).

40 Ambient Air Quality Directive 2008/50/EC

41 Clean Air Act 1970

42 Washington Clean Air Act RCW 70.94.6512.

number of hefty deterrent fines up to $10, 000 and $50, 000 and also incarcerations of not more than one year and up to five years.43

It was not surprising therefore thatthe EnvironmentalProtectionAgency EPA2011 report44 has suggested that the benefits of reducing fine particle and ground level ozone pollution would have reached approximately $2 trillion in addition to the other benefits of avoiding early death, preventing heart attacks and asthmatic attacks, and reducing the number of sick days for employees

VII. PLAN OF ACTION

Having surveyed the approach to the issue of indiscriminate burning, the attendant issues of pollution, exacerbated suffering for asthmatics, and general legal responses; the question that remains is, what should be the Barbadian response? This author suggests that the magnitude of the change that is required is one at the policy level; however, policy that is not entrenched in a well- articulated legislative framework will have little efficacy. It is for this reason that legislative reform is touted at the most useful vehicle to effect change. The proposed plan of action is therefore envisaged as two-part, the first aspect is public education, the second, is legislative change and the corresponding enabling subsidiary legislative framework.

VIII. PUBLIC EDUCATION

One of the main ways to change mind sets about an issue is through a well formulated public education programme. Unless people are made aware of the dangers associated with indiscriminate burning, they would not be inclined to change. For example, in Barbados there is the Citizens Against Burning, led by Wayne “Poonka” Willock, and the Asthma Association of Barbados, these organizations could be part of a government led initiative to raise public awareness, and to be at the forefront of advocacy for the elimination of backyard burning.

IX. LEGISLATIVE CHANGE

In conceptualizing the legislative framework required in Barbados it seems appropriate to adopt an eclectic approach and borrow from the best practices seen

in those jurisdictions which have sought to address the issue. To this end, the framework would have three core features as follows:

1. Expressed prohibition of backyard burning and deterrent fines for noncompliance.

2. Regulations governing alternative waste management options.

3. Legal status of burning inspectors and regulators.

X. EXPRESSED PROHIBITION OF BACKYARD BURNING AND DETERRENT FINES FOR NON-COMPLIANCE

In all the jurisdictions surveyed, what was common was a clear prohibition of burning of all types of refuse except where that burning was as a result of a specific provision and carried out within strict guidelines. This was captured in Ireland’s Waste Management prohibition of Waste Disposal by Burning Regulations 2009.

Section 2 and section 2a and 2b are instructive: 2. The purpose for which these Regulations are made include the prohibition of the disposal of waste by burning and the prevention of environmental pollution by such disposal. 2a. burning means the combustion of waste (a) with or without control of the combustion air, and without an adequate stack or chimney as to result in the emission of combustion products to the atmosphere in a manner that causes or is likely to cause environmental pollution. While Section 4(1) states that except as provided for in Regulation 5, a holder of waste shall not dispose of it by burning.45 In the State of Washington, the Clean Air Act 2009 at RCW 70.94 speaks to the same thing. This approach would be useful since it would allow for burning in controlled circumstances

Deterrent fines for non-compliance are another useful practice observed. In Ireland under Section 12 (1) of the Air Pollution Act 46 A person guilty of an offence under this Act shall be liable;

(a) on summary conviction, to a fine not exceeding £1,000 (together with, in the case of a continuing offence, a fine not exceeding £100 for every day on which the offence is continued and not exceeding

45 Waste Management Prohibition of Waste Disposal by Burning Regulation (2009) s 2, 2a, 2b, s 4(1) 46 Air Pollution Act, 1987.

in total an amount which, when added to any other fine under this paragraph in relation to the offence concerned, equals £1,000), or to imprisonment for any term not exceeding six months or, at the discretion of the court, to both such fine and such imprisonment,

(b) on conviction on indictment, to a fine not exceeding £10,000 (together with, in the case of a continuing offence, a fine not exceeding £1,000 for every day on which the offence is continued), or to imprisonment for any term not exceeding two years or, at the discretion of the court, to both such fine and such imprisonment.

In British Columbia, Canada Section 3 of the Environmental Management Act Open Burning Smoke Control Regulation,47 a person must not burn, with debris that is open burned, the prohibited material set out in Schedule A. If a person contravenes section 3 or 3.1, or a provision of Part 3 of Schedule B, he/she commits an offence and is liable on conviction to a fine of not more than $200 000.

The point to be noted is that the fines must be of such a magnitude that they discourage the modes of behaviour that are inconsistent with the goals of reducing pollution levels.

XI. REGULATIONS GOVERNING ALTERNATIVE WASTE MANAGEMENT OPTIONS

In addition to the provision of fines there must also be a comprehensive programme of solid waste management based on subsidiary legislation. This could include recycling options, garbage separation and composting alternatives. For example, in the United Kingdom, Ireland, United States, Australia, and Canada provision is made for sustainable waste management. For example, in Canada, the Canadian Centre for Pollution Prevention: Great Lakes Trash and Open Burning operates a website that is dedicated to helping residents to find alternatives to backyard burning.48 In the United Kingdom, apart from the traditional garbage separation strategies there is also use of Industrial symbiosis which is a way of turning waste

47 Environmental Management Act Open Burning Smoke Control Regulation [2018]

48 Canadian Centre for Pollution Prevention: Great Lakes Trash and Open Burning Website www.openburning.org.

materials into profit. In Australia there are several waste-to-energy projects that provide alternatives to backyard burning.

The fundamental point being made is that there are alternatives that are available, it would be up to the policy makers to develop subsidiary legislation to guide strategies whether singly or in combination will be used to offer citizens viable alternatives.

XII. LEGAL STATUS OF BURNING INSPECTORS AND REGULATORS

A critical feature of any legislative reform is the capacity to regulate and enforce the reform. If there are deterrent fines, then there must also be individuals tasked with ensuring that those who run afoul of the law will be swiftly brought to justice. In the regulatory framework provision must be made for an individual who has the legal right to address any instances of indiscriminate burning which may persist. For instance, in the British Columbian example, which was used earlier, provision is made for a director who acts like a type of fire police with commensurate powers to take immediate action. According to Section 4(1):

If, in theopinion ofadirector,pollutionis occurring from open burning,thedirector may;

(a) by public notice or written instruction, or both, suspend the exemption referred to in section 2 for specified areas and periods not to exceed one month in duration,

(b) require that burning debris be extinguished, or

(c) require that no additional debris be added to the fire.

(2) If, in the opinion of a director, pollution may occur from open burning, the director may

(a) by public notice or written instruction, or both, suspend the exemption referred to in section 2 for specified areas and for periods not exceeding 7 days in duration,

(b) require that the burning debris be extinguished, or

(c) require that no additional debris be added to the fire.

(3) If, after 7 days, a director is of the opinion that pollution may continue to occur from open burning, the director may re-issue the notice as specified in subsection (2)(a).49

The main point of the foregoing is that the Burning Inspector or Regulator is given the power to take immediate action. Persons who are impacted by smoke are best served if those charged with policing the prohibition of it are given power to act with immediacy.

XIII. CONCLUSION

From the evidence adduced thus far in this paper, three salient points remain relevant, the first is that there is indeed a strong correlation between smoke (irrespective of its origin) and exacerbation of asthmatic and other respiratory symptoms. The second, is that statue and common law does not adequately provide for persons who are impacted by smoke as a nuisance. The third is that there are legal best practices in other jurisdictions and the fourth is that the legal best practices can be adopted or modified to address the issue in the Barbadian context. It would therefore be appropriate to end by calling on those in authority to bring an urgent end to the scourge of indiscriminate burning, on legal, scientific, and humanitarian grounds. 49 Environmental Management Act Open Burning Smoke Control Regulations s 4 (1-3).

The Jury System in Small Island Caribbean States: Has it Outlived Its Usefulness?

Rhianna Smith*

I. INTRODUCTION

For about 800 years, the Jury System has played an integral role of being one of the pillars of Common Law and like many other legal tenets have been obtruded upon the Legal Systems of former British colonies. This paper seeks to explore whether the jury system has outlived its usefulness and what might be some appropriate reforms to enhance its relevance and effectiveness.

British historian and academic, G.M Trevelyan, traced the origins of the Jury System as we know it, to the Viking occupation in Anglo Saxon England. He submitted that;

The Scandinavians, when not on the Viking warpath, were a litigious people and loved to get together in the 'thing' to hear legal argument. They had no professional lawyers, but… many were learned in folk custom and in its intricate judicial procedure. A Danish town in England often had, as its principal officers, twelve hereditary 'law men'. The Danes introduced the habit of making committees among the freemen in court, which perhaps made England favourable ground for the future growth of the jury system out of a Frankish custom later introduced by the Normans.1

Within that same era, King Ethelred the Unready is said to have issued a legal code at Wantage which stated that twelve minor nobles of every small district were to swear that they would investigate crimes without bias.2 This code influenced that

* This paper was written during my second year of my L.L.B at The University of the West Indies Cave Hill Campus.

1 G.M Trevelyan, A Shortened History of England (Penguin Books 1958).

2 G.M Trevelyan, A Shortened History of England (Penguin Books 1958).

which was introduced by Henry II in the 12th century, who sought to cultivate a more scientific and rational approach to the ‘justice’ system at the time.3 He did this by nursing the plague of superstition and the inhumane ‘trial by ordeal’ with equity and ‘trial by jury’ therein proclaiming that court disputes were to be arbitrated by twelve free and lawful men, who were tasked with unearthing and investigating the facts of cases.

While there lie many differences between the jury system of the 12th century and that of the 21st, the knowledge of its history rests comfortably in the importance of understanding the roles and aims of this phenomenon of a jury system. In turn, its acknowledgement, aids us in understanding the courts of Britain’s former colonies with exception to India and South Africa who, have since, abolished the Jury System.4

Chief Justice of Trinidad and Tobago, Ivor Archie, who is in favour of eradicating the Jury System, holds that the placing of justice and complex evidence within the hands of unpaid lay jurors with no legal training presents numerous shortcomings concerningthe‘functional literacy’ofjurors whohavebeenchosenfrom an already small pool, and those instances of inevitable personal bias.5 One must also consider other issues such as the hindrance of productivity as it relates to the slowing down ofjudicialprocessesandtheeconomicrepercussionswhenspeakingoftheretention of the jury system.

It should be noted that these concerns are not only the concerns of Trinidad and Tobagobut ofotherEnglish-Speaking Caribbean countries as well. IntheBahamas, former Chief Justice Sir Burton Hall has remained critical of the Jury System being used for certain cases, considering it to be inefficient, “both in terms of time and in terms of money.”6 Belize has followed a similar route by abolishing trials by jury in some cases, for instance, for murder. In Barbados, while no great legal action has been taken, Chief Justice Sir Marston Gibson, in the Third Distinguished Jurist

3 Tessa Shepperson, 'The Kings Courts and The Start of The Common Law' (The History of Law Blog, 2020) <http://historyoflaw.co.uk/kings-courts-start-of-common-law/> accessed 9 January 2020.

4 'Trial By Jury - Daily Times' (Daily Times, 2020) <https://dailytimes.com.pk/304779/trial-by-jury/> accessed 10 January 2020.

5 'Twelve Clueless Men' (The Economist, 2020) <https://www.economist.com/the-americas/2014/08/30/twelveclueless-men> accessed 10 January 2020.

6 “AG wants to abolish jury trials in certain cases” Nassau Guardian June 11, 2013. Available at: http:// www.bahamaslocal.com/newsitem/75017/AG_wants_to_abolish_jury_trials_in_certain_cases.html> accessed 10 January 2020.

Lecture uttered that, “The jury should not be maintained out of sentimental value or nostalgia or because this is what we are used to or because this is what other countries are doing.”7 Giving reference to the retention of an arguably outdated system for the sake of tradition and not because it has been tried, tested and proven to be a necessity.

However, other legal thinkers, like Justice Wit, postulate two main reasons for why the Jury System should not be abolished in the Caribbean – firstly, the citizens would become suspicious of the government’s motives and secondly, because the jurysystem has not lost all ofits virtues andthereforeis capableof being reformed.8

For the sake of this paper, we will focus on the Jury System as an outdated system, the jury as an economic liability and the jury, most famously, the jury as a body filled with biases along with the fact that the jury system is not inclusive enough.

II. THE JURY AS AN OUTDATED SYSTEM

The picture that is painted of the legal system is one where the judges are the puppets of a wicked bourgeois – who are commoner-hating and make decisions out of this bias. The jury system is idolized as the shield for the common man –and this image alone promotes a flaw.

While the image of the gatekeepers of the law being those may have served to paint a picture of our past of which was marked by great oppression and exploitation basedonone’srace,gender,andfinancialdisposition.However,itmustbeaccepted that our institutions have evolved to the degree where any form of discrimination is eliminated – at least legally.

This can be seen in the constitutional right as seen in Section 23(b) of the Barbadian Constitution which states that;

No person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.9

7 2013 Distinguished Jurist Lecture (2013).

8 ibid (n 6)

9 The Constitution of Barbados 2002.

With similar clauses being enshrined within the constitutions of most, if not all of the English-Speaking Caribbean countries. No longer, are the laws used to restrict and limit the rights of the minor majority nor to hold the state ‘paternalistically’ responsible for the affairs of their slaves.10 But, to support a country that is free of chaos, one that shapes moral standards, promotes social justice, orderly change and remedy from the state for those citizens who do not think that this is the case.

The image, which is promoted of the legal system, therefore, cannot be used to justify the necessity of a trial by jury. Firstly, because our societies are far more diverse and functional beyond those societies which revolved around the relationship between the planters and the enslaved, apprenticed or working class. Secondly, because our law acknowledges the livelihood of almost every citizen and as far as possible seeks to eradicate discrimination of all forms. In the modern-day Caribbean, we can see that conversations are being held as it pertains to the rights of those who identify and maintain relationships that can be classified as unconventional. Efforts of inclusivity and equal rights for all can also be seen in the evolving Sacramental Law Bill in Barbados – which aims at extending the religious freedoms of the Rastafarian community, in which worship, marijuana plays an integral role.11

Besides this, the reasoning behind the idea that the jury serves to safeguard the citizen from the state is inconsistent, as time and time again – this legislative body, especially in modern times, has proven that it is not seeking to work against the citizen but with him/her. In the Caribbean, for the most part, our judges are men and women who look like us, were raised with us and share the same interests as us. Therefore, we must not allow our historical wounds and grievances to distrust and automatically ‘write-off’ the current administrators of justice. The relationship between the citizen and the legal system does not, in any way, call for the former to be protected by the latter in the form of a Jury System.

10 Unknown

11 Admin, 'Sacramental Cannabis Bill 2019 - Our Afrikan Heritage Magazine' (Our Afrikan Heritage Magazine, 2020) <http://www.afrikanheritage.com/sacramental-cannabis-bill-2019/> accessed 10 January 2020.

III. THE JURY AS AN ECONOMIC LIABILITY

With regard to the economic costs, the burden carried by the state is not overly onerous. The expenditures incurred would be limited to the clerical administration of the system and the basic provisions and accommodation for the jurors on duty.

Sequestration is a rarity. However, employers do suffer loss of man-hours and might be forced to hire replacement staff. Indeed, there have been instances where employers sought to discourage employees from serving. Self-employed jurors will also have to forego earning opportunities.

The state could consider providing tax allowances or rebates to recompense businesses and individuals who sustain financial losses due to jury duty. This might also help to heighten participation in the process.

IV. THE BODY OF BIASES

British Special Prosecutor Helen Garlick in the case of Turks and Caicos’ Former Premier Michael Misick, who, along with four other ministers from his cabinet who were facing charges concerningcorruption,said that it is ‘very, very difficult to find an impartial jury’.12

Individuals all have their inherent biases such as judging an accused person on how he looks or speaks or even based on who is his lawyer. The prevailing issues of the daymightalsoinfluencehowajurordecides.Forexample,giventhepreponderance of gun crimes in the Caribbean, a juror might be minded to find a person accused of such guilty regardless of the facts, to send a message.

Women are more likely to believe an alleged female rape victim and a person that is even accused of child sexual assault is viewed as an instant pariah. Statistics submitted by the Gothenburg University in Sweden show that conviction rates for sex offenses soared by 16% after women were allowed to sit on English juries in 1921.13 However, as Professor Hjalmarsson said, this data could show that there

12 'Twelve Clueless Men' (The Economist, 2020) <https://www.economist.com/the-americas/2014/08/30/twelveclueless-men?frsc=dg%7cd> accessed 10 January 2020.

13 Neil Shaw, 'Juries with Women More Likely To Convict People Of Sex Offences' (devonlive, 2020) <https://www.devonlive.com/news/devon-news/juries-women-more-likely-convict-1574121> accessed 10 January 2020.

was a shift in the overall fairness and effectiveness of the modern criminal justice system which has had arguably little to do with the role of women.14

Nevertheless, in our discussions about the Jury System, we must be sure not to forget that a juror is a human being first. So, to the writer, it comes as no surprise that OJ Simpson was acquitted by an all-black jury who lived in the same era where black men found themselves oppressed by the police.15 Nor does it come as a surprise that white police officer Jason Van Dyke was found innocent by a jury that had one black person in a 31% black state of Chicago, a state known for tensions between black citizens and the police, after allegedly maliciously killing a black teen on video.16 It does not even come as a surprise that a juror in Vybz Kartel’s murder charge was suspected of accepting bribes17 – because jurors are human beings, who will have human downfalls. Moreover, they share human interests whether that interest entails sending or not sending a message about racial and gender discrimination or financial interest.

To go further, we must accept that bias goes beyond the social paradigms that influence the actions of every living and autocratic being. An article written by The Economy, which focused on the jury system and its role in the Caribbean, held that “In small countries with a lively gossip network and active media, it is hard to find unbiased jurors.”18 One has to wonder if this fact alone renders the jury completely ineffective

as the chance of impartiality is arguably non-existent. Nevertheless, these biases can be militated against by ensuring that a jury is fully representative of the society in terms of sex, age, religious beliefs, socio-economic background and such. Jury selection should be more scientific to ensure that this is achieved. Perhaps too, in high profile cases, the courts should seek out jurors from other countries. This would be a greater expense, but justice is worth the cost.

14 ibid

15 'Why The Jurors Found O.J. Simpson Not Guilty' (Bustle, 2020) <https://www.bustle.com/articles/151739why-was-oj-simpson-found-not-guilty-jurors-cited-reasonable-doubt> accessed 10 January 2020.

16Brandon Patterson and others, 'Chicago Is 31 Percent Black, But There's Only One Black Juror at This Chicago Cop's Murder Trial' (Mother Jones, 2020) <https://www.motherjones.com/crimejustice/2018/09/chicago-jason-van-dyke-jury-selection-murder-trial-2/> accessed 10 January 2020.

17 S. Leslie, 'Vybz Kartel Corrupt Juror Trial Evidence Raises More Fairness Questions, Says Attorney - Urban Islandz' (Urban Islandz, 2020) <https://urbanislandz.com/2019/10/04/vybz-kartel-corrupt-juror-trial-evidenceraises-more-fairness-questions-says-attorney/> accessed 10 January 2020.

18 ibid (n 11).

Moreover, as Caribbeanstates wemust shareeach other’slegal burdens forthesake of regional integration.

When we flip the coin, to discuss the bias in the jury system, – we would see that the issues of bias, do not only arise with the juror but with the courts themselves. This is reflected in the small pool in which the jurors are chosen in the first place. While the exact jargon is not specifically found in the constitutions of the English Caribbean States, a criminal defendant has the right to be tried by a jury of his/her peers. This dates back to the signing of the Magna Carta in England.19 In this context, the ‘peer’, is not one in whom the defendant shares a relationship of affection but rather someone who is reflective of those who live in society.

Professor Ramesh Deosaram, in the 2013 Distinguished Jurist Lecture, asked us at Caribbean citizens to consider to what extent the jury is representative of the community.20 Upon studying the qualifications and exemptions of those persons who can serve as a juror, one would see that the pool in which jurors are chosen from is not excessively big Thus, as Lord Atkin asked, ‘Who, then, in Law, is my neighbour?” so must we, as progressivelegal gatekeepers ask, ‘Who,then,in Law, is my peer?”

Quite frankly, after the extraction of those who cannot sit as jurors – we are left with a set of laymen and unprofessional persons between the ages of eighteen and seventy in the case of Trinidad and Jamaica or sixty-five in the case of Barbados–and this is no exaggeration.

In the Jury’s Act of Barbados for instance – the following persons are exempted from serving on the duty according to Section 6 of the 1995 Act:21

1. Members of the Privy Council

2. Members and Officers of the Senate or House of Assembly

3. Judges

4. Magistrates

19 'Trial By Jury - Magna Carta: Muse and Mentor | Exhibitions - Library of Congress' (Loc.gov, 2020) <https://www.loc.gov/exhibits/magna-carta-muse-and-mentor/trial-by-jury.html> accessed 10 January 2020.

20 ibid (n 6)

21 CAP 115B Juries Act 1995.

5. Ministers of the Christian Religion

6. Heads of Missions; Diplomats

7. Consular officers or employees

8. Members of the armed forces

9. Members of the Police Force

10. Persons employed in the public service as the Judicial Advisory Council

11. Commissioners of Probate

12. Attorneys at Law

13. Officers of the Courts of Law

14. Legally qualified medical practitioners

15. Wives and husbands of the aforementioned persons

The pool of potential jurors is also rendered smaller when one considers the disqualifications listen in Section 5 of the aforementioned act.22 These include;

1. Persons with criminal convictions

2. The illiterate

3. Persons with unsound minds

4. The deaf or blind

5. The bankrupt

6. Those with a deed or arrangement with their creditors

The exemption list of Barbados is quite similar to that of Trinidad and Tobago’s with exception to persons including:23

1. Justices of the Peace

2. Licensed Druggists

3. School Teachers

4. Members of the Fire Service

5. Pilots and members of the Aircrew

6. Jailors

One may argue that the Jury System now is more inclusive than the jury system then – where virtually only white men could serve as jurors. However, ‘inclusion’, goes beyond race and gender - it speaks to the acceptance of persons with differing physical abilities, mental capacities, and personal biases. For instance, it is outrageous that the deaf and blind cannot serve as jurors in an era where the investment of proper technologies to facilitate them could allow for such.

It should be noted, that provisions have been made for prosecutors and defence attorneys to object to the inclusion of certain jurors. These are challenges for cause and peremptory challenges. Attorneys, however, must have a legitimate reason for making these objections.

Historically, in the United States, these challenges were usually used to exclude jurors on the ground of race and gender.24 However, the United States’ Supreme Court limited the freedom to use peremptory challenges based on the aforementioned factors. Of note, no such actions have been taken in the Caribbean. However, moving forward, perhaps more conversations could be had about the inclusion of certain jurors such as the deaf and blind.

V. CONCLUSION

When we encapsulate all that is known of the Jury System in the English-Speaking Caribbean, we can agree that though there is much space for reform, the Jury System has not completely lost its merit. If we as English-Speaking Caribbean States are to retain the Jury System, we must allow investing in its reformations to the degree that serves more in the name of democracy and justice than it disserves us. This paper sought to consider the Jury System and presented various reforms including the widening of the juror pool – namely to the deaf and blind, a more

24 Bri Lee, 'Juries Are Often Prejudiced, Just Like Society. Should We Get Rid of Them? | Bri Lee' (the Guardian, 2020) <https://www.theguardian.com/law/2018/jul/21/juries-are-often-prejudiced-just-like-societyshould-we-get-rid-of-them> accessed 10 January 2020.

scientific way of selecting jurors, giving compensation to businesses and individualswhoincurlossesduetojuryserviceandgettingjurorsfromotherislands to preside over high-profile cases.

Unity or Diversity? A Caribbean Perspective on The Age of Criminal Responsibility

Faith Beckles*

I. INTRODUCTION

The aim of this paper is to assess the age of criminal responsibility (ACR) with respect to the Caribbean context and factors which should be considered when devising this age. Subsequently, it will be discussed whether the Caribbean should unite and align in having one ACR across the region. The relevance of which stems from the recent deepening of the CARICOM integration movement. Moreover, in light of the recent spike of young offenders in gang related violence, the region is faced with the issue of developing more innovative methods of rehabilitating these young offenders into society.

Therefore, this paper will evaluate whether there should be one standard ACR throughout the Caribbean, examining the different aspects relevant to when a child is no longer ‘doli incapax’. This will be achieved by determining what is the ACR, its relevance, how it is established and a comparative analysis between the legislation and case law establishing this age in the respective islands within the region. Lastly, it will be deduced, whether it would be plausible for the Caribbean to device one standard ACR.

SECTION I: THE FRAMEWORK

II. WHAT IS THE AGE OF CRIMINAL RESPONSIBILITY?

According to common law, the ACR is the age at which a child becomes capable of committing an unlawful offence. This can also be considered the benchmark or threshold for which an offender may be eligible for the defence of infancy.1

* This paper was written during my first year of my L.L.B at The University of the West Indies Cave Hill Campus.

1 David Ormerod and Karl Laird, Smith and Hogan’s: Criminal Law, (14th edn, OUP 2015) 384.

Moreover, the ACR is also the age where a child is no longer ‘doli incapax’ meaning incapable of committing a crime. A presumption only rebuttable where, the prosecution proves beyond reasonable doubt that the child in question,willingly committed the actus reus of the crime while possessing the prerequisite mens rea and also understood or appreciated that what they did was seriously wrong.2

These principles were laid out in the case of C v DPP3 where the House of Lords held that children under the ACR were incapable of committing an offence, and thus afforded the defence of infancy, unless it was proven they knew what they did at the time was seriously wrong.4 Moreover, section 16 of the Children and Young Persons Act 1963 amended section 50 of the 1933 Act to effectively read, “it shall be conclusively presumed that no child under the age of ten years can be liable of any offense.”5 With respect to the Caribbean Context, (See Appendix A).

III. WHY IS THE AGE OF CRIMINAL RESPONSIBILITY RELEVANT/ IMPORTANT?

As far as the ACR goes, responsibility subsequently establishes the threshold for the defence of infancy, it is a pivotal factor in ensuring that young offenders are adequately being rehabilitated into society regarding the spike in crime rates (of youth offenders) across the region. Furthermore, in light of the recent deepening of Caribbean integration over the past decade. The concept of ‘doli incapax’ becomes one of high importance where larger numbers of families are migrating across the region, resulting in an intermixing of different social patterns, behaviours and mentalities. Thus, there emerges a serious need for law reform catering to these pressing concerns, ensuring that these child offenders are adequately reintegrated back into society even in the absence of criminal sentencing.

2 David Ormerod and Karl Laird, Smith and Hogan’s: Criminal Law, (14th edn, OUP 2015) 385.

3 C v DPP [1996] AC 1, HL.

4 Richard Cross and Jill Molloy, Card, Cross and Jones; Criminal Law, (22nd edn, OUP 2016) 596.

5 Children and Young Persons Act 1963 CAP 37 s. 16.

SECTION II: A DEEPER UNDERSTANDING

IV. WHAT FACTORS MUST BE ASSESSED WHEN DETERMINING THE AGE OF CRIMINAL RESPONSIBILITY?

In devising the ACR, legislative drafters must take into account all factors which would influence whether or not a child is capable of understanding and appreciating right from wrong such as the following:

a. Psychological Factors

Family Influence: Family being one of the fundamental influences on child development should therefore be at the forefront of the legislative drafter’s minds when devising the ACR, especially where it might cater to the entire Caribbean. As family poses a large influence on children’s development, the type of activities which theyengagein also haveimpacts uponthechild’scognitivedevelopment and ability to perceive what is right from wrong.6

For example, children exposed to domestic violence either, directly as the sufferer or, indirectly as a witness have been proven to become fearful, withdrawn, and depressed. Whereas others may display a phenomenon classified as ‘identification with the aggressor’ where in fear of being injured the child joins the abuser in executing aggressive behaviour.7 With this, the element of aggression is implanted into children raised in violent households, who then go onto develop low selfesteem, development delays, conduct disorders and violence towards others.8 Therefore, how children are treated at home strongly impacts upon how they respond and treat others.

Peer Influence: Like the family, peer influence also appears to have lasting effects on children’s ability to make decisions and decipher things for themselves. Thus, the activities which children engage in with their peers can have an equal to similar impact on their moral beliefs and conduct, as children usually spend most of their

6 Per-Olof H. Wikstrom et al, Breaking the Rules:The Social and Situational Dynamics of Young People’s Urban Crime, (1st edn, OUP, 2002) 264.

7 Sharon rose-gittens, ‘Behind The Curtain – Domestic Violence and Children’, UNICEF: Children in Focus (Bridgetown, 2003) 13.

8 Sharon rose-gittens, ‘Behind The Curtain – Domestic Violence and Children’, UNICEF: Children in Focus (Bridgetown, 2003) 13.

peer-oriented time away from home and usually in a public setting.9 A study carried out in Trinidad and Tobago revealed that amongst the risk factors which cause young people to join gangs included peer influence. Moreover, having antisocial peers and peers who have used illicit drugs are initiates for teenagers to engage in these activities themselves.10 Studies have also shown that peer-influence varies instinctively with shifts in culture,11 which may prove to be of high relevance in light of the vast culture diversity within the region.

Cognitive Development: Across the region, research has indicated an average delay in young children’s developmental understanding of what is right from wrong.Meaning, wherethis shouldbemanifested in earlierstages oftheircognitive development, it is only being executed at later stages of development.12 Furthermore, recent research in the UK indicates that when the ACR responsibility was set in most regions,littlewas knownabout brain development andthecognitive abilities of children. Therefore, there was never a plausible or definite reason for the ACR responsibility to be 10, as seen in England. It further advocates the urgent need forlawreform concerningthe ACR as most significant cognitivedevelopment occurs between the ages of 10 to 19 years.13

The research asserts, there exists a worldwide pattern regarding adolescent criminal behaviour irrespective of culture, creed or race and that criminal behaviour peaks in late adolescent years then decreases in adulthood.14 Their risk taking, or criminal behaviour can be heavily attributed to their neurodevelopmental immaturity, since adolescents are less capable to cogitate the standpoint of others when making decisionsortakinginappropriateactions.Therefore,theirbraindevelopment causes

9 Per-Olof H. Wikstrom et al, Breaking the Rules:The Social and Situational Dynamics of Young People’s Urban Crime, (1st edn, OUP, 2002) 267.

10 Anthony Harriott and Charles M. Katz (eds), Gangs in the Caribbean: Responses of State and Society, (The University of the West Indies Press, 2015) 109.

11 Herbert A. Bloch, The Gang: A Study in Adolescent Behavior, (Philosophical Library, 1958) 15.

12 The University of the West Indies (Caribbean Children Development Centre (CCDC)), Learning Outcomes for Early Childhood Development in the Caribbean: A Handbook for Practitioners, (The Chalkboard Press, 2010). <https://www.open.uwi.edu/sites/default/files/docs/Learning_Outcomes_Handbook.pdf> accessed 31st March 2019.

13 Houses of Parliament, ‘The Age of Criminal Responsibility’, (PostNote, 2018) 2 < researchbriefings.files.parliament.uk/documents/POST-PN-0577/POST-PN-0577.pdf> accessed 31st March 2019.

14 Houses of Parliament, ‘The Age of Criminal Responsibility’, (PostNote, 2018) 3 < researchbriefings.files.parliament.uk/documents/POST-PN-0577/POST-PN-0577.pdf> accessed 31st March 2019.

many to prioritise immediate gain over long-term consequences.15

With respect to the Caribbean context, in more violent societies the tendency of younger children to commit criminal activity does not indicate a need for the ACR to be lowered. Mainly because these children are inherently too cognitively premature to be held solely accountable for their actions, taking into account the factors – financial, social and psychological – under which they were reared. This presents a serious disparity which needs to be remedied by appropriate law reform.

Mental Illness/ Disability: There exists high rates of mental illnesses amongst juvenile offenders in addition to communication, learning disabilities, and brain development disorders.16 All of which are capable of affecting children’s ability to perceive and conceptualise situations and make definite decisions. These mental issues inevitably add to the complexity of devising an ACR as they delay the age at which the suffering child can be deemed capable of being criminally accountable for their actions.17

b. Biological Factors

Studies have proven a direct link between criminal traits being manifested in the biological children of offenders. This study was conducted upon orphans who had no previous knowledge of their biological parents to ensure that the results were not biasedor potentially swayedbyparental influence.Yet the results still reflectedthat those orphans whose parents were offenders were more likely to be convicted of criminal activity than orphans whose biological parents had no previous encounters with the law.18 Moreover, studies also indicate, an increased tendency to break the law associated with the Y chromosome. Therefore, the presence of 2 Y chromosomes, also presents increased traits of aggression and reduced IQ, which have attributed to rising risks of criminality.19

15Houses of Parliament, ‘The Age of Criminal Responsibility’, (PostNote, 2018) 3 < researchbriefings.files.parliament.uk/documents/POST-PN-0577/POST-PN-0577.pdf> accessed 31st March 2019.

16 Houses of Parliament, ‘The Age of Criminal Responsibility’, (PostNote, 2018) 1 < researchbriefings.files.parliament.uk/documents/POST-PN-0577/POST-PN-0577.pdf> accessed 31st March 2019.

17 Houses of Parliament, ‘The Age of Criminal Responsibility’, (PostNote, 2018) 3 < researchbriefings.files.parliament.uk/documents/POST-PN-0577/POST-PN-0577.pdf> accessed 31st March 2019.

18 Tamara L. Roleff (ed), Crime and Criminals; Opposing Viewpoints, (Greenhaven Press, 2000) 20.

19 Tamara L. Roleff (ed), Crime and Criminals; Opposing Viewpoints, (Greenhaven Press, 2000) 22.

c. Social Factors

High Crime Society: Regarding the Caribbean, one may define a ‘high crime society’as onewhereasub-cultureofviolenceexists. Asociety wherethehomicide rate reaches 20 or more incidents per 100,000 persons in the population for at least 10 consecutive years (See Appendix B).20 It is further classified as a society where citizens coexist with violence, geographically concentrated in inner-city communities and reducing it as the state has failed to do so.21 As seen in the case of Jamaica and Trinidad, while the Caribbean was ranked the second most dangerous and violent regions in the world in 2010.22

Subsequently, many consequences arise which alters a child’s ability to effectively understand right from wrong, and their ability to appreciate responsibility for their actions. One such outcome being Urban Survival Syndrome (USS), a form of posttraumatic stress disorder (PTSD).23 USS, asserts that growing up in a poor, violent, urban neighbourhood generates an increased sense of fear or danger causing the sufferer to commit criminal acts which seem unreasonable to the ordinary person.24

Additionally, children when exposed to a reality of violence suffer from: depression, poor school performance, anxiety, and distrust in adults. Since children are vulnerable to the effects of violence it usually causes irreversible damage to their development process.25 Therefore, constant exposure to violence has serious implications on a child’s ability to understand and comprehend what is right from wrong. Thus, they may resort to using violence as a coping mechanism, not having

20 UNDP, Caribbean Human Development Report 2012: Human Development Shift to better Citizen Security (UNDP, 2012) 21

<http://myelearning.cavehill.uwi.edu/pluginfile.php/1020023/mod_resource/content/1/C_bean_HDR_Jan25_20 12_3MB.pdf> accessed 30th March 2019.

21 UNDP, Caribbean Human Development Report 2012: Human Development Shift to better Citizen Security (UNDP, 2012) 21

<http://myelearning.cavehill.uwi.edu/pluginfile.php/1020023/mod_resource/content/1/C_bean_HDR_Jan25_20 12_3MB.pdf> accessed 30th March 2019.

22 UNDP, Caribbean Human Development Report 2012: Human Development Shift to better Citizen Security (UNDP, 2012) 36

<http://myelearning.cavehill.uwi.edu/pluginfile.php/1020023/mod_resource/content/1/C_bean_HDR_Jan25_20 12_3MB.pdf> accessed 30th March 2019.

23 Demetra L. Liggins, ‘Urban Survival Syndrome: Novel Concept or Recognized Defense?’, 217 < http://myelearning.cavehill.uwi.edu/pluginfile.php/1015676/mod_resource/content/1/Urban_Survival_Syndrom e.pdf.> accessed March 30, 2018.

24 Demetra L. Liggins, ‘Urban Survival Syndrome: Novel Concept or Recognized Defense?’, 217 < http://myelearning.cavehill.uwi.edu/pluginfile.php/1015676/mod_resource/content/1/Urban_Survival_Syndrom e.pdf.> accessed March 30, 2018.

25 ibid 225-226.

an appreciation for the consequences of their actions as seen with USS. This can lead to the commission of offenses such as battery and assault. Where the mens rea of these offences may be inferred based upon the minor’s actions excluding the many factors which must be evaluated in determining whether that child truly had an understanding of what they were doing and knew that it was wrong.

Religious Affiliation: As there exist many religions across the Caribbean, all with varying beliefs and practices, this is a crucial mitigating factor in children’s understanding of right from wrong. Therefore, certain religious practices which are permitted and legalised in one Caribbean Island due to the high prominence of pluralism exhibited may not be legal in other Caribbean Islands and so, the laws would not cater to this pluralism. Moreover, as morality plays a vital role in children’s development. The religion which a child’s family follows can have implications on the moral values that are instilled and exposed to the child.

Religious affiliation can alter moral development and what is morally correct under some religions is however, not legally permitted in all territories. For example, with respect to Rastafarianism, there exists the religious practice of smoking marijuana to deepen their faith.26 Thus, this is morally correct to children raised within this religion, however, marijuana may not be legalised in other Caribbean territories for the purpose of recreational use. Engaging in this religious practice would constitute an offense, yet these children would not have an understanding of their legal wrong since it is morally justifiable under their faith. The question turns upon whether the child appreciated the illegal nature of their actions given the fact that they were taught that it was morally right.

Financial Circumstances: Poverty has been a relentless struggled face by the region since the period of emancipation, with present day being no exception. Poverty refers to a standard of living below the general standard of living afforded to theaverage citizens withinasociety.27 Thusit is inevitablethatpoverty continues to have a growing impact on society which is reflected in the crime rates and consequently, children’s ability to understand right from wrong. Moreover, “poor urban areas foster a 'cycle of violence and despair' among young black men, and 'a

26 Tim Boekhout van Solinge and Jeanette Roberts(tr), ‘Ganja in Jamaica’ (Research Gateway, 15 May 2016). <https://www.researchgate.net/publication/254753401_Ganja_in_Jamaica> accessed 12th April 2019.

27 Christine Barrow and Rhoda Reddock (eds), Caribbean Sociology: Introductory Readings, (1st edn Ian Randle Publishers, 2001) 224.

look, a bump or a glance leads to extreme violence.”28 This further emphasises the impact financial circumstances can have on children’s ability to precisely discern what is right from wrong.

Alternatively, wealth and affluence have significant effects on children’s ability to appreciate right from wrong as showcased in the revolutionary “Affluenza case”. Here, council for the defendant successfully argued, based on a psychological examination of the defendant, that “the teenager received whatever he asked for as a child and was constantly rewarded with gifts, wreaking havoc on his ability to perceive the consequences of his actions.”29 Therefore, the financial status quo which a child is exposed to can have lasting effects on their cognitive development.

d. Cultural Factors:

It is established that criminal behaviour is learnt behaviour.30 Therefore, it is paramounttoidentifythosefactorswhichconstitutesanindirectteacherofthisform of behaviour. Thus, in the Caribbean, culture diversity may fall into this category. For example, in high-crime society’s where a sub-culture of violence exists, this constant exposure to violent behaviour can cause children to develop an aggressive personality. Resulting in them acting with aggression at the forefront rather than reasoning whether their actions are legal. This is especially exhibited in countries such as Jamaica and Trinidad & Tobago where the crime rates of juvenile offenders are constantly on the rise.

SECTION III: A WORKING SOLUTION

V. A COMPARATIVE ANALYSIS OF THE VARYING ACR ACROSS THE REGION AND THE STATUTES ESTABLISHING THIS AGE)

The sample in this analysis includes Guyana, Jamaica, Trinidad and Tobago and Barbados. The relevance ofthese fourcountries selected, comprisesthe fact that Trinidad has the lowest ACR within the region, Barbados is the only country with 11 as the ACR.

28 Demetra L. Liggins, ‘Urban Survival Syndrome: Novel Concept or Recognized Defense?’, 219 < http://myelearning.cavehill.uwi.edu/pluginfile.php/1015676/mod_resource/content/1/Urban_Survival_Syndrom e.pdf.> accessed March 30, 2018.

29 Alex Horton, ‘Affluenza’ drunk driver who killed four now free after serving two years’ (The Washington Post, 2 April 2018) 2 < https://www.washingtonpost.com/news/post-nation/wp/2018/04/02/affluenza-drunkdriver-who-killed-four-now-free-after-serving-two-years/?utm_term=.96e8e525a211 > accessed 30 March 2019.

30 Ron Boostrom, ‘Enduring Issues in Criminology’ (1st edn, Greenhaven Press, 1995) 160.

Jamaica has the regionally accepted age as the ACR and lastly, Guyana, which has the highest ACR across the region.

a. What are the ACR across the Caribbean?

Guyana:

Section 4(1) of the Juvenile Justice Bill 2018: “It shall be presumed that no child under the age of fourteen shall be capable of or guilty of committing an offence.”31

Jamaica:

Section 3 of the Juveniles Act: “It shall be conclusively presumed that no child under the age of twelve years can be guilty of any offence.”32

Trinidad and Tobago:

Trinidad and Tobago currently follow the old English common law age of 7 which England departed from in 1933.33

Barbados:

Section 7 of the Juvenile Offenders Act: “Sections 8 and 9 shall not render punishable for an offence any child who is not, in the opinion of the court, above the age of 11 years and of sufficient capacity to commit a crime.”34

b. What Has Been the History of Young Offenders Within the Region?

The UNDP Caribbean Human Development Report (HDR) 2012, was the first ever UNDP HDR on the Caribbean. The report voiced alarms concerning the rise of youth violence in the Caribbean, where over sixty percent (60%) of the citizenry is beneath 30 years of age, and from a domestic perspective at least 1 5 of the population is between 12-25 years old. Further, it highlights the negative impact

31 The Juvenile Justice Bill 2018, s. 4 ss 1.

32 The Juveniles Act 1951 Cap. 189, s 3.

33 Juvenile Justice in The Caribbean - A Rights Approach to Children in the Juvenile Justice page 4

Systemhttps://www.unicef.org/easterncaribbean/spmapping/Legal/Subregional/CP/Synthesis%20of%20Studies_ JJCaribbean_1997.doc

34 Juvenile Offenders Act 1932 Cap. 138, s 7.

this violence is having on direct and indirect socio-political and economic expenses for society and CARICOM governments.35 Guyana:

Fordecades Guyanahasfacedachallenging, somewhatirrepressibletrendofcrime. Given the rising crime rates in Guyana, the University of Guyana held the 8th Turkeyen and Tain Talks in 2017 themed, “Youth, Crime and Violence.”36 The onset of criminality averaged an age range from late adolescent to early teens. For example, the average age of onset for assault or robbery with threat of force is 12. While theft without force, stealing, trafficking and selling drugs have an average onset of 13 years old and car theft onset on averages at age 14.37

A study to determine the link between drugs and crime amongst youth offenders was conducted in light of the intensifying juvenile delinquency and the growing numbers of students being sentenced to the New Opportunities Corps and awaiting trial in jail in Guyana.38 Many youth offenders attest to having had their first encounter with alcohol or drugs at 14-years-old. 39

In sum, psychopharmacological connections between juvenile delinquency and drug use cannot be ruled out. Insofar as there remains evidence of the commission of crime by minors for habitual economic reasons, notwithstanding the systemic exhibitions of drug use and crime exists between the ages of 10 to 14.40

35 CARICOM, Forum on Youth Crime and Violence Youth Crime and Violence - Breaking the Cycle: Exploring New Platforms for Transformation (CARICOM, September 2015)

36 Turkeyen & Tain Talks 8 Youth, Crime & Violence Renaissance (The University of Guyana, July-August, 2017) 29 < https://www.uog.edu.gy/sites/default/files/attachments/JulyAugust%20Renaissance%20Newsletter.pdf> (accessed April 7th 2019).

37 Magda Fiona Griffith-Wills, Study on Alcohol and Drugs in the Young Offender Population Within the New Opportunity Corps: Guyana (OAS, 2010) 5. <http://www.cicad.oas.org/oid/pubs/Final%20Report%20%20Young%20offenders%20in%20Guyana.pdf> accessed 7th April 2019.

38 Magda Fiona Griffith-Wills, Study on Alcohol and Drugs in the Young Offender Population Within the New Opportunity Corps: Guyana (OAS, 2010) 7. <http://www.cicad.oas.org/oid/pubs/Final%20Report%20%20Young%20offenders%20in%20Guyana.pdf> accessed 7th April 2019.

39 Magda Fiona Griffith-Wills, Study on Alcohol and Drugs in the Young Offender Population Within the New Opportunity Corps: Guyana (OAS, 2010) 15. <http://www.cicad.oas.org/oid/pubs/Final%20Report%20%20Young%20offenders%20in%20Guyana.pdf> accessed 7th April 2019.

40 Magda Fiona Griffith-Wills, Study on Alcohol and Drugs in the Young Offender Population Within the New Opportunity Corps: Guyana (OAS, 2010) 25. <http://www.cicad.oas.org/oid/pubs/Final%20Report%20%20Young%20offenders%20in%20Guyana.pdf> accessed 7th April 2019.

Jamaica:

In Jamaica, violent behaviour is observed in children from early childhood which progresses until reaching a peak before the ages of 21 to 25 years.41 During this time, adolescents are more liable to enter gangs, engage in dangerous and violent activities, essentially providing a sample selection for these gangs.42 A UNICEF Jamaican outreach project for juvenile offenders delivered that; Children enter society as blank slates; their outputs are the product of our inputs. Children who are in conflict with the law, most of them for non-violent offences, oftentimes reflect the impact of various deprivations that exist in the larger society. Children also have various experiences as they develop, including psycho-social disorders that we label as juvenile delinquency.43

Trinidad and Tobago:

Gang related violence has been prevalent within the island from time immemorial. A gang being referred to as, “any durable, street-oriented youth group whose involvement in illegal activity is part of their group identity.”44 All of the reviewed gangs in Trinidad are male dominated, with membership rates consisting of approximately13%minors.However,only5.3%ofthemembersinthesampleused were below the age of 17 years.45

A study conducted in Trinidad with a sample of 2,206 students with an average age of15-years revealedthat 6.2%ofstudents weregang members,6.8%were previous gang members and 7.7% were gang acquaintances.46 Therefore, it can be deduced that gangs use child members specifically those below the ACR to carry out certain

41 Wendy Cunningham et al, Youth at Risk in Latin America and the Caribbean: Understanding the Causes, Realising the Potential, (The World bank, 2008) 26.

42 Anthony Harriott, Organised Crime and Politics in Jamaica: Breaking the News, (Canoe Press, 2008) 43.

43 Ross Sheil, ‘Looking out for children in the Jamaican justice system’ (UNICEF, 18 August 2017)

<https://blogs.unicef.org/jamaica/jamaican-children-justice-system/> accessed 7th April 2019.

44 Anthony Harriott and Charles M. Katz (eds), Gangs in the Caribbean: Responses of State and Society, (The University of the West Indies Press, 2015) 95.

45 Anthony Harriott and Charles M. Katz (eds), Gangs in the Caribbean: Responses of State and Society, (The University of the West Indies Press, 2015) 96.

46 Anthony Harriott and Charles M. Katz (eds), Gangs in the Caribbean: Responses of State and Society, (The University of the West Indies Press, 2015) 109.

illegal transactions knowing that if caught, they would not be held legally accountable for the crime.

Barbados:

Majority of the legislation overseeing the administration of juvenile justice should be addressed with high levels of priority due to numerous disturbing aspects of the law. Consequently, the Juvenile Offenders Act47 and others depicts the archaic perspective of the law, some of these concerns exists on a regional and international platform whereas others, contrary to international standards, are more geared towards the island and the well-being of children in Barbados.48

In Barbados, patterns developing in youth violence, include a distinct gender element, seen amongst the youngest of offenders. Males have always tended to be the aggressors of offences rather than the victims in Barbados which is proven to be linked to a machismo-oriented tradition of conflict resolution through violence. While younger males are more likely to commit less serious offenses compared to older boys, they commit them more frequently.49 There has also been increasing school violence, regarding both incidents rates and brutality, due to self-defence and protection of themselves or peers. Peer pressure, the fear of victimisation and exposure to community violence has also been seen to fuel these violent tendencies amongst Barbadian youth.50 (See Appendix D).

Domestic violence is also one of the most prevalent factors fuelling a rise in youth violence within the island. A description of what constitutes domestic violence can be found in the Barbados Domestic Violence (Protection Orders) Act. The Act stipulates that the children of spouses may apply for relief.51 The statute does not

47 Juvenile Offenders Act 1932 Cap. 138.

48 UNICEF, Situation of Analysis: Justice for Children in Barbados (UNICEF Office for the Eastern Caribbean, 2015) 7. < https://www.unicef.org/easterncaribbean/ECAO_Juvenile_Justice_Bdos.pdf> accessed 3rd April 2019.

49 UNICEF, Situation of Analysis: Justice for Children in Barbados (UNICEF Office for the Eastern Caribbean, 2015) 43. < https://www.unicef.org/easterncaribbean/ECAO_Juvenile_Justice_Bdos.pdf> accessed 3rd April 2019.

50 UNICEF, Situation of Analysis: Justice for Children in Barbados (UNICEF Office for the Eastern Caribbean, 2015) 43. < https://www.unicef.org/easterncaribbean/ECAO_Juvenile_Justice_Bdos.pdf> accessed 3rd April 2019.

51 Corin Bailey, Crime and Violence in Barbados IDB Series on Crime and Violence in the Caribbean, (IDB, June 2016) 23. < file:///C:/Users/My%20Computer/Desktop/research%20paper/Crime-and-Violence-inBarbados-IDB-Series-on-Crime-and-Violence-in-the-Caribbean.pdf> accessed 14th April 2019.

catertopsychological andfinancialabuse52 andso,failstoaddresstheeffects which domestic abuse and financial circumstances can have on a child’s psychological and by extension cognitive development – particularly in discerning what is legal conduct. Akin to other crimes, statistics on gang crime in Barbados is extremely scarce. Notwithstanding, unemployment, poverty, a poor education system, and high levels of community and family violence have a tendency to lead to delinquency and the accepted practice of violence by young men.53

VI. THE ADVANTAGES AND DISADVANTAGES OF THE ACR IN THESE VARYING COUNTRIES

There exists many advantages and disadvantages with respect to the ACR being too low as well as too high. Therefore, apriorityofthe lawmaker is to strike aworkable balance between these difficulties adequately catering to society as evenly as possible.

Extremely low ACR, such as in Trinidad and Tobago (7 years), neither results in lower crime rates, nor do they decrease the threat of adult offenders using children to execute exploits on their behalf.54 Moreover, jail is not a suitable place for childhood development especially at such young ages. Low ACR contradict the entire premise upon which the concept of sentencing is based as everything done must be to the best interest of the child.55 This highlights the need for more diverse rehabilitative centres for youth offenders.

Distinct advantages of higher ACR possessed Guyana are, it is more economically viable to treat these child offenders as juvenile offenders and put them through the proper rehabilitative facilities required, than to place them in prison as an adult offender. Furthermore, treating young offenders as children rather than adult offenders better assist with their reintegration back into society after their sentences

52 Corin Bailey, Crime and Violence in Barbados IDB Series on Crime and Violence in the Caribbean, (IDB, June 2016) 23. < file:///C:/Users/My%20Computer/Desktop/research%20paper/Crime-and-Violence-inBarbados-IDB-Series-on-Crime-and-Violence-in-the-Caribbean.pdf> accessed 14th April 2019.

53 Corin Bailey, Crime and Violence in Barbados IDB Series on Crime and Violence in the Caribbean, (IDB, June 2016) 36. < file:///C:/Users/My%20Computer/Desktop/research%20paper/Crime-and-Violence-inBarbados-IDB-Series-on-Crime-and-Violence-in-the-Caribbean.pdf> accessed 14th April 2019.

54 Child Rights Network and Philippine Action for Youth Offenders, ‘No to lowering the minimum age of criminal responsibility in the Philippines’ (Change.org) <https://www.change.org/p/no-to-lowering-theminimum-age-of-criminal-responsibility-in-the-philippines> accessed 7th April 2019.

55 Child Rights Network and Philippine Action for Youth Offenders, ‘No to lowering the minimum age of criminal responsibility in the Philippines’ (Change.org) <https://www.change.org/p/no-to-lowering-theminimum-age-of-criminal-responsibility-in-the-philippines> accessed 7th April 2019.

have been served, whatever form they maybe.56 Nonetheless, high ACR can create a lacuna, since adult offenders like gang members may use children who are more comprehensive to commands to carry out their illegal activities since the child would not be criminally liable. Therefore, the region has sought to strike a balance with the regionally proposed age of 12 as exhibited in Jamaica as the ACR.57

VII. DATA ANALYSIS: WOULD IT SUBSEQUENTLY BE PLAUSIBLE FOR THE CARIBBEAN TO DEVISE ONE STANDARD ACR ACROSS THE REGION?

In response, there exist two school of thought regarding whether the Caribbean should have one ACR. The first posits that there should not be one ACR for the entire Caribbean due to many differing factors across the region such as diverse social contexts. Many of which were previously addressed as crucial elements which legal draftsmen must keep to the forefront when devising the ACR.

The Caribbean’s position remains a vast arena of diverse cultures, religions, economies, societies with varying crime rates and other factors which are crucial to determining when a childis nolonger ‘doli incapax’. In relation to religion, Guyana for example, is a more pluralistic country and so openly recognises multiple religions and creeds in contract to many other English Commonwealth territories which align themselves with being, “Christian nations”. Moreover, although each territory in the region would be categorised as a developing nation, this nonetheless does not dispute the fact that each island has their own financial burdens to bare. This in turn affects the financial class and status of the citizens which can also in turn affect children’s ability to perceive right from wrong.

Moreover, in assessing the United States position, there exists no minimum ACR across the continent from state to state. However, with respect to federal crimes, there exist an ACR of 11 years.58 Therefore, it can be deduced that insofar as states

56 Sean Smith, ‘The Importance of Raising the Age of Criminal Responsibility’ (ALEC, 13th June 2017) < https://www.alec.org/article/the-importance-of-raising-the-age-of-criminal-responsibility/> accessed 7th April 2019.

57 UNICEF, Situation of Analysis: Justice for Children in Barbados (UNICEF Office for the Eastern Caribbean, 2015) 27. < https://www.unicef.org/easterncaribbean/ECAO_Juvenile_Justice_Bdos.pdf> accessed 3rd April 2019.

58 Daily Chart, ‘The minimum age of criminal responsibility continues to divide opinion’ (The Economist, 15th March 2017) < https://www.economist.com/graphic-detail/2017/03/15/the-minimum-age-of-criminalresponsibility-continues-to-divide-opinion> accessed 7th April, 2019.

which are physically connected do not see the need for one ACR but more so the importance of having individual standards on a state-by-state basis. This reasoning can also be transferred to the Caribbean in that steps can be made towards regional unity without necessarily the need of legal harmonization at domestic levels.

Alternatively, it is asserted that there should be one ACR in alignment with the goal thatallnewlyenactedlawsandtheiramendmentsaretobeharmoniouslyin keeping withtheprinciples oftheConventionontheRightsoftheChild(CRC).59 Therefore, this should be mirrored across the region. Additionally, the fact that there should be simultaneous, comprehensive review of all legislative frameworks for children when considering the creation of a protective environment. All legislation across the region should complement each other to work together for the benefit of the children.60

VIII. RECOMMENDED LAW REFORM IN ASSESSING WHEN A CHILD IS NO LONGER ‘DOLI INCAPAX’

After a more comprehensive understanding of children has been established, the weaknesses within existing legislation boldly present themselves, echoing the need for serious law reform.61 Notwithstanding the need for legal reform for the ACR, legal draftsmen must appreciate and acknowledge that the age should not be lowered drastically. As it can lead to lacunas in the law, the main priority is to strike a balance between what currently exists and has proven to be effective, and those remedies needed to remedy pre-existing flaws.

As many of the previous factors relevant when devising the ACR are currently used as criminal defences, such as “Affluenza” and “Urban Survival Syndrome”, it is crucial to detect and place corrective measures in place before crimes are committed. To this end, governments should seek to implement more diverse forms

59 Patricia Lim Ah Ken, Children without parental care in the Caribbean Systems of protection, (UNICEF, November 2007) 30. <

https://www.unicef.org/easterncaribbean/cao_resources_children_without_parental_care.pdf> accessed 7th April 2019.

60 Patricia Lim Ah Ken, Children without parental care in the Caribbean Systems of protection, (UNICEF, November 2007) 30. <

https://www.unicef.org/easterncaribbean/cao_resources_children_without_parental_care.pdf> accessed 7th April 2019.

61 Wendy Cunningham et al, Youth at Risk in Latin America and the Caribbean: Understanding the Causes, Realizing the Potential, (The World bank, 2008) 28.

of sentencing and rehabilitative centres for youth offenders and children displaying behaviour which could lead to future offending.

In assessing the current law and formulating plausible methods of reform, legislators can look towards the Gillick competence test in assessing when a child can be considered no longer ‘doli incapax’ This test was espoused in Gillick62 wheretheHouseofLords held, achildbelowtheageof16canbelegally competent to consent to medical treatment where it can be proven that the child was sufficiently mature and possessed the necessary intelligence to comprehend the natureandrepercussionsofthetreatment.63 Consequently,theunderlyingprinciples upon which this test was formed, can be transplanted with respect to deciding whether a child is no longer ‘doli incapax’. Thus, it would be considered whether the child was of the necessary maturity and sustained adequate intelligence to comprehend the nature and repercussions of their actions.

To this note, a proposed two-pronged test with both an objective and subjective element would seek to remedy the flaws within the pre-existing law regarding the ACR. This test shall be effective in determining whether a child is no longer ‘doli incapax’ irrespective of whether the entire Caribbean unified to have one ACR or not. This test consists of:

a. The objective element: whether the accused was above the age of 12.

Why the age of 12 years?

Insofar as 12 is the regionally accepted ACR, it would be most suitable as the base age used within the legal test as the threshold from which a child can be held criminally liable for an offense. It also remains crucial not to have the threshold too low, to guard against the lacunas associated with low ACR as previously mentioned. Further, 10 is the age at which the most significant cognitive development commences until the age of 1964, twelve as the threshold would provide for two years’ worth of development after commencement. From here, the

62 Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7, [1986] AC 112, [1986] 1 FLR 229.

63 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 as cited by Richard Griffith, ‘What is Gillick competence?’ (PMC, 30th November 2015)

<https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4962726/#cit0005> accessed 7th April 2019.

64 Houses of Parliament, ‘The Age of Criminal Responsibility’, (PostNote, 2018) 2 < researchbriefings.files.parliament.uk/documents/POST-PN-0577/POST-PN-0577.pdf> accessed 31st March 2019.

court would then transition into the subjective element which seeks to cater to those factors which are relevant, yet unaccounted for in the objective element.

b. The subjective element: whether a child of the same mental and physical characteristics of the accused would have acted in the same manner under the same circumstances.

The subjective element of the test would allow for flexibility where need be and preventthelawfrombeingpartialinsofarasitwouldcaterfairlytoallminorstaking intoaccountfactorswhichmayaltertheaccusedabilitytodiscernrightfromwrong. Additionally, the Assistant Police Commissioner, Donovan Graham, in Montego Bay, Jamaica has identified a challenging problem which the nation struggles with. That being the alarming number of children, specifically 1400 children, between the ages of 12 to 18 years who were arrested over the course of 2015 – 2017.65 Moreover, as it is understood that majority of a child’s cognitive development occurs between the ages of 10 to 19 years. It can be deduced that the standards under which these child offenders were prosecuted did not adequately cater to their inability to appreciate both right from wrong, the gravity of their actions and the effects on others in some instances.

However, with the subjective element, rather than these children being thoughtlessly convicted of offenses, the law would more adequately assess the child’s element of fault and so, administer fairer forms of justice. Furthermore, where a child over the age of 12 and below the age of 18 is arrested for an offense, in addition to assessing whether the child understands the concept of right from wrong, the child can be evaluated to determine whether any of the factors relevant to devising the ACR are present with regards to the accused. Thus, where it can be proven that the child did in fact lack the element of fault for a specific offense rather than being incarcerated as the current position of the law would conclude, the child can be placed within the appropriate rehabilitative facilities necessary to aid in their developmental process and give them a better understanding of what is legally just.

As established, incarceration does not assist fully in readjusting these child offenders back into society however, ‘letting them walk free’ is neither a solution

65 Horace Hines,’ Child criminals’ (Jamaica Observer, 14th October, 2017) < http://www.jamaicaobserver.com/news/child-criminals-police-arrest-1-400-children-for-serious-crimes-in-lasttwo-years_113911?profile=1373> accessed 13th April, 2019.

to the betterment of society or more importantly, to the wellbeing of the child. In the case of a child subject to domestic violence for example, a viable option rather than imprisonment would be to remove the child from that harmful environment and place him/her in a facility which would cater to their psychological needs.

IX. CONCLUSION

Summarily, the ACR has been established to be the age at which a child is capable to being held legally accountable for the commission of an offense. When assessing this age, legal draftsmen must pay close attention to certain relevant and crucial factors such as psychological factors including, family and peer influence and biological factors namely, genetically inhabited behavioural traits. As well as social factors such as high-crime societies and their effects on children, in addition to economic circumstances which may lead to ‘affluenza’ and ‘urban survival syndrome’. Subsequent legislative comparison highlighted the many loopholes within the law across the region which stressed the need for urgent law reform.

To this end, the legal two-pronged test proposed would adequately remedy these deficiencies in the law. Which as fore-mentioned, encompasses both an objective and subjective element treating with, 1) the legal age of the child at the commission of the offence and, 2) the mental and physical characteristics of the child and whether a child of the same attributes would have reacted in a like manner, respectively. Moreover, it reveals to the reader the dangers of a single blanket approach to assessing criminality amongst youth offenders in the Caribbean when considering the subjective social and economic diaspora across the region. Therefore, lending aid to a school of thought which strays away from the single objective criteria of one ACR for the entire Caribbean, but rather integrates a subjective element that caters to those unique occurrences which may arise on a case-by-case basis. Lastly, such a test aims to address and correct the current inadequacies of the law regarding the ACR to the betterment of society while catering to the welfare of such child offenders.

X.

Source: Adapted from Caribbean Human Development Report: Human Development and the Shift to Better Citizen Security, 2002.

ii. Appendix B: Homicide Rates Per 100,000 Population, Caribbean-7, 1990–2010

Source: Adapted from Caribbean Human Development Report: Human Development and the Shift to Better Citizen Security, 2002. Page 21.

iii. Appendix C: Distribution by Age of Those Arrested for Criminal Activity in Jamaica

Source: Adapted from Wendy Cunningham et al, Youth at Risk in Latin America and the Caribbean: Understanding the Causes, Realising the Potential, (The World bank, 2008) 28.

iv. Appendix D: Youth Violence Patterns in Barbados

Source: Adapted from UNICEF, Situation of Analysis: Justice for Children in Barbados

(UNICEF Office for the Eastern Caribbean, 2015) 43.

<https://www.unicef.org/easterncaribbean/ECAO> accessed 3rd April 2019.

Medical Ethics: The Moral and Legal Considerations which Influence Informed Consent, Euthanasia, and Abortion

Tatiana Walters*

I. INTRODUCTION

The medical field is one of many long-standing fields, which conflicts with traditionalists views of law and morality. Moral problems are multifarious, manifesting in discrete manners but remaining retrogressive to human relationship and social coexistence, regardless of the way it surfaces. Morals refer to values, principles, behavioural standards that society creates and enforces. On the other hand, law is essentially a set of rules and principles created and enforced by the state. Law and morality are complementary to each other. Ideal citizens reflect an ideal state. A state can only be considered ideal when it operates through the ideal laws of morality. Law and morality share some similarities, but there are areas where they diverge. This leads us to the question: Is the right to bodily integrity to Divine Will?

A professional must, in following his/her calling, exhibit the same degree of skill and possess the same level of knowledge as is generally expected of that profession. Should s/he fall below this standard of care s/he will be liable in negligence for the loss which resulted from such lack of care.1

The doctrine of consent focuses on whether a patient has the legal right to know and is the doctor under a legal duty to disclose the risks inherent in the treatment which the doctor recommends. There is much debate on whether a patient suffering from an incurable ailment or a patient who does not consider his/her existence to be

* This paper was written during my second year of my L.L.B at The University of the West Indies Cave Hill Campus.

1 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582: Bolam Test.

purposeful, has the right to terminate or to request a doctor to terminate his or her life. Lastly, abortion addresses whether the interest of public health, social justice and human rights are reflected by the legislation in the jurisdiction.

This paper will seek to address the moral and legal considerations that influence and affect medical ethics as it relates to informed consent, euthanasia and abortion. As the concerns are typically torn between religious or cultural factors, these will also be assessed under each issue. These three areas can be considered the most controversial issues that arise in the medical field: also having an effect on the populous in varying societies. As was found throughout the research process, there is little legal framework in the Commonwealth Caribbean Island of Barbados. This paper will provide a road map and possibly a starting point for the development of the island’s own legislation on medical ethics. It will also shed light on the background of current legislation as it relates to the aforementioned influences, providing evidence of why there should be some convergence between law and morality, however, not so much as to infringe on the privacy and autonomy of private citizens.

II. CONSENT

The doctrine of consent focuses on whether a patient has the legal right to know and is the doctor under a legal duty to disclose the risks inherent in the treatment which the doctor recommends. If the law recognizes an obligation and a right, is it a right to full disclosure? Or does the doctor have a discretion as to the nature and extent of his/her disclosure? This right to self-determination has been developed in some jurisdictions in the United States of America and has found favour with the Supreme Court of Canada. The doctrine amounts to this: where there is a ‘real’ or ‘material’ risk inherent in the proposed operation however skilfully performed, the question whether and to what extent a patient should be warned before s/he gives his/her consent is to be answered not by reference to medical practice, but accepted as a matter of law, subject to all proper exceptions. A patient has the right to be informed of risks inherent in the treatment which is proposed.

The landmark case which illustrates the American position is Canterbury v. Spence.2 The Court enunciated four propositions:

(1) The root premise is the concept that every human being of adult years and sound mind has a right to determine what shall be done with his/her own body;

(2) Consent is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgably the options available and the risk attendant on each;

(3) The doctor must, therefore, disclose all ‘material risks. What is material risk is determined by the prudent patient test which was formulated by the court in this way: “… it is… material when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy”.

(4) The doctor has, however, what the court calls ‘therapeutic privilege’. This exception enables a doctor to withhold from his/her patient information as to risk if it can be shown that a reasonable medical assessment of the patient would have so indicated.

Thedoctrinehas only limitedrecognition in theUnitedStates andCanada.In Reible v. Hughes3 , Laskin CJ expressed the broad approval of the doctrine as enunciated in Canterbury v. Spence (1972), although it seems that the approval of the doctrine was not necessary to the decision in the case.4

The doctrine has been examined by the English Courts in a number of cases, but it has met with very strong disapproval. In Chaterton v. Gerson5, Bristow J examined whether there is any rule in English law comparable to the doctrine of informed consent. He found that a doctor’s duty is to warn his patient of what may happen

2 (464 F.2d. 772, 782 D.C. Cir. 1972).

3 [1980] 2 S.C.R. 880

4 Robertson (1981) describes the position as it was then: The present position in the United States is one of contrast between the minority of States which have chosen to the follow the lead given by Canterbury by adopting the objective prudent patient test … and the majority of the States which have been content to adopt the traditional test and determine the question by applying ‘the reasonable doctor test’

5 [1981] 1 ALL ER 257.

by misfortune, however well the operation may be carried out, if there is a ‘real risk’. He further found that whether or not a warning should have been given depends on what a reasonable doctor would have done in the circumstances; he thereforeapplied the Bolam test6 to determinethereasonableness ofwhat thedoctor did.

The doctrine is further scrutinized in Hill v. Potter7 where Hurst J discussed the doctrine, but he dismissed it because it was not applicable in English law. The doctrine met with the same fate in Freeman v. Home Office in the Court of Appeal.8

The dicta of Lord Clyde in Hunter v. Hanley9 stated the guiding principle:

In the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion and one man (sic) clearly is not negligent merely because his conclusion differs from that of the other professional men, nor because he has displayed less skill or knowledge than others have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has proved to be guilty of such failure as no doctor of ordinary skills would be guilty of if acting with ordinary care in all the circumstances.

This is simply a reiteration of the traditional Bolam test and adds nothing new to the argument.10 Lord Scarman expressed the view that the merits of the doctrine as enunciated in Canterbury v. Spence is that without excluding medical evidence it sets a standard and formulates a test of the doctor’s duty, the effect of which is that the court determines the scope of the duty and decides whether the doctor has acted in breach of his duty. This result is achieved, first, by emphasis on the patient’s right to self-determination and, second, by the prudent patient test. If the doctor omits to warn, where the risk is such that the courts view a prudent person in the patient’s situation would have regarded it as significant, the doctor is liable.

6 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118.

7 No. 09-1228 (Fed. Cir. 2009)

8 All ER.[1984] 1:1036-45.

9 [1955] SLT 213, [1955] ScotCS CSIH – 2, 1955 SC 200, [1955-95] PNLR 1.

10 The doctrine was tested again, this time in the House of Lords in Sidaway v. Bethlem Royal Hospital Governors [1985] AC 871. Here again the doctrine was roundly rejected by the majority of the Lords. However, it found strong support in the dissenting judgment of Lord Scarman.

The current Bolam test, which was applied by the majority, namely, the doctor was required to act in accordance with the practice accepted at the time as proper by a responsible body of medical opinion, has serious flaws in it. That is the court has abdicated its responsibility to determine what is reasonable conduct pertaining to doctors by permitting the very doctors to determine their own professional standards. The law of natural justice has two principles, one is that each person who is accused of a wrong must be given the opportunity to be heard; the other, and whichisrelevant here,isthatnoman/womancanbejudgeinhis/hercause.Ibelieve the courts, by allowing the doctors to determine whether a member of their profession is negligent or not, has set up the medical profession as the judge in its own cause. This is a breach of the law of natural justice. Jones11 argued that the traditional Bolam test presents an insurmountable barrier to prove medical negligence in either diagnosis or treatment of a patient. A doctor is not even if there isoneresponsiblebodyofmedicalopinionwhichconsidershis/herdiagnosisand/or treatment of the patient to be palpably bad, while another responsible body of medical opinion considers it to be good treatment. It would seem then, that doctors can misdiagnose and administer improper treatment to patients with impunity. As

Laskin CJ puts it in Reible v. Hughes:

To allow expert medical evidence to determine what risks are material and, hence, should be disclosed, and correlatively, what risks are not material is to hand over to the medical profession the entire question of the scope of the duty of disclosure, including the question whether there has been a breach of that duty.

Laskin CJ's position is demonstrated in Bolitho v City and Hackney Health Authority, whereby a doctor must now show that his school of thought can withstand logical analysis. That is, he must justify why he choose to follow to one body of medical opinion rather than the other.12

The summary conclusion of the doctrine is that the law must recognize a duty in the doctor to warn patients of risk inherent in the treatment which s/he is proposing;

and especially so if the treatment is surgery.13 The critical limitation is that the duty is confined to material risks. The test of materiality is whether the court is satisfied in the circumstances of the particular case that a reasonable person in the patient’s position would be likely to attach significance to the risks. Even if the risks be material, the doctor will not be liable if on a reasonable assessment of his/her patient’s condition s/he takes the view that a warning would be detrimental to her/his patient’s health.14

The Bolam test is normally followed in the Caribbean because the jurisdictions in theCommonwealthCaribbeanhaveaninherent colonialtendencyto followEnglish precedents mutatis mutandis to the detriment of the evolution of Commonwealth Caribbean jurisprudence. The Bolam test is found cited with approval by the Honourable Mr. Justice Nelson in the Caribbean Court of Justice, the final Appellate Court for Barbados in Raju Meenavalli v. Georgia Matute and Janae Matute.15

This is all the more concerning because English precedents are only persuasive as opposed to binding on the Commonwealth Caribbean. Nothing short of a revolutionary approach to the interpretation of law can sustain the flowering of Commonwealth Caribbean jurisprudence.

The prima facie cause of action in a case of surgery is trespass to the person in the form of battery, unless an informed consent is given by the patient to the operation. That being the case, Iam inclined to respectfully disagree with Hurst J when he said in Hills v. Potter: “It would be deplorable to base the law in medical cases of this kind in the tort of assault and battery”. The learned Judge must show with convincing evidence the justification of such a broad statement. If the cause of

13 The doctrine was formulated on two main limbs: vis-à-vis the reasonable prudent patient test – what would a reasonable prudent patient consider significant in the situation of this patient (the objective test). Since the prudent patient is a norm like the woman/man on the Transport Board bus, s/he cannot always provide the answer. Hence, the second limb: the doctor should have the opportunity of proving that s/he reasonably believed that disclosure of the risk would be damaging to his/her patient or contrary to his/her interest – the doctor’s therapeutic privilege test. It is actually a defence that is available to the doctor, which if s/he invokes, s/he must prove. With both tests and the defence, medical evidence is of paramount importance.

14 According to the Bolam test, the doctor is not obligated to disclose all material risks inherent in the proposed treatment, provided that s/he is following the standard of a respectable and reasonable body of medical profession. This was the salient issue in Sidaway’s case. To apply the doctrine of informed consent would oust the Bolam test from the law and their Lordships were not prepared to do that. The issue for the Caribbean Court of Justice is whether it is going to follow in a slavocratic manner the position taken by the House of Lords as though it is etched in stone.

15 CCJ Appeal No CV 4 of 2012, [34].

action cannot be framed in battery, then under which head of the law should such an action be brought? It is my considered opinion that the doctrine of informed consent can be adequately accommodated under battery just as it is usually done in trespass to the person. I believe the cause of action so framed would serve the Commonwealth Caribbean very well indeed.16

It is argued that in any case most patients are aware that there is some risk involved in medical treatment, especially surgery. The doctrine here is concerned with volunteering information about risks of the proposed treatment failing to achieve the result sought or making the patient’s physical or mental condition worse rather than better. The only effect that mentioning risk can have on the patient’s mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor, it is in the patient’s best interest to undergo. Undoubtedly, the doctor would have made his determination as to the best course of treatment, and there is the possibility that the patient may reject it.

However, I do not subscribe to the view that this is sufficient reason for the doctor to unilaterally decide what information to divulge to the patient and what information to withhold from the patient. I strongly believe that the patient has a right to a full knowledge of his/her medical condition and the proposed course of treatment. However, I would accept that, if in the circumstances, in the doctor’s judgment the information will so overwhelm the patient that it would have a profound negative impact on him/her, then perhaps the doctor may withhold the information from the patient.

It follows therefore, in the previous law, a patient is hardly in a position to claim that a doctor was negligent in failing to inform him/her of the inherent risks, provided that the doctor conformed to the practice of his peers. That being the case, I am obliged to hold opinion with Lord Scarman, who said in his dissenting

16 Sidaway’s case: Lord Diplock points out that the Supreme Court of Canada rejected trespass to the person. That is, battery, as the cause of action in surgery, but endeavoured to transfer the concept of informed consent to a patient’s cause of action in negligence, into which all aspects of it simply cannot be placed. Consent to battery is a state of mind that is personal to the victim of battery and any information required to make his/her consent qualify as informed must be relevant information either actually possess by him/her, or which s/he is estopped from deny s/he possessed because s/he acted in such a way towards the defendant (doctor) as to lead the latter reasonablytoassume therelevantinformationwas known tohim/her(thepatient).Suppose thedoctor did not act negligently but with proper care and skill removed the patient’s inflamed appendix in a situation where the patient had given consent to an operation for gall stone removal? A cause of action in negligence would fail miserably, but a cause of action for battery would succeed.

judgment that the law must recognize a duty in the doctor to warn his patient of the risk inherent in the treatment which he is proposing; and especially so if the treatment is surgery.17

The courts have since retreated from the Bolam principle as indicated above in relation to diagnosis and treatment, and they now advocated the principle of “informed Consent” approach of the United States.18 This principle has now been adopted in other Commonwealth jurisdictions of Canada,19 Australia,20 et al. The erosion of the Bolam-Sidaway Approach is seen in the decisions in the cases of Bolitho v. City and Hackney Health Authority,21 Pearce and another v. United Bristol Healthcare NHS Trust,22 Chester v Afshar,23 Montgomery v Lanarkshire HealthBoard. 24

The informed Consent Principle has been adjudicated and adopted in the Commonwealth Caribbean in Trinidad & Tobago in the decision of Karen Tesheira (The Executrix of the Estate of Russell Tesheira) v. Gulf View Medical Centre Ltd and Cristen Jendra Roopchand,25 and in Barbados in the decision of Boyce v. Lorde and Another.26

It is anessential requirement ofthelawofinformed thatthedoctorwarnsthe patient of any “material risk” that is inherent in the treatment or procedure. The law defines material risk as either a risk to which a reasonable person in the position of the patientwouldbelikelyto attachsignificanceorariskthatadoctorknows(orshould reasonably know) would probably be deemed significant by “this particular patient”. The focus on “this particular patient” is key because what may be material to one patient may not be material to another, for examples: eye surgeon, concert pianist. Therefore, it is imperative that the patient should be counselled on the risk, thebenefits,alternative(includingdoingnothingabouthis/hercondition).Oncethis procedure is followed the clinician bears no liability if there is an adverse outcome.

17 Sidaway v. Bethlem Royal Hospital Governors [1985] AC 871

18Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972).

19Reibl v. Hughes [1980] 2 S.C.R. 880.

20Rogers v Whittaker (1992) 16 BMLR 148.

21[198] AC 232; [1997] 4 All ER 771.

22(1999) 48 BMLR 118.

23[2004] 4 All ER 587.

24 [2015] UKSC 11; [2015] 2 WLR 768.

25Claim No. CV2009-02051

26 [2012] 3 LRC 167.

The proliferation of medical malpractice suits in the United States has led some courts and legislatures to curtail or even reject the operation of the doctrine in an endeavour to restrict the liability and to discourage the practice of ‘defensive medicine’ 27 I do not think that this approach by both the legislature and medical men/women is the best way to deal with the problem. Defensive medicine can be dealt with through legislation or even at common law because there is still the doctor’s duty to do what is in the best interest of his/her patient. Providing fake diagnosis and treatment is just as wrong as misdiagnosis and palpably bad treatment. Both the legislature and the medical professional must take their duty seriously. I believe that where there are inherent material risks, the doctor should inform the patient and let him/her decide and where applicable obtain his/her written consent or that of the next of kin. The doctor, having fully informed the patient, can then put in a disclaimer to protect him/herself from any subsequent unreasonable litigation – the Hedley Byrne disclaimer28. I say unreasonable subsequent litigation because I must bear in mind that there are statutory prohibitions against excluding liability for personal injury and death.

The danger of defensive medicine being practiced in the Caribbean clearly exists, but this coupled with the fact that the countries in which the doctrine originated does not universally accept it, in fact only a small minority of states in the US has implemented it. This makes it unlikely that the flood gates would be opened. Furthermore, some countries have taken steps not only to restrict the application of the doctrine of informed consent but to root it out altogether However, as I have argued above, I do not believe that it makes logical or juristic sense that the Caribbean jurisdictions should outlaw a doctrine which seems to be crucial to a patient’s constitutional rights. Furthermore, it does not necessarily follow inexorably, that the practice of the doctrine of informed consent in the Caribbean will have the same negative impact as it has in the United States of America. It would seem to me to be a fundamental constitutional right which should not be

27 Defensive medicine can be described as a method to reduce the risk of malpractice litigation, typically through the excessive diagnostic testing. It is the practice of doctors advising and undertaking the treatment which they think is legally safe even though they may believe that it is not in the best in interest of the patient.

28 Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465 (HL). To protect themselves, Hedley Byrne asked their bankers to obtain a credit reference from Heller & Partners), the client’s bankers. The court held that this disclaimer was sufficient to protect them from liability and the claim failed.

abrogated, abridged, or otherwise manipulated either by the legislature or the judiciary.

III. EUTHANASIA

There is much debate on whether a patient suffering from an incurable ailment or a patient who does not consider his/her existence to be purposeful, has the right to terminate or to request a doctor to terminate his or her life. Euthanasia literally means death without suffering. The word is now generally restricted to mean “mercykilling.”29 It isthedeliberateanddirectkillingofasufferingperson,through the administration or omission of treatment, specifically to terminate the life of the sufferer.

a. Moral Considerations

Euthanasia createsserious moral andlegal issues todaybecause of the advancement of modern medicine. Whereas in previous times, it was a matter of letting nature run its course. The question today is not whether we should prolong life under any and every condition. Doctors and nurses have at their disposal a wide range of analgesic drugs which, when selectively used, can and do ease the pain of death. So, killing a patient is not the only way to relieve suffering.

The essential issue is based on two grounds: whether the doctor should be permitted to kill the patient at his request due to excessive illness and the fact that the patient is terminally ill or that he cannot live an economically productive life. The second is whether doctors should be authorized to terminate the life of patients who are terminally ill or patients who live a ‘vegetative’ existence and cannot be reinserted into the economic process.

In considering the mercy killing of patients, spheres of law and morality must be distinguished, although it is evident that to some extent they overlap. Theories which identify a moral law prohibiting killing of the innocent, but not judicial killing of convicted murderers or killing in a just war, place mercy killing in the same moral category as murder. It seems that it ought to be morally permissible for

29 Mercy killing must be distinguished from “mercy killing” as practiced by Hitler the premeditated and large scale planned extermination of the socially and economically unfit persons, especially the mentally sick and crippled who might impede economic progress and the millions of “undesired” Jews. This is the kind of euthanasia which is based on a principle of utilitarian philosophy which the world must forever condemn.

one to request the termination of one’s life under circumstances where one is suffering from excruciating pain and without any hope of recovery. A better justification for moral repudiation of voluntary euthanasia would be the fact that under the circumstances, it may be extremely difficult for the doctor to know exactly what the wish of the patient is. The doctor must be clear as to the patient’s motive. It is the doctor’s responsibility to know why the patient wishes to die sooner, and to serve the patient’s interest by going to the root of his wishes.

A society which accepts euthanasia will also affect the common trust which members of the society have in their doctors; that is, the essential public confidence that doctors and nurses as servants of our health and well-being become our executioner.

In both Christianity andJudaism humanlifeis sacred. InChristianityevery moment of life is infinitely precious and has therefore an inviolable claim to protection. However, there are exceptional situations to this absolute claim to inviolability. For example, while Genesis 20:13 forbids murder, the same book also enjoined capital punishment for certain crimes. The Constitution also protects the right to life as a fundamental right, except where the death penalty is decreed by the court or during war. The United Nations Declaration of Human Rights30 also advocates the inviolability of the human person. The principle when properly used asserts a human right to enjoy protection in life and bodily integrity; that right may be violated only with just cause approved by the general moral sense and public authority. Euthanasia does not qualify as an instance of such a cause.

The ethical question remains: is the premeditated omission or administration of treatmentswiththedirect intentionnottoprolongtheprocessofdyingmorallygood or not? It is imperative that the medical profession take a strong stand in view of the increasing number of those who are in favour of involuntary euthanasia. Physicians should be the first to mobilize public opinion because they can fully visualize how their whole relationship to the sick would be changed if involuntary euthanasia becomes institutionalized.

30 Universal Declaration of Human Rights (1948).

b. Legal Considerations

In the case of R v. Cox31 , law and morality come into play where doctors who kill may be considered murderers – a double effect. The defendant, a general practitioner,injected alethal doseofpotassium chlorideintohis patient who shortly afterwards died comparatively peacefully The victim was an elderly lady, terminally ill and in constant severe pain. With the knowledge and approval of her family, she asked the defendant to end her suffering by hastening her death.

It was held that the defendant could not be charged with murder, because B had been cremated before any suspicion arose and the cause of her death could not conclusively be proved. However, the jury found him guilty of attempted murder and the judge passed a suspended prison sentence.

In NHS Trust v Bland32 the issue arising was whether withdrawal of artificial feeding could be considered lawful. The patient was in persistent vegetative state and life was maintained by artificial feeding. Tony Bland, seriously injured in the Hillsborough disaster, was being kept alive only by extensive medical care (not a life-support machine). He had survived for three years in a persistent vegetative state.Hecontinuedtobreathenormallybutwaskeptaliveonlybybeingfedthrough tubes. He had no chance of recovery; his doctors (with the support of his family) sought a declaration from the court that it would be lawful for them to discontinue treatment so that he might die peacefully. It was held that treatment could properly be withdrawn in such circumstances, because the best interests of the patient did not involve him being kept alive at all costs. In this case feeding him was treatment and that treatment would not cure him and therefore was not in his best interests. It was lawful for the defendant’s doctors to stop feeding him artificially.33

It is in the best interests of a patient to be allowed to die but in such circumstances, the consent of the Court must be obtained first. In Frenchay Healthcare NHS Trust v S,34 the defendant, S was in a coma following a drug overdose. When the feeding tube became detached, the consultant recommended to do nothing. It was held that

31 [1992] 12 BMLR 38

32 [1993] AC 789

33 See also Frenchay Healthcare National Health Service Trust v. S [1994]. Similar issues can arise in respect of the very elderly or in respect of babies born with very severe mental or physical handicaps, especially where major (and possibly repeated) surgery would be needed to keep them alive see R J [1991].

34 [1994] 2 All ER 403.

there was no reason to question the conclusion of the consultant, who considered it in the best interest of the patient not to operate to replace the tube. S was allowed to die.

The well-known case of Pretty v The United Kingdom,35 Diane Pretty was terminally ill with MotorNeurone Disease. She wanted to obtain the right to be able to request medical help to die at a time of her choosing. Particularly, to be given a guarantee that her husband would not be prosecuted for assisting her suicide in an active way. The Court refused permission. The Director of Public Prosecutions did not have the power to give an undertaking that he would not consent to prosecute the husband of a terminally ill woman if he helped his wife to commit suicide. Mrs Pretty died on 11th May 2002, her case received worldwide coverage. She was backed by the Voluntary Euthanasia Society (VES).

In Re B (Consent to Treatment: Capacity)36 the hospital was caring for the applicant Ms B who asserted her common law right as a competent adult to refuse lifesustaining treatment. Ms. B became tetraplegic and suffered complete paralysis from the neck down, but she was able to move her head and speak. She gave formal instructions to the hospital through her solicitors that she wished artificial ventilation to be removed, even though she realised that that would almost certainly result in her death.

The defendant argued "ambivalence", evidenced by the fact that Ms. B had told the doctors that she was glad that effect had not been given to an earlier advance directive. It was also argued that benevolent paternalism or parentalism ('doctor knows best') Dame Elizabeth Butler-Sloss criticised this attitude in trenchant terms.

It was held that since Re T (adult: refusal of medical treatment)37 ruled that a competent adult may refuse medical treatment, even if the likely result will be their own death, and that refusal may be for reasons which are rational, irrational, unknown or non-existent. This right has been confirmed in Airedale NHS Trust v

Bland38 and Re MB (an adult: medical treatment),39 where it can be found further ringing endorsements of the right of a capable person to self-determination. Moreover, there is a presumption of capacity, and it is for those asserting the right to override the patient’s wishes to establish incapacity, rather than for the patient to establish it forherself 40 Ms. B was allowedto die anddid so peacefully some weeks later. In March 2006, the High Court in London ruled against a hospital's bid to turn off the ventilator that kept the child, known as Baby MB, alive. The 19-month-old baby has the genetic condition Spinal muscular atrophy, which leads to almost total paralysis. The parents of the child fought for his right to life, despite claims from medics that the invasive ventilation would cause an 'intolerable life'

IV. ABORTION

The thorny issue of abortion has been one of the most bitterly debated ethical issues in modern time around the world because of the moral and ethical concerns which are connected to it. The concerns may be either religious or cultural in nature The battle is being waged between two extreme positions which are represented by the Pro-lifeandthePro-choicegroups. Insome countries it is eitherbanned oravailable within certain confines. In countries where contraceptives are not available women resort to abortion as a means for the control of their family. A woman may wish to have an abortion for social, economic, or personal reasons.

The question that must be posited here is why the woman does not want this particular pregnancy? The young woman may have been left in her plight by an irresponsible man; she may be in danger of failing to fulfil her career; she may be unable to face her parents or society as a whole. Whatever may be the reason, the woman does not wish to bring this pregnancy to term. Should she or does she have the right to terminate the pregnancy? The conservative view holds that these are not sufficient reasons for a woman to terminate her pregnancy. They argue that it is wrong to kill an innocent human being, and the fetus is such a being. But the fact remains that every woman who becomes pregnant will not bring it to term, and the law should provide the opportunity for her to receive proper medical care and

counsel. The other side of the question is, how should we determine what is, or is not, the life of an innocent human being.

The cultural and religious issues vary from country to country and the law that regulates abortion follows this pattern. Both the courts and the legislatures in many countrieshaveaddressedtheissuefromvariousperspectives:legal, social,political, and the most dominant being religious.

Of the arguments that are advanced in the current milieu, the religious is the most bigoted and illogical of them all but the most powerful. This is so because the religious denominations believe that they have a divine mission, as divine viceregents, to force their religious beliefs upon the rest of the society. The fact remains and always will be that so long as we live in a constitutional democracy, which provides for the flourishing of individual rights and the right of self-determination, therewillalwaysbemoralduality.Thesearerightswhicheveryinstitutionislegally obliged to respect and adhere to, regardless of the religious persuasion of those who hold public office.

The issues that have to be addressed from a moral and conventional perspective are: what are the concerns and circumstances of a woman who wishes to abort, that is, to terminate her pregnancy? What would be the reason(s) of the woman at this point and time in her life that has brought about this situation? The reasons may be many: economics, politics, social, educational, medical, or the woman may have been abandoned by some dissolute man, or to stave off marital breakdown. These issues must be critically considered and if possible, resolved morally and legally.

a. Legal Framework for Abortion

Whenever laws which are derived from morality are rigid, people would almost naturally find a way to circumvent it. Experience has shown that frequently, the circumvention turns out to be a disaster. For this reason, it is important that laws should have some flexibility built into it. The law and the ethical principles should take a permissive approach to these matters. I do not believe that abortion should be used as a contraceptive method; but I would also acknowledge that it should be primarily thebusiness of thewoman andherman,ifsheso chooses.TheWolfenden Committee Report pointed out that: “There must remain a realm of private morality

and immorality that is, in brief and crude terms, not the law's business” and I subscribed to this view.

In Barbados, abortion is legal when performed to save the life of the mother, to protect her mental health, where rape or incest was involved, foetal impairment or foreconomicorsocialreasons. In1983,parliament passedtheMedicalTermination of Pregnancy Act,41 which decriminalized abortion, granting women access to legal and safe abortion care.42 The act stipulates that abortions must be performed by a medical practitioner, having been approved by two physicians.

Prior to 1803 abortion was regulated by the Ecclesiastical Courts under the laws of the Catholic Church in England, Scotland and Wales; after the reformation these courts became defunct 43 The offence which was created by this Act was repealed and replaced by section 13 of the Offences against the Person Act 1828, under which the offence of abortion was established once the prosecution proved that the woman was quickened. Thepenaltyon conviction was death orpenal transportation forlife;womenwhowerenotquickenedsufferedthepenaltyofpenal transportation for 14 years.

The death penalty for abortion and the distinction between women who were quickened and who were not were abolished by section 6 of the Offences against the Person Act 1837. Section 6 was later repealed and replaced by section 5844 and 5945 of the Offences against the Person Act 1861. This section removed penal transportation as a possible punishment for convicts of abortion. The new offence was abortion or an attempt to procure miscarriage. This remained the law until a

41 Medical Termination of Pregnancy Act. (1985) CAP. 44A

42 United Nations. Department of Economic and Social Development (1993) See also: Termination of Pregnancy Act (1983).

43 The abortion cases were thereafter tried in the secular courts as a criminal offence contrary to common law. The common law was later codified by sections 1 and 2 of Lord Ellenborough’s Act Malicious Shooting or Stabbing Act.

44 Offences Against the Person Act (1837): Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable … to be kept in penal servitude for life

45 Offences Against the Person Act (1837). Preparatory Offence: Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour, and being convicted thereof shall be liable ... to be kept in penal servitude ....

lacuna was discovered by the court, that is, an infant could be killed at birth without offendingsections58or59.ForthisreasontheUnitedKingdomParliamentenacted the Infant Life (Preservation Act) 1929 to cure this lacuna by criminalizing the killing of an infant “capable of being born alive.” The Act makes the presumption that all foetuses that have gone through 28 weeks of gestation are capable of being born alive. In the case of foetuses that are less than 28 weeks evidence had to be led to show that they were capable of being born alive.

While the law was at this stage of its development the decision in Rex v. Bourne46was made. A gynaecologist, Aleck Bourne performed an abortion on a girl who became impregnated following rape. The decision extended the defence of abortion to include “mental and physical wreck.”

The Abortion Act 1967 was enacted by the United Kingdom Parliament; it removed some of the restrictions and made abortion more available through the provision of extended defences to doctors who performed the procedure under the statutory guidelines. It is a defence for the medical practitioner who performed an abortion on the following grounds:

● To save the woman's life

● To prevent grave permanent injury to the woman's physical or mental health

● Under 28 weeks to avoid injury to the physical or mental health of the woman

● Under 28 weeks to avoid injury to the physical or mental health of the existing child(ren)

● If the child was likely to be severely physically or mentally handicapped

Until 1990 when the Human Fertilization Embryology Bill amended the Act, the Infant Life (Preservation) Act47 acted as a buffer to the Abortion Act. This meant that abortions could not becarriedout ifthechild was "capableofbeing born alive". Therefore, there was no statutory limit put into the Abortion Act, the limit being that which the courts decided as the time at which a child could be born alive.

The Abortion Act 1967 was amended in 1990 by the Human Fertilization and Embryology Act 1990. The effect was that the Infant Life Preservation Act was decoupled from the Abortion Act thus allowing abortion to full term for disability, life of the mother and health of the mother. Some Members of Parliament claimed not to have been aware of the vast change the decoupling of the Infant Life Preservation Act would have on the Abortion Act, particularly in relation to the unborn disabledchild. Therewas afailedattempt to revisit theamendment andhave it overturned.

Both sides are blinded by their own agenda. I believe the decision must be that of the woman because at the end of the day it is she who has to carry the child for the trimester. If she does not want the child, she will see the fetus as an aggression that has invaded her body without her consent. This is bound to cause her psychological deterioration. This was the line of reasoning that justified the decision in Rex v. Bourne 48 The guiding principles in Rex v. Bourne and Roe v. Wade49 are remarkably similar, if not the same.

The Wolfenden Committee expressed the view that there is an area of morality or immorality which is not the business of the law. The law should not be made a trespasser by being forced into the privacy of a citizen. John Stuart Mill makes the point that;

The only purpose for which power can be rightfully exercised over any member of a civilized community, against his (sic) will, is to prevent harm to others… He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinion of others, to do so would be wise or even right.50

Ithereforebelievethatthelineof reasoningtaken in Rex v. Bourne and Roe v. Wade on the basis of viability is facile. It may be regrettable that a woman would have to

48 [1938] 3 All ER 615

49 Roe v. Wade (1973) 410 U.S. 113 was and continues to be a controversial decision which has political divided and polarized the United States into two camps of Pro-Choice and Pro-Life. The current controversy is centred around the issues: the legality of abortion, what methods the Supreme Court should use in constitutional adjudication, and the place of religious and moral persuasion in what is essentially a political issue

50 Van Mill D, “Freedom of Speech” (Stanford Encyclopedia of PhilosophyMay 1, 2017) &lt;https://plato.stanford.edu/entries/freedom-speech/&gt;.

decide to abort at that late stage (after 28 weeks), but nonetheless, it is for her to decide, not the society, or even a section of the society.

The right of self-determination is an integral part of the constitutional arrangement in modern pluralistic states, such as the United Kingdom, United States, and Canada, who have gradually relaxed their abortion laws. These states are no longer in agreement with the moral theology of the Church.51 If the Church wishes for certainlegislativeoutcomes,thenitmustfirstplaceitselfinthepositiontoinfluence public opinion in its favour. It can do this by creating a prominent presence in the media. Nevertheless, of even greater importance is its role in the formation of the mature social and moral consciences of its members.

b. Moral and Ethical Consideration of Abortion

The Lambeth Conference of 1930 recorded its condemnation of the sinful conduct of abortion by Resolution 16. The Catholic Church did the same in the Consti Connubii 52 This is the Roman Catholic position as stated by Haring (1972) 53 He also admitted that the Bible does not speak clearly to the issue of abortion neither in the affirmative nor the negative. He expresses the view that whatever the shortcomings of the Bible may be on the matter, abortion was condemned from apostolic time as being a direct transgression of the commandment to love one’s neighbour.Traditional,fundamentalistChristianityequatesabortionwithhomicide. This stemmed from the belief that what was happening in utero was truly human life. This point is most contentious. The strongest condemnation of abortion was issued in the Consti Connubbii 54

51Bernard Haring (1977). Only within the Church itself is the existence of doctrinal teachings a strong argument; in dialogue with others, it has little bearing. Since legislation in a modern democratic state depends great on public opinion, all who are convinced of the need for certain legislation to protect the innocent life of the fetus should give attention to the art of influencing public opinion by appropriate methods and arguments (p.117).

52 Bernard Haring (1977): Journal of Medical Ethics: the fundamental moral values which demonstrate the malice of abortion are: (1) the recognition of the rights of each human being to the basic conditions of life and life itself; (2) the protection of this right to live especially by those who have cooperated with the creative love of God; (3) the preservation of right understanding of motherhood; (4) the ethical standard of the physician as one who protects and cares for human life ad never becomes an agent for of its destruction. The vigour of the argument derives from our belief in the dignity of each human person created in the image of God and in man’s calling to universal brotherhood in mutual love, respect and justice (p. 98).

53 Journal of Medical Ethics 1977

54 Bernard Haring (1977): Journal of Medical Ethics: “There was evidently a strong conviction that the tendency towards abortion could not be conquered without first fighting the source of the evil, contraception. Again the want of critical distinctions failed to differentiate a contraceptive attitude from a responsible transmission of life” (p.105).

Catholic moral theology now modifies its teachings on the subject. It makes a distinction between direct and indirect abortion. Indirect abortion applies to circumstances in which the abortion is made necessary, for example, to preserve the life of the mother in the presence of an ectopic pregnancy or a cancerous uterus. The main effect is mainly another glorified moral good. The secondary effect is the destruction of the life of the fetus which is not intentional. In this situation is it impossibleto saveboth lives so onehas to sacrifice forthepreservationoftheother, in particular if the mother already has other children who needed her care and nurture.

The Anglican Church also accepts that the Bible does not speak directly to abortion, but the Church formulates its teachings on the principle of the sanctity of human life. In Jeremiah 1:5 God said: “Before I formed you in the womb I knew you, and before you were born, I consecrated you; I appoint you a prophet to the nations”. Was God specifically referring to Jeremiah or was he referring to the human race ingeneral?Taketheplain,literalmeaningofthewordsused,theycouldbereferring to Jeremiah and no general interpretation can be given to them or the meaning of will become incongruous

I have already pointed out above that while there need be some convergence between law and morality, they must by and large come to a cut-off point at which their waters must diverge and flow in different streams. In the absence of such a separation we must inevitably come to the point when we must ask ourselves whose morality should have paramountcy. This cannot be the ethos in a pluralistic society.

I must posit here the question whether a woman’s desire to abort an unwanted pregnancy for whatever reason is any business of the law. Should there not be an area of private morality which is sacrosanct from legal intrusion? Ihave pointed out above the position which was taken by the Wolfenden Committee in 1959 that:

“There must remain a realm of private morality and immorality that is, in brief and crude terms, not the laws business.” If this is accepted as a proper moral and legal position for one to take, then the moot should have been silent long ago. This view was stated long ago by Mills in this way; this is the ‘harm principle’:

That the only purpose for which power can be rightfully exercised over any member of a civilised (sic) community, against his will, is to prevent

harm to others… He cannot rightly be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinion of others, to do so would be wise or even right (p. 138).

In a pluralist democratic society, there will be others who have moral views that are contrary to those which we personally cherished, the fact that we think that our moral persuasions are full of wisdom does not permit us to arrogate to ourselves the right to impose it on others.

c. Clandestine Abortion

Clandestine seems to be on the increase in the Caribbean and Latin America on an annual basis. The pertinent question is what are the prevailing socio-economic circumstances that are responsible for the continued demand for abortion in the Caribbean and Latin America? Four million women in this region had abortions in 2003 and 95% of them were clandestine. Women who go through illegal abortion expose themselves to premature death and criminal sanctions. Resorting to illegal abortion poses a serious threat to physical and mental health of the woman. Why does the society make abortion illegal despite the countervailing potential harm to women’s health? The argument is based on dated moral and legal grounds. In Latin American the prevailing teaching of Catholicism in these societies continues to postpone the decriminalization of abortion. But the law against abortion violates the fundamental human rights of women: the right to life, health, selfdetermination, equality, to not be discriminated against, freedom of thought and religion, the right of selective control of fertility. The criminalization of abortion as it now stands is repugnant to and in contravention of the aforementioned fundamental human rights as enshrine in the constitutions and the United Nations Human Rights Convention for the protection of fundamental rights and freedoms.

World Health Organization (WHO)55 estimated that in 2003 some two thousand women in the Caribbean and Latin America die each year from unsafe abortion related complications. The continued criminalization of abortion forces women

55 Unsafe Abortion (2008): Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality. – 6th ed. Worldwide five million women are hospitalized each year for unsafe abortion related illnesses, such as haemorrhage, sepsis; and sixty-seven thousand women die each year from unsafe abortion.

who are not interested in motherhood for one reason or various reasons into becoming mothers. This creates an unhealthy social and psychological situation for both the mother and the child. The mother may not readily accept her social responsibilities as such because a child that she did not want in the first place, has been forced upon her by the law and the moral teachings of the society to which she does not subscribe. This is the fertile ground for social disaster, a tragic human situation.

It must be in the interest of public health, social justice, and human rights that women in this predicament should be given free access to safe and regulated abortion.Nootherpositioncanbecredibleinapluralistdemocraticsocietyinwhich there is a diversity of political and religious beliefs. What gives the right to one group to dogmatically impose its beliefs on another autonomous agent? We can hope to avoid the inevitable confrontation with women’s right to sexual and productive freedom.

IV. CONCLUSION

It is evident that moral and ethical considerations play a crucial role in understanding fundamental human rights when dealing with medical ethics. There should be some convergence between law and morality, however, the privacy and autonomy of private citizens should be respected. From the foregoing discussion, theevidencefromcaselawandlegislationshows thatthelaw andsocietal standards of a jurisdiction must meet on some common grounds to ensure protection of its citizens. It must be in the interest of public health, social justice and human rights that the people of the nation see legislation that reflects and educates them of their rights to bodily integrity. Additionally, in Barbados, we should move towards the development of our own legislation, as opposed to following persuasive precedent from our former colonizers. As pointed out by WHO (2008), the circumstances in the Caribbean and Latin America are unique. Would it not be sounder and more logical to have legal framework that reflects the reality of a jurisdiction’s people? I am inclined to believe so, it would be most beneficial to the island.

The Newly Registered Escazu Agreement: Does it viably ensure Environmental Access Rights in the Caribbean?

Makayla Williams

I. INTRODUCTION

In the Caribbean, the land is exploited at the expense of the surrounding neighbourhoods to ensure foreign exchange earnings and provide jobs using our natural resources. However, it is estimated that unregulated tourism growth will increasingly impact host countries and their natural environment.1 Further, territories engaging in natural resource extraction will continue to experience exploitation and decline in arable land. The potential for a more inclusive and sustainable model of resource-based development is squandered from one commodity boom to the next.2

Environmental access rights involve, enabling the public to access environmental information, ensuring public participation in environmental matters, and achieving justice in unwarranted environmental issues encompassing citizen participation. These rights need to be legislated since environmental matters are best handled by those affected at the relevant levels.3 Moreover, broad public participation, access to information and judicial/administrative proceedings are aspects that are now essential to promoting sustainable development.4 In light of the United Nations

* This paper was written during my second year of my L.L.B at The University of the West Indies Cave Hill Campus.

1 Organisation of Eastern Caribbean States ‘The Escazú Agreement: A case for signature’ August 2018

https://pressroom.oecs.org/the-escazu-agreement-a-case-for-signature Accessed 25th March 2020

2 Paul Collier the Plundered Planet: Why We Must and How We Can Manage Nature for Global Prosperity Oxford University Press, UK 2010.

3 At the UN Conference on Environment and Development in 1992 in Rio De Janeiro, Brazil

4 United Nations, ‘The Future We Want Outcome Document Outcome ‘United Nations Conference on Sustainable Development Rio de Janeiro, Brazil, 20–22 June 2012 (2012).

meeting in Rio, the Caribbean and Latin American region decided to band together to ensure environmental rights to their citizens with The Escazú Agreement. The Agreement reaffirms and strengthens the region’s commitment to respecting environmental access rights and promotes adherence to sustainable development.5 It places human rights at the heart of tackling the climate crisis aiming to achieve the Sustainable Development goals for the region. However, this agreement is not the only agreement that addresses environmental access rights within the Caribbean. This raises the question of whether the agreement is a viable option to ensure environmental access rights within the Caribbean given the fact that there are existing agreements in place.

The purpose of this research is to assess the viability of the Escazú Agreement in ensuring environmental access rights. Firstly, identifying environmental rights and their importance within the context of the Caribbean. Second, showing the application of other legislation and mutual agreements that protects the same rights as the agreement and the extent to which environmental access rights are protected within the Caribbean. The research will also dissect the articles within the agreement. Finally, with the use of the primary and secondary sources, give a full assessment of the viability of the agreement.

II. ENVIRONMENTAL ACCESS RIGHTS: WHY ARE THEY IMPORTANT?

The exploitation of natural resources has been the main source of foreign exchange and a pillar in our economies. For example, Jamaicans who live near bauxite mines may experience noise and air pollution along with being forcibly removed from theirland.Projects undertakenusing natural resources in theCaribbean can infringe on citizens’ rights to environmental access.

To preserve the quality of life for future generations, the region has agreed to commit to the sustainable development goals outlined by the UN.6 Hence, we see increased protection of environmental access rights which includes providing information on hazardous materials, activities in communities and the opportunity for citizens to participate in the decision-making processes. Additionally, access to

5 Winston Anderson Caribbean Court of Justice (CCJ) Judge 6 United Nations Conference on Sustainable Development Rio de Janeiro, Brazil, 20–22 June 2012.

justice is fundamental to environmental access rights and environmental protection. However, it can only be effective and implementable if there are adequate and attainable ways to seek redress to uphold the citizen’s rights when there is an injustice.7

The judiciary’s role is crucial to implement the principles prescribed in the agreement. In many Caribbean judgments, the length of time for hearings is always an issue. The agreement seeks to rectify this by providing competent entities with access to experts in environmental matters and effective, transparent, and impartial procedures that are not expensive to prohibit access. A broad active legal standing is needed in defence of the environment per national legislation and mechanisms to provide evidence admissible for redress.8 Further, current legislation dealing with environmental matters may not uphold access rights as proposed in the Escazú agreement.

The Escazú Agreement seeks to protect the environmental access rights of citizens and further promote human rights. The three sections the agreement addresses are access to information regarding environmental matters, citizen participation and access to justice. Further, there are provisions to ensure the protection of environmental human rights defenders (HRDs) from mistreatment and criminalisation. Finally, it enshrines the rights of indigenous peoples and other vulnerable populations.

It re-affirms the value of a regional and multi-lateral approach to sustainable development. It is among the numerous efforts governments across the region are using to combat environmental issues and ensure sustainable development.9 These all include elements related to Principal 1010 which includes access rights. Some have compared the Arhus Convention in Europe to the Escazú Agreement since it promotes similar principles.11

7 For example, when the rights to access are omitted or violated.

8 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement) Article 7

9 Other sub-regional efforts include the Port of Spain Accord on the Management and Conservation of the Caribbean Environment, the Port of Spain Consensus of the Caribbean Regional Economic Conference and the Revised Treaty of Chaguaramas.

10 The Rio Declaration on Environment and Development.

11 ibid Principle 10.

According to the Antiguan government, this agreement will help fight crime, poverty, inequality and is crucial to the protection of the environment in general. Further, they referred to the agreement as an 'environmental democracy,' which is anewlegal term thatimplies theparticipation of all in protectingtheenvironment.12

III. ASSESSING THE VIABILITY OF THE ESCAZÚ AGREEMENT

The regional agreement referred to as the Escazú Agreement,13 arose from a lack of ensured environmental access rights in the region. There were no binding frameworks in the region that recognized the human right to a healthy environment and protected these access rights. The law protects environmental rights generally in the form of fundamental rights provisions. However, as shown in the application of these rights, there was a need for a specific agreement to address issues not protected under the law. Hence, the agreement focuses on implementing environmental access rights throughout the region ensuring the people who are affected benefit. It also encompasses Principle 10 Rio Agreement which, provides for national-level participation, ensuring rights of citizens to access and justice.

Civil society played a role in the development of the content of the agreement through promoting standards of socio-environmental information that should be disseminated to the wider public. Some points states did not want to include, such as the registration of polluting agents, the dissemination of information on risks and environmental impact assessments but were eventually included. For the Escazú Agreement to enter into force, 11 countries in the region must ratify it by 27th September2020. So far, 22 havesignedtheagreementand9 haveagreedtoratify.14

The articles, in the agreement, that deal with the three main objectives of environmental access rights are referred to as the pillars of the agreement.15 These being access to environmental information, public participation, and justice.

12 Antigua and Barbuda government statement.

13 The Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean

14 Bolivia, Guyana, Nicaragua, Panama, St. Kitts & Nevis, St. Vincent, Uruguay, Antigua & Barbuda and Ecuador.

15 Implementing Principle 10 of the 1992 Rio Declaration: A Comparative Study of the Aarhus Convention 1998 and the Escazú agreement 2018.

a. Pillars of Environmental Access Rights

The first pillar of environmental access rights is access to information. This right can stand alone since the provisions ensure the public’s ability to request information, irrespective of a willingness to participate. The Agreement provides for the passive aspect of this right in the following:16

Each Party shall facilitate access to environmental information for persons or groups in vulnerable situations, establishing procedures for the provision of assistance

Following this, Article 6 provides:

The competent authorities generate, collect, publicise, and disseminate environmental information relevant to their functions in a systematic, proactive, timely, regular, accessible and comprehensible manner, and periodically update this information

The article enforces all parties to publish a national report on the current state of the environment.17 It also creates the possibility for the public to contribute to it. Thus, the national report may contain:

• information on the state of the environment and natural resources, including quantitative data, where possible.

• national actions to fulfil environmental legal obligations.

• advances in the implementation of access rights; and

• collaboration agreements among public, social, and private sectors.

Secondly, the agreement provides for public participation in environmental matters.18 Citizens in the public have the right to submit comments, information, analysis, or opinions for the duration of the public participation procedures. The public authority cannot refuse any of them.19

16 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú agreement) Article 5

17 Ibid Article 6 (7)

18 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement) Article 7

19 ELAC, UN, CCJ, Ensuring environmental access rights in the Caribbean Analysis of selected case law United Nations publication 2018 p 34.

Thirdly, the right to justice and fair trial is already an enshrined provision within the Bill of rights of Commonweal Caribbean territories. The right of access to justice is the backbone of environmental access rights and environmental protection.20 Rights can only be effective and implementable if there are adequate and sufficient redress mechanisms to uphold them whenviolations occur.However, this right does not have specific codified law to protect persons from mistreatment and time-lags in court decisions. Paragraph 4 of Article 8 provides for each party to facilitate access to justice in environmental matters for the public through:

a) measures to minimise or eliminate barriers to the exercise of the right of access to justice.

b) means to publicise the right of access to justice and the procedures to ensure its effectiveness.

c) mechanisms to systematise and disseminate judicial and administrative decisions, as appropriate; and

d) the use of interpretation or translation of languages other than the official languages when necessary for the exercise of that right

b. Other Protected Rights Under the Agreement

The agreement seeks to protect environmental defenders. Many social activists and indigenous peoples in Latin America and some Caribbean islands are killed, experience violence and criminalisation for efforts to protect their environment. So much so, 51% of the reported 164 murders of environmental defenders occurred in our region.21 This battle for natural resources, such as oil and land has caused this uptick in violence against these groups. However, the issue is misrepresented by this figure as many cases go unreported. To combat this, the agreement requires parties to guarantee a safe environment for persons, groups and organizations that promote and defend human rights in environmental matters.22 Adequate and effective measures to recognize. Protect and promote all their rights and prevent,

20 ELAC, UN, CCJ, Ensuring environmental access rights in the Caribbean Analysis of selected case law

United Nations publication 2018

21 Global Witness, Thom Pierce, UN Environment Guardian Annual Report 2018: Delivering Global Change Global Witness 2018.

22 ELAC, UN, CCJ, Ensuring environmental access rights in the Caribbean Analysis of selected case law

United Nations publication 2018.

investigate, and punish any attack, threat, or intimidation they suffer while exercising access rights.

Article 9 entitled, “Human rights defenders in environmental matters” provides each party is to provide a safe and enabling environment that promotes and defend human rights in environmental matters, take adequate and effective measures to recognize, protect and promote all the rights of human rights defenders in environmental matters including their right to life, personal integrity, freedom of opinion and expression, peaceful assembly and association, and free movement, take appropriate, effective, and timely measures to prevent, investigate and punish attacks, threats, or intimidations that human rights defenders in environmental matters. 23 Part two emphasises the rights and freedoms already protected under the constitution under the Bill of Rights. This is concerning because these fundamental rights are already utilisedby courts to protect persons from environmental injustice.

Despite the uncertainty of the agreement’s positions, there is a provision whereby specific consideration must be given to developing countries, landlocked developing and small island developing States (Sids) within the region.24 This proves to be useful. Other fundamental provisions were those related to the dissemination of information in cases of disasters. Further, the provision for regional cooperation in illicit activities against the environment.

IV. OUTCOME OF COURT PROCEEDINGS

The courts have made decisions based on the substance of local existing legislation to provide a remedy for complainants in environmental issues.

Firstly, access to information and rights to justice can be indirectly assumed from the current enshrined fundamental rights provisions. It is common for Commonwealth Caribbean constitutions to ensure access to information and participation within the framework of the Bill of Rights under rights to freedom of expression, assembly, and association.25 Further, it recognises the rule of law and due process which are upheld by the Constitution. Environmental access rights can also be drawn from other fundamental rights such as the right to life and health.

23 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement) Article 9

24 ibid Article 11 (2)

25 Examples include the Constitutions of Antigua and Barbuda, the Bahamas, Barbados.

However, this application may not favour persons who suffer indiscriminately from having their rights infringed.

In Sarstoon Temash Institute for Indigenous Management v. AG26 a multinational company applied for a permit to engage in tentative oil drilling in Sarstoon Temash National Park, Belize. The Environmental Impact Assessment for the proposed projectwassubjecttoapublicconsultationheldbytheDepartment ofEnvironment. Subsequently, the Mayan Communities wrote to the Prime Minister objecting to the drilling. The company was granted permission which was dependent on an Environmental Compliance Plan. It was also authorized to construct an access road to the proposed well site. The claimant objected to the oil drilling inside the park which spilt over on Maya traditional lands. This was in contention with Belizean law and the claimants requested for any permits or licenses issued to be struck down. Held, the permit was granted without the indigenous Maya communities’ consent. It breached their legitimateexpectationfor Governmentalcompliancewith its obligations under the United Nations Declaration on the Rights of Indigenous People and the Judgment of the Supreme Court. The permits were withdrawn.

Where public participation in environmental matters is not mandated by statute, Caribbean courts have generally analysed whether there is a legitimate expectation of consultation. This may arise out of official statements acknowledging the need to consider the public’s views and utilise their statements. However, as in Concerned Residents of Cunupia v Environmental Management Authority and RPN Enterprises Ltd,27 a legitimate expectation cannot be founded on a statutory right, “arising therefore where enforceable rights have ended.”28

Nevertheless, in the judgement of Fishermen and Friends of the Sea v the Environmental Management Authority, 29 and replicated in People United Respecting the Environment v Environmental Management Authority, 30 held regardless of the differences in legal regimes, the courts are bound to have an

26 Sarstoon Temash Institute for Indigenous Management v. AG BZ 2014 SC 14 (394 of 2013)

27 Concerned Residents of Cunupia v Environmental Management Authority and RPN Enterprises Ltd TT

2015 HC 259 (CV 3024 of 2012)

28 ELAC, UN, CCJ, Ensuring environmental access rights in the Caribbean Analysis of selected case law

United Nations publication 2018.

29 Fishermen and Friends of the Sea v the Environmental Management Authority H.C.813/2014

30 People United Respecting the Environment and ors v Environmental Management Authority TT 2009 HC 134 (CV 2263 of 2007).

inclusive democratic procedure, conferring on the public an opportunity to express its opinion on environmental issues as a directly enforceable right. As the Supreme Court of Jamaica put it in the Northern Jamaica Conservation Association case,31 it is now safe to say that consultation of citizens by public bodies and authorities is now a well-established feature of modern governance.

V. ANALYSIS OF TREATIES AND THEIR APPLICATION WITHIN THE CARIBBEAN

The Caribbean region has adopted a dualist approach to the cohesion of treaties and domestic law. Hence, international law can impose obligations on that government to act per the treaty’s provisions. However, some argue this is outside of the ambit of national law and can only become such utilising legislative enactment. In some jurisdictions, a treaty becomes part of local law without any legislation being enacted. Despite some progress, many countries find it difficult to implement such rights. Here, the adoption of a regional instrument on environmental access rights could improve the situation.32

a. Projected Applicability of the Agreement

Since the Escazú Agreement has not been ratified yet, there are no examples of its application. However, it was compared to the Aarhus Convention which was the first international treaty that implemented Principle 10.33 This new Agreement could serve as a catalyst, for the construction of environmental democracy and propel improvements in environmental law.34 Despite the potential overall improvement in environmental access rights, the issue of implementing the provisions of regional and international agreements has prevented real growth within the Caribbean region.

Itmaybearguedthat,incaseswherethetreatyprovidesforenforcingthelawwithin the state, there is no strict adherence to the doctrine of separation of powers. This creates a problem because the power to make treaties belongs exclusively to the

31 Northern Jamaica Conservation Association and JET v NRCA and NEPA HCV 3022 of 2005.

32The Economic Commission for Latin America and the Caribbean (ECLAC, or CEPAL) Social Panorama of Latin America 2013

33 Of the Rio Declaration on environmental Access Rights.

34 G Parola, S Guerra Implementing Principle 10 Of The 1992 Rio Declaration: A Comparative Study of The Aarhus Convention 1998 And the Escazú Agreement 2018 Revista Jurídica vol. 02, n°. 55, Curitiba, 2019. pp.1-33.

executive as this powerwas delegatedbyParliament. It maybe takenthat thepower to conclude treaties resides in the Prime Minister and the Minister for Foreign Affairs. Additionally, Heads of Diplomatic Missions and Accredited Representatives to international conferences enjoy the power, without producing documentary authority, to adopt the text of agreements concluded in the receiving state or at the international conference. No other Minister in Government, public officer or private individual may represent the state without production of full powers.35

In Neville Lewis v AG36 the court dealt with the relationship between Barbadian domestic law and international law founded on the American Convention on Human Rights. To maintain the separation of powers between the Executive and theLegislature, thecourts upheld theprinciplethatinternational lawcannot become part of domestic law unless the Legislature enacts it. Otherwise, by agreeing to an international treaty the Executive could seriously affect domestic law and by-pass the Legislature or the need for a special majority to pass legislation affecting entrenched Constitutional provisions.37 In AG v Joseph and Boyce38 the CCJ provided many reasons for rejecting the simplistic approach in Neville Lewis v AG.39 However, the CCJ upheld the existence of such right, but on a narrow footing based on the case outcome. Bahamas, Barbados, and Jamaica have a clause concerningtheprotectionofthelawbut no “dueprocess” clause,whiletheTrinidad and Tobago Constitution has both clauses. This shows there will be differences in applying Article 740 which provides for due process.

The issue of applying treaties within the region has made it difficult to see growth withintheCaribbean in terms ofbattlingglobal issues. Inaddressingtheapplication of the Revised Treaty of Chaguaramas, the question of capacity building was suggested to be addressed by pooling resources and agreeing to act together in areas such as tradeand economics. Undertheexisting Community arrangement,41 treaties

35 Anderson Treaty Making in Caribbean Law and Practice: The Question of Parliamentary Participation Caribbean Law Review pp. 76-115

36 [2001] 2 AC 50

37 Honourable Mr Justice David Hayton Precedents, Human Rights, and Incrementalism the Caribbean Court of Justice (CCJ)

38 [2005] 1 AC 400

39 [2001] 2 AC 50.

40 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement)

41 Referring to CARICOM.

must be implemented at the national level. If a community is built with the competence to make decisions that take effect directly within the member states, the Community would not experience delays in implementation, nor face nonimplementation.42 Professor Vaughan Lewis spoke to the issue in applying such treaties where the region is to work together. He stated that the implementation of the CSME has been prolonged more than anticipated, partly due to the necessity to ‘bat on all fronts’ at the same time since the region experiences limited resources.43 Failure to pool resources may result in issues no country wants to tackle, and a lack of cooperation is evident.

This raises some issues with the Agreement and the provisions as, the point of the Agreement is to present a strong signal to other countries and foreign investors that there is a commitment to good governance, public participation leading to betterquality decision-making in environmental matters and greater confidence in decisions made by the government.44 However, with differing structures, implementation in each territory within the region will not be equal and balanced. There will be time-lags experienced and shortcomings in the application of some provisions. This goes against one of the main pillars of the agreement which seeks to provide seamless justice for injustices regarding environmental issues.

VI. CONCLUSION

The Escazú Agreement ensures environmental access rights are protected within the Caribbean and Latin America. It presents itself as a viable option for protecting environmental access rights. The provisions within the agreement will be used to provide the vulnerable communities within the region with information, foster their participationinenvironmentaldecisionsandoffertechnical andfinancialhelpwhen seeking environmental justice.

International Multilateral Environmental Agreements that encompass Principle 10 similarly such as the Arhus Convention in Europe have expansive prescriptions and

42 Anselm Francis Bridging the Implementation Gap in The Revised Treaty of Chaguaramas Nordic Journal of Latin American and Caribbean Studies Vol. XXXVIII: 1-2 2008, pp. 105-120.

43 V.A Lewis “The Caribbean Single Market and Economic (CSME): The International Environment and Options for CARICOM and the OECS Counties”, in Hall, K. et al (eds.) The Integrationist (Kingston. Miami: Ian Randle Publishers, 2006) at 2. 26.

44 G Parola, S Guerra Implementing Principle 10 Of The 1992 Rio Declaration: A Comparative Study of The Aarhus Convention 1998 And The Escazú Agreement 2018 Revista Jurídica vol. 02, no. 55, Curitiba, 2019 pp.1-33.

has proved to be effective in Europe and parts of Asia. However, the implementation issue within the region regarding international law and local law poses an issue. This may hinder citizens from exercising the provisions of the agreement.

Further, the viability of the Escazú Agreement is questionable since it has not been ratified yet. Hence, there are no sources of its application which makes it difficult todeterminewhetheritmakes adifferencewithintheCaribbeanandLatinAmerica.

Law, Decolonization and Development: Post-Apartheid South Africa

Sarojini Persaud* Guest Writer

I. INTRODUCTION

This paper draws on the post-apartheid (1994 onwards) South African experience to argue that a country’s legal system is either an enabler or inhibitor of sustainable development.1 This is particularly germane to ex-colonial states, on the African continent, which retain the colonizer’s legal system. These territories struggle to design, implement and evaluate development strategies, enabled through domestically appropriate laws, locally owned and operated businesses, and public welfare programmes that are in sync and reflective of local conditions. As an exDutch settlement and British colony, and the perpetrator of what has been said to be a crime against humanity (i.e., apartheid2), post-apartheid South Africa offers one testament of how a legal system can be overhauled to promote, protect, respect and fulfil diverse peoples’ human rights, rather than protect the race-based interests of a minority settler group. Central in this shift of legal paradigms, however, has been the need for comprehensive legal, political, economic, social, and psychological decolonization, as Frantz Fanon3 lamented, “a radical cleansing of

Ontario, Canada.

1 “Development that meets the needs of the present without compromising the ability of future generations to meet their own needs” (United Nations General Assembly, 1987, p. 43).

https://sustainabledevelopment.un.org/content/documents/5839GSDR%202015_SD_concept_definiton_rev.pdf. accessed July 20, 2020

2 1973 UN Convention on Apartheid as a Crime Against Humanity. G.A. res. 3068 (XXVIII)), 28 U.N. GAOR Supp. (No. 30) at 75, U.N. Doc. A/9030 (1974), 1015 U.N.T.S. 243, entered into force July 18, 1976.

https://www.politicsweb.co.za/documents/1973-un-convention-on-apartheid-as-a-crime-against accessed March 22, 2019

3 “The Wretched of the Earth” is Frantz Fanon’s seminal 1961 book… about the effects of colonization on the minds of the colonized, and the efforts by the colonized to overthrow the colonizers. It draws from Fanon’s own experience as a Black man living in Algeria and witnessing the brutal war for independence from France in the 1950s. The book both narrates these experiences and theorizes them in a larger context of racial and national oppression.” In his book “Black faces, White masks”, Fanon addresses the psycho-social internalization, by colonized peoples, of the colonizer’s traditions and institutions.

https://www.gradesaver.com/the-wretched-of-the-earth accessed March 19, 2019

* This paper was written by Ms. Sarojini Persaud, BSc., LLB, MES, LLM, MPhil, PhD (candidate) Queen’s University, Kingston,

the colonizer’s psyche from the heads and hearts of the once colonized” This paper argues that South Africa has yet to decolonize apropos Fanon, the likes of the American-Palestinian Edward Said,4 Guyanese born Walter Rodney,5 Indian born Gayatri Spivak6 and other decolonization/de-construction advocates 7

This paper is in four parts. Part one summarizes a development agenda and challenges to it. Part two is an overview of South Africa’s legal system. It includes a discussion of the post-apartheid constitution’s incorporation of international human rights. An observation is made that a mixed legal system has evolved into a pluralisticsystemthatrecognizestraditional/indigenouslegalsystems. Inpartthree, the Truth and Reconciliation Commission (TRC 1995-2003) is discussed as an exampleofhow legally created institutions and“suspensions”of aspects of existing laws (e.g., criminal, and common law remedies) can be used to create political stability during volatile transitional periods. The TRC’s exclusion of economic crimes (e.g., corruption and theft of public revenues during apartheid, and white minority ownership of 80% of the country’s land), however, is noted as an omission that continues to plague South Africa.

Part four concludes with some reflections. Permeating the author’s thoughts is an argument, dominant amongst Black South African academics and/or activists, that South Africa’s legal and economic systems, 26 years into a new political dispensation, has not been decolonized. The dismantling of these systems and their institutions is urgent if substantive economic and social equality are to be realized. Although the author accepts this contention, caution should be exercised so as to

4 Edward Said wrote about how imperial powers transplanted their culture onto their colonies and the adverse impact that this has had on the indigenous/traditional cultures of colonies. Like Fanon and other deconstructionists and decolonization writers, a goal for colonies is to reform and reclaim traditions that are reflective of their cultures. https://janeaustensummer.files.wordpress.com/2016/01/culture_and_imperialism.pdf.

5 Rodney combined his scholarship with activism and became a voice for the under-represented and disenfranchised...His interest in the struggles of the working class began at a young age with an introduction to politics by his father…His PhD thesis illustrated his duality as an intellectual and activist as he challenged the prevailing assumptions about African history and put forth his own ideas and models for analysing the history of oppressed peoples. Influencedby the Black Power Movement in the U.S., third world revolutionaries and Marxist theory, Rodney began to actively challenge the status quo. He was assassinated at the age of 39.

6 “Professor Spivak is a scholar of deconstructive approaches to verbal, visual and social texts. By translating Jacques Derrida's De la grammatologie into English…she initiated a debate on deconstruction in the AngloAmerican academy. She defines deconstruction as ‘...a constant critique of what you cannot not want,’ and admits that what she continues "...to learn from deconstruction is perhaps idiosyncratic, but it remains my rein."… she raised the question "Can the Subaltern Speak?" whereby she took issue with Western intellectuals' almost confessional account of their inability to mediate the historical experience of the working classes and the underprivileged of society.”

https://prelectur.stanford.edu/lecturers/spivak/ accessed March 21, 2019

7 Fanon, Said and other social justice writers were influenced by European scholars like Antonio Gramsci, Aimé Césaire, Michel Foucault, and Theodor Adorno.

not “throw the baby out with the bath water”. What does this mean? Global trade, and the prevalence of international private law, based on Western legal traditions, necessitates national competencies in these legal traditions. Transformative change of such laws may have to be limited to avoid a conflict of laws and the legal uncertainty that flows from this.

II. A DEVELOPMENT AGENDA AND ITS CHALLENGES

The making of law is a political8 outcome; development9 is a political objective. Between a development objective and outcome are a host of variables including types of law (e.g., common, civil, indigenous, traditional, and religious), economic models (e.g., free markets, centrally planned markets, mixed systems, and collective ownership), global trade, domestic political will, human capital, and natural resource endowments. Discussions about the role of law in development must be informed by a consideration of these factors.

Particular attention must be given to the people, development is to serve (e.g., poor, marginalized, illiterate, disenfranchised, property-less, etc.) and the motives of political actors (e.g., human rights anchored, power driven, nationalistic, religion anchored, etc.). The economic paradigms political leaders adopt, and how these permeate development policies, laws, programmes and projects, are critical. Specific questions arise: Do political actors use the law as an instrument to improve the quality of life of their citizens, or as a tool to suppress social protest and keep the masses disorganized, disempowered, displaced, disheartened, depressed, dependent and/or “disappeared”?

At the level of governance, do laws dictate that political actors must be accountable and transparent or are they used to obfuscate the self-interests of corrupt political leaders? These are challenging issues! Perhaps an assessment of a country’s state

8 Cambridge dictionary defines politics as “the activities of the government, members of law-making organizations, or people who try to influence the way a country is governed”. https://dictionary.cambridge.org/dictionary/english/politics accessed March 21, 2019

9 The Agenda for Development states: “…Economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development. Sustained economic growth …should be broadly based so as to benefit all people, countries will be able to improve the standards of living of their people through the eradication of poverty, hunger, disease and illiteracy, the provision of adequate shelter and secure employment for all and the preservation of the integrity of the environment. Democracy, respect for all human rights and fundamental freedoms, including the right to development, transparent and accountable governance and administration in all sectors of society, and effective participation by civil society are also an essential…." https://research.un.org/en/docs/dev accessed March 19, 2019.

of development can be assisted by instruments like the World Bank’s Worldwide GovernanceIndicators(WGI).10 Basedonsixindicators,itwasdesignedto measure if there is a positive correlation between a country’s “political will” and its level of development. It attempts to measure governance, as a composite achievement, to create an empirical platform for policy makers and researchers to address how law may/may not be used for development.

Conversations about the role that law plays in development may be predicated on positive assumptions about the political stability11 and rule of law,12 elements of a governance system,13 in a subject geographic area. Residual power inequities, perpetuated by a colonising people on a colonized people, may not be explicitly considered. It may be easy to assume that a legacy colonial legal or economic system can itself beused to transform the verysociety it was usedto subjugate.This reasoning also applies in the case where Indigenous peoples have been displaced from their traditional territories by colonizers. These Nations had vibrant, precolonial contact, indigenous legal and surplus creation traditions but these were stripped of their legitimacy and the Nations subordinated by the colonial system.

A question needs to be asked: Can a legal system, the source of historical inequality inacountry,becomeatransformativeinstrument? Framedanotherway,whenblack South Africans marched in the streets and confronted security forces, to protest of the very laws that oppressed them, offers for legislative reform fell on deaf ears because they did not think these laws were legitimate. Apartheid statutory law was itself unlawful. Black South Africans fought for transformative legal reform – a new legal dispensation – made up of non-racist policies, laws, and institutions.

10 The Worldwide Governance Indicators (WGI) project reports aggregate and individual governance indicators for over 200 countries and territories over the period 1996–2018, for six dimensions of governance:

1.Voice and Accountability; 2. Political Stability and Absence of Violence; 3. Government Effectiveness; 4. Regulatory Quality; 5. Rule of Law; 6. Control of Corruption. These aggregate indicators combine the views of a large number of enterprises, citizen, and expert survey respondents in industrial and developing countries. They are based on over 30 individual data sources produced by a variety of survey institutes, think tanks, nongovernmental organizations, international organizations, and private sector firms. https://info.worldbank.org/governance/wgi/ Accessed July 20, 2020.

11 “Political stability and absence of violence measures perceptions of the likelihood that the government will be destabilized or overthrown by unconstitutional or violent means, including politically-motivated violence and terrorism.” https://landportal.org/book/indicator/wb-pvest accessed March 19, 2019.

12 Apodaca, C. (2004) The rule of law and human rights. Judicature 87 (6): 292–299.

13 “What is Governance? Governance consists of the traditions and institutions by which authority in a country is exercised. This includes the process by which governments are selected, monitored and replaced; the capacity of the government to effectively formulate and implement sound policies; and the respect of citizens and the state for the institutions that govern economic and social interactions among them.”

http://info.worldbank.org/governance/wgi/index.aspx#home accessed March 19, 2019.

Thus,since1994,allSouthAfricanlaws arereviewedand,whererequired,repealed and/or revised to comply with all generations of Human Rights entrenched in the country’s Bill of Rights. Where there are legislative “voids”, new laws are enacted. For example, equality rights, Black economic empowerment, and property ownership. But some laws required very little revisionary work e.g., laws regarding taxation, business association, and intellectual property - the commercial realm. Lawspertaining to real propertyownership,marriage,inheritance,voting,mobility, labour, education, etc., most with a racist purpose, had to be overhauled. As such, “unjust” laws cannot be used to create a “just” society; they cannot serve a sustainable development purpose.

III. SOUTH AFRICA’S LEGAL SYSTEM

South Africa’s legal system is described as “mixed” because of the influence of English common and Roman-Dutch civil legal traditions.14 This is a bit of a misnomer because the civil part of South Africa’s law is not codified as per the continental European tradition. Rather, South Africa’s civil law is substantively Roman law, mixed with the common law of other European traditions.15 These dates back to when Holland embraced the Roman Emperor Justinian’s codification (after its rediscovery during the enlightenment).16

In 1652, when the Dutch landed on South African soil, they brought with them this hybrid system of Dutch common and Roman law. South Africa’s reception of its Dutch settlers’ law, therefore, is considered civil law – it relies on legal principles rather than precedents. Because the codification of law in continental Europe happened post-18th century, i.e., legal principles set out in a code format, South

14 “Roman-Dutch law, the system of law produced by the fusion of early modern Dutch law, chiefly of Germanic origin, and Roman, or civil, law. It existed in the Netherlands province of Holland from the 15th to the early 19th century and was carried by Dutch colonists to the Cape of Good Hope, where it became the foundation of modern South African law.” https://www.britannica.com/topic/Roman-Dutch-law accessed March 25, 2019

15“In the 15th and 16th centuries the Roman law was “received” in the province of Holland (as it was sooner or later in the Netherlands generally), although general and local customs held their ground. These were based ultimately on Germanic tribal law Frankish, Frisian, Saxon supplemented by privileges and by-laws (keuren) and were themselves affected by an earlier infiltration of Roman law. The resulting mixed system, for which Simon van Leeuwen in 1652 invented the term “Roman-Dutch law,” remained in force in the Netherlands until it was superseded in 1809 by the Napoleonic Code, which in its turn in 1838 gave place to the Dutch civil code.” Supra note 15.

16 An excellent narrative of this history is provided by Professor Daniel Visser, of the University of Cape Town, in his article “Cultural Forces in the Making of Mixed Legal Systems” Supra note 12.

Africa cannot truly be said to follow a “civil” law tradition. It does, however, incorporate the juristic literature of the Netherlands.17

When the British occupied the Western Cape in 1806 and later, their common law tradition, especially procedural law, was transplanted. With the creation of the Union of South Africa through the South Africa Act, 1909, the gradual marriage of common and civil legal traditions commenced. Over time, Roman-Dutch substantive law was used with English procedural law. The influence of legal training in the transformation of two colonial systems into a single South African legal system is evident in the area of criminal law. Visser’s explanation is quoted in extenso:

“…the criminal law in South Africa has moved from being an entirely Roman-Dutch system (1652-1806) to being a system very heavily influenced by English law (1806-1950) and (increasingly since 1950) back to being an almost purely civilian system…. The return to a civilian model can, for the greater part, be attributed to the influence of one man, Professor J.C. de Wet of the University of Stellenbosch, who, in turn, was heavily influenced by German scholarship. The completeness of the return to the civilian fold in the second half of the twentieth century, is perhaps best symbolized by the fact that… in the late 1980s, a court could resort to the work of Antonius Matthaeus II to determine whether violence was a necessary element of the crime of treason. Furthermore, since 1977, the Criminal Procedure Act has contained at least a partial inquisitorial element and, since 1969, there has officially been no trial by jury in South Africa (and de facto for much longer than that) ”18

17 “The first attempt to reduce the Roman-Dutch civil law to a system was made by Hugo Grotius in his Introduction to the Jurisprudence of Holland, written while he was in prison in 1619–20 and published in 1631; this short treatise, a masterpiece of condensed exposition, remains a legal classic. Grotius’s commentaries were followed by those of Johannes Voet and Simon van Groenewegen van der Made. Toward the end of the 18th century Dionysius Godefridus van der Keessel, professor at Leiden, lectured on the jus hodiernum (“law of today”), of which he published a summary in Select Theses on the Laws of Holland and Zeeland… (1800). The lectures, commonly known as the Dictata, still circulate as manuscript copies and have been cited in judgments by South African courts.”

Supra note 15

18 Supra note 7.

In 1994, a new democratic dispensation was embraced by the majority of South Africans. The country became a constitutional democracy with an entrenched Bill of Rights. Until then, however, law was based on parliamentary supremacy, so the ruleoflawwas second to thewill ofa“white”minority parliament Themixedlegal system was subordinate to parliament. In the area of commerce, parliament enacted legislation to regulate (i.e., abrogated, limited, or transform) business enterprises, trademarks and copyrights, insurance companies and their products, and international trade. Non-statutory laws were generally aligned to each legal tradition as follows19:

ENGLISH PRIMARILY ROMAN-DUTCH MIXED

o public law - constitutional and administrative

o court procedure

o admittance of evidence

o private commercial

o law of succession - wills

o Law of persons20

o law of property21

o law of obligations (contract)22

o law of delict (tort)

o law of successiontestamentary and intestate (doctrine of forced heirship)

• substantive criminal law

This legal framework continues post-1994 with some noteworthy caveats. Firstly, the “…Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”23 Hence, all laws must be vetted by the constitution. Secondly, the Bill of Rights reaches into all areas of South African law – private, public, and traditional – and enjoins that their development/reformulation be consistent with it

19 This table was constructed by the author for easy of reference.

20 R.W. Lee, Introduction to Roman-Dutch Law, Oxford at the Clarendon Press, 1915 INTRODUCTION [Lee was Dean of the Law Faculty, McGill University, Montreal and an Advocate of the Supreme Court of South Africa of Gray’s Inn, and Professor of Roman-Dutch law in the University of London]. As per this book’s table of contents, the law of persons includes: Birth, Sex, Legitimacy; Parentage; Minority; Guardianship; Marriage; Unsoundness of Mind. Prodigalit; Juristic Persons

21 Supra. As per Lee’s book, the law of property includes: The Meaning of Ownership; Classification of Things; How Ownership is acquired; Ownership; Possession; Servitudes; Mortgage or Hypothec.

22 Supra. As per Lee’s book, thelow of obligations includes:1. Formation ofContract; The Parties must be agreed; The requisite Forms or Modes of Agreement, if any, must be observed; The Agreement must not have been procured by Fraud or Fear; The Agreement must not be directed to an Illegal Object; The Parties must be competent to contract; 2. Operation of Contract; The Persons affected by a Contract; The Duty of Performance; The Consequences of Non-performance; 3. Interpretation of Contract; 4. Determination of Contract; 5. Plurality of Creditors and Debtors; 6. Special Contract; Obligations arising from Delict; Obligations arising from Sources other than Contract and Delict

23 Constitution of the Republic of South Africa, 10 December 1996, available at: https://www.refworld.org/docid/3ae6b5de4.html [accessed 25 March 2019].

Section 8 reads:

(1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary, and all organs of state.

(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, takingintoaccount the nature of the right and the nature of any duty imposed by the right.

(3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court –

a. in order to give effect to a right in the Bill, must apply, or if necessary, develop the common law to the extent that legislation does not give effect to that right; and

b. may develop rules of the common law to limit the right, provided that thelimitation is in accordance with section36(1).24[author’s emphasis]

A key observation about section 8 is the scope of its application. All branches and organs of state are required to act in line with the Bill of Rights. Its’ coverage includes horizontal (i.e., private-private) and vertical (public-private) relations, and the common law must be developed to be consistent with its provisions. This reach isimpressivewhenthecivil,political,economic,social,cultural,andenvironmental rights, entrenched in the Bill, are considered. An apex legal framework, for transformative development, is provided in the Bill of Rights. But its’ realization depends on judicial adjudicators and legal practitioners.

a. Apartheid Dispensation [1948 To 1994]

The system of Apartheid became official state policy when the National Party25 was elected in 1948. In 1991, President de Klerk commenced the dismantling of the legal system that enforced Apartheid’s racist ideology.26 During the 46 years of a state enforced racist system, development had a distinctly different meaning than 24 ibid.

25 The NP was the governing party of South Africa from 1948 until 1994, and was disbanded in 2005. Its policies included apartheid, the establishment of a South African Republic, and the promotion of Afrikaner culture. https://www.sahistory.org.za/article/national-party-np Accessed July 21, 2020.

26https://www.history.com/topics/africa/apartheid#:~:text=After%20the%20National%20Party%20gained,and% 20use%20separate%20public%20facilities. Accessed July 21, 2020.

that espoused in U.N. instruments. Yes, potable water was delivered to the homes oftheenfranchised,urban centres grewto caterto theirrecreational andcommercial needs, health and education institutions were well funded, and bulk infrastructure (dams, railways, electricity generation, etc.) were built. It was a wonderful life for a white minority. The “rule of law” was used to deny the majority black population basic pre-requisites for human dignity.

White owned business entities conducted their affairs, exploited black workers, and relied on the “rule of law” to resolve commercial and labour disputes. Economic development unfolded but ownership of the means of production remained in the hands of the white capitalists. The union movement27 was the primary vehicle, along with many churches and public interest organizations, for black people to organize and resist the oppressive and dehumanizing system.

Twenty-five years after the first democratic elections (1994), there is not much substantive change South Africa’s Human Development and Inequality indices (i.e., Gini coefficient) do not tell a positive story.28 Although the country has had a constitution that entrenches all categories of human rights and the rule of law, and it is defined as a middle-income country, it remains “under-developed”. The countryhasdubbeditselfa“developmentalstate”butremainschallengedto provide basic necessities such as water, electricity, affordable health care, and livelihoods for the majority of people. Despite a new constitution and Bill of Rights, South Africans have not enjoyed the fruits of “sustainable development”.

27 The Congress of South African Trade Unions (Cosatu) was launched on 1 December 1985, at the height of the struggle against apartheid. As a federation, it brought together many of the unions formed after the wave of strikes at the beginning of 1973 which marked a renewal of trade union activity after a decade-long lull. https://www.sahistory.org.za/article/congress-south-african-trade-unionscosatu#:~:text=The%20Congress%20of%20South%20African,after%20a%20decade%2Dlong%20lull.

28 “One of the key findings in South Africa, which has been true for as long as we have had acceptable nationally representative data, is that income inequality is exceptionally high. From the first estimates based on the PSLSD 1993 survey up to Stats SA’s most recent household expenditure survey the LCS 2014/15, the Gini coefficient of household per capita income is typically well above 0.6.6. This easily places South Africa in the ‘top 5’ most unequal countries on a global scale. While there has been some debate about the precise levels of inequality, all researchers who work on this topic agree on the substantive point that inequality in South Africa is extremely high and has remained so since1993.”

Risenga Maluleke, Statistician-General, Inequality Trends in South Africa: A multidimensional diagnostic of inequality, Statistics South Africa, 2019, Report No. 03-10-19, p.28 http://www.statssa.gov.za/publications/Report-03-10-19/Report-03-10-192017.pdf. Accessed July 22, 2020

b. Decolonizing and Hybridity

What does it mean to decolonize a legal system? Does it mean the wholesale dismantling of a colonial/settler tradition? If yes, what is to replace it? How would matters like criminal justice, private dispute resolution, and domestic/international commercial transactions be regulated/managed during a transitional period? How would revenues for the national fiscus be generated? What would it mean for the country’s relations with other nations? In South Africa, for example, if commercial laws were “dismantled” how would the economy function until a new system was developed and implemented? If western notions of private property were replaced with a traditional notion of communal ownership, what would this mean for the country’s food security, residential accommodation, business investment and growth, public capital infrastructure development, etc.? Clearly, it is easy to say “decolonize” but the offering of concrete, functional, appropriate, and peaceful alternatives is not so easy. So, what now?

The notion of hybridity, as enunciated by Homi K. Bhabha29, has relevance. Building on the work of Edward Said, Bhabha’s axiomatic contention is that decolonizationrequires a recognition ofthings that are“good”about the colonizer’s traditions and institutions, and conscious decisions to discard what is not. In other words, the colonial baby should not be thrown out with the bath water; once cleansed of its “filth”, the baby, as it matures, holds wonderful possibilities. Hence, hybridity requires an interweaving of elements of colonial and traditional values, practices and institutions in ways that are appropriate given the conditions of a territory. South Africa’s mixed legal traditions, when combined with its Bill of Rights and constitutional recognition of traditional/customary law, is the perfect “petri dish” to grow a decolonized legal tradition. What better example than a country that constitutionally entrenches legal pluralism (e.g., common, civil, traditional/indigenous) and is sworn to a development agenda anchored in human rights?

29 Bhabha’s was influenced by deconstructionists like Jacques Derrida, deconstructionist psychoanalysts like Jacques Lacan, and Michel Foucault's notion of discursivity. He acknowledged Edward Said as having the most significant influence on his work. Notable amongst Bhabha’s works is: “Of Mimicry and Man: The Ambivalence of Colonial Discourse”, Vol. 28, Discipleship: A Special Issue on Psychoanalysis (Spring, 1984), pp. 125-133.

A distinguishing feature of South Africa’s constitution is its inclusion of all categories of human rights: civil, political, economic, social, cultural, and environmental. Section 39, interpretation of the Bill of Rights, is noteworthy:

(1) When interpreting the Bill of Rights, a court, tribunal or forum• must consider international law; and • may consider foreign law.

(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.30

If the act of decolonizing “received” legal traditions, within a hybridity paradigm, is to be pursued, section 39 is instructional. It enjoins the courts to adhere to international and foreign law. Not only must South African courts follow its mixed legal tradition, they must cast their adjudicative nets in international waters but stay anchored in domestic customary law! At first blush, this expansion complicates an already complex mixed system. But this is not the case because “international” translates into international public law – the growing body of human rights and humanitarian instruments (i.e., soft law) generated by the United Nations (U.N.) In this regard, hybridity would require a blending of private interest and human rights laws, within a sustainable development/ social justice legal framework.

c. International Public/Social Justice Laws

International public/social justice instruments are determined and/or shaped by a majority of member countries in the United Nations. They give concrete form to the sustainable development agendas of ex-colonies. The substance of these instruments is arguably what should guide legal systems “de-colonization”. The Declaration on the Right to Development (1986),31 the Declaration on the Rights of

30 Supra note 25.

31 “The United Nations Declaration on the Right to Development unequivocally establishes development as a right and puts people at the centre of the development process.” http://www.un.org/en/events/righttodevelopment/Accessed March 21, 2019.

Indigenous Peoples (2007),32 and the International Bill of Human Rights33 are bedrock decolonization instruments. Because South Africa is a signatory to such instruments, its’ courts, and law-making structures (i.e., parliament and legislative assemblies), have the legal mandate to use the law as an enabler of a decolonization agenda. Political will, however, is a pre-requisite for a decolonized legal system.

Visser34 contends that the South African Bill of Rights is one of the most prominent features of the new constitution, key aspects of which can be traced to Canadian and German influences through their financial and technical support. This may be so, but a review of the educational achievements of some key players who drafted/shaped the 1994 and 1996 constitutions, both African National Congress (ANC) political leaders and South African academics/technical advisors concretely illustrates Bhabha’s hybridity (e.g., collectively their knowledge systems spanned civil and common law traditions from communist and democratic political dispensations). It is arguable that these constitutional drafters saw fit to take the good and reject the bad of continental and North American constitutional traditions whilst recognizing and affirming South African customary law – a true legal pluralism.

Conversely, it may be argued that their borrowing from western legal traditions is evidence of colonization, albeit it in adifferent form.This lineofreasoning is weak. Everything in the South African Bill of Rights can be traced to U.N. instruments, within which, the axiomatic African customary value of “ubuntu”- a recognition of social relations as an enabler of human dignity – can be found. On the point of anchoring in customary law, section 211 of South Africa’s constitution affirms a place for the substance and institutions of traditional governance:

32 “Today the Declaration is the most comprehensive international instrument on the rights of indigenous peoples. It establishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world and it elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of indigenous peoples.”

https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html

Accessed March 21, 2019

33 The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols.

https://www.ohchr.org/documents/publications/factsheet2rev.1en.pdf. Accessed July 21, 2020

34 Supra note 13.

35 ibid

(1)The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution;

(2)A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs;

(3) The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.35

Ubuntu has been lauded and criticized as a post-apartheid standard for public morality. On the side of criticism, three deficiencies have been alleged: the concept is too vague; it does not acknowledge the value of individual freedom; and it is not suitable to a large-scale modern, industrial society. On the affirmative side, some argue that ubuntu is illustrative of a new, African infused, notion of morality that fits the African context.36 Retired Constitutional Court Judge Yvonne Mogoro said of ubuntu:

“…theconcept has generallybeendescribedas aworld-viewof African societiesand adetermining factor in the formation ofperceptions which influence social conduct… a philosophy of life, which in its most fundamental sense represents personhood, humanity, humaneness and morality; a metaphor that describes group solidarity where such group solidarity is central to the survival of communities with a scarcity of resources, where the fundamental belief is that… a person can only be a person through others… the individual’s whole existence is relative to that of the group: this is manifested in anti-individualistic conduct towards the survival of the group if the individual is to survive. It is a basically humanistic orientation towards fellow beings.”37

Ubuntu is a point of departure from western legal traditions because the collective, not the individual, is given primacy. This resonates in the notions of inalienability,

36 Metz, Thaddeus, Ubuntu as a moral theory and human rights in South Africa, African Human Rights Law Journal, 11 (2011): 532-559

https://philpapers.org/rec/METUAA-2 accessed March 19, 2019

37 Y, Mokgoro. (1998). UBuntu and the law in South Africa. Potchefstroom Electronic Law Journal. 1. 10.17159/1727-3781/1998/v1i1a2897.

indivisibility, and universality of human dignity but expands these characteristics to the collective. Human dignity is inherent in the value system of Ubuntu and international instruments like the covenants on civil and political rights38 (ICCPR), and economic, social, and cultural rights39 (ICESCR). Where a difference emerges, however,isintheweighingofindividualovercollectiveinterests.Thebalancemust tip in favour of the “collective” for sustainable development. In South Africa, this has recently manifested in the ruling party’s policy to appropriate privately held land (individual property rights) for equitable race-based redistribution (collective rights).40

Irrespective of the entry point, African Ubuntu, or western legal tradition, human dignity derives meaning in a social context. The role of law, therefore, is to protect, respect, promote and fulfil the individual’s dignity and the collective’s humanity Through sections 8, 39 and 112, the South African constitution entrenches a rule of law that enables and affirms Ubuntu and western notions of human dignity. This is hybridity. As noted by a controversial African decolonization scholar, Ali Mazrui41

“ ... Africa can never go back completely to its pre-colonial starting point but there maybe a case forre-establishing contacts with familiarlandmarks of modernisation under indigenous impetus.”42 Arguably, this “hybridity” can, in part, be attributed to the diversity of legal traditions South Africa’s power constituencies brought to the constitutional drafting tables.

38UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: https://www.refworld.org/docid/3ae6b3aa0.html [accessed 27 March 2019].

39 UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3, available at: https://www.refworld.org/docid/3ae6b36c0.html [accessed 27 March 2019].

40 December 2018, the South African parliament voted to commence a process to amend section 25 of the Constitution to enable land expropriation without compensation. The opposition party has vowed to take the ANC to court should it pursue its land redistribution policy through Constitutional amendment. Andisiwe Makinana, “Parliament gives go-ahead for land expropriation without compensation”, Times Live, 04 December 2018 - 16:53

https://www.timeslive.co.za/politics/2018-12-04-parliament-gives-go-ahead-for-land-expropriation-withoutcompensation/ accessed March 21, 2019

41 Dr. Mazrui graduated in 1960 from the University of Manchester in England and received a master’s degree from Columbia University in New York a year later. In 1966 he received a doctorate in political science from the University of Oxford. A controversial African decolonization advocate, Mazrui affirmed a notion of hybridity with his self-description wherein he said that he was the product of western, African traditional and Islamic traditions. In 1986 he wrote and directed a public television series, “The Africans: A Triple Heritage”. 42 Supra note 33.

https://www.researchgate.net/publication/26633677_UBuntu_and_the_law_in_South_Africa accessed March 24, 2019.

IV. TRUTH AND RECONCILIATION COMMISSION

The importance of processes like the Truth and Reconciliation Commission

43 (TRC) for South Africa’s peaceful transition, from an undemocratic and repressive governance system to a full and free democracy, cannot be glossed over. A recounting of what happened when Nelson Mandela was released from prison in 1990, nine days after the ANC was unbanned, and how peoples’ emotional pain was rechannelled, by the ANC leadership, to the ballot box rather than the streets, helps to explain the “miracle”.

The transition process was based on politically negotiated settlements/accords/records of understanding and, for the 1994 to 1996 period, power sharing between the ANC and the National Party. This enabled political stability and an absence of violence in the short term. During this time, the idea of “de-colonization” was at best, dormant Uppermost in the minds of political leaders was the need for immediate “healing” – a pre-requisite for decolonization. Families whose loved ones had “disappeared”, and/or had been murdered, during apartheid, needed closure. To secure information about “disappearances” and murders, the perpetrators had to be reassured that they would not be prosecuted or subjected to civil claims. The TRC was established, by an Act of Parliament, in 1995 – it had the authority to give amnesty to the perpetrators of criminal actions, committed under apartheid, provided they were politically motivated. A controversial element of the Act was its preclusion of civil remedies to the families of the victims. The TRC, a legal construct, illustrates one way in which the law can be used for a gradual and stable/peaceful dismantling of colonial institutional legacies and the damage these caused to the psyche of the oppressed. The rule of law can be an enabler of non-violent de-colonization.

The TRC Act was challenged in the Constitutional Court by the Azanian People’s Organization (AZAPO)44 and others in 1996 on the basis that it denied the families and victims of apartheid crimes their right to access justice. The Constitutional

43 Promotion of National Unity and Reconciliation Act 34 of 1995

https://www.britannica.com/topic/Promotion-of-National-Unity-and-Reconciliation-Act-34-of-1995 accessed March 23, 2019

44 An excerpt of the AZAPO 2019 manifesto described the organization: “AZAPO is a credible party- a liberation movement- that has fought for more than 50 years since the founding of the Black Consciousness Movement, on the side of Black people, in pursuit of justice, democracy and freedom.”

http://azapo.org.za/azapo-national-and-provincial-elections-manifesto-2019/ accessed March 22, 2019.

Court, however, found that the Act was valid. The critical moment was when no one knew how AZAPO would react to the judgment. In his majority judgment, Justice Mahomed explained:

“The objectives of (the TRC) are set out in section 3 (of the Act). Its main objective (was) to ‘promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past’. It is enjoined to pursue that objective by ‘establishing as complete a picture as possible of the causes, nature and extent of the gross violations of human rights’ committed during the period commencing 1 March 1960 to the ‘cut-off date’. For this purpose, the Commission (was) obliged to have regard to ‘the perspectives of the victims and the motives and perspectives of the persons responsible for the commission of the violations. It also (was) required to facilitate ‘...the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective...’ (It was) further entrusted with the duty to establish and to make known ‘the fate or whereabouts of victims’ and of ‘restoring the human and civil dignity of such victims’ by affording them an opportunity to relate their own accounts of the violations and by recommending ‘reparation measures’ in respect of such violations and finally to compile a comprehensive report in respect of its functions, including the recommendation of measures to prevent the violation of human rights.”45

The TRC is an example of how law, albeit it controversial, can be constructively used in the early stages of a fractured country’s development Its’ process provided a post-apartheid legal foundation upon which future conversations about decolonization could take place. The country remained politically viable, albeit economically unequal. But the ground was prepared for strong public interest laws to guide development and decolonization.

The development problems inherent in an economically unequal South Africa, however, wereto emerge in thedecades that followedtheTRC’sterm. Today,some

argue46 that processes like the TRC is an example of how the ANC “sold out” to what they call “white monopoly capitalists47”. These activists argue that although the political system is “black”, the economic system remains “white” - the ownership of the means of production remain in their hands. Moreover, white capitalists and corrupt black politicians collude with each other. The result is “state’s capture” by these capitalists. Conjointly, this “unholy” alliance stands in the way of necessary decolonized and pro-development policy and legal reform.

V. CONCLUSION

Without political stability, development efforts are futile. Without an overhaul of the colonial political economy left in developing countries, development is only surface deep. Politics and economics, as colonial legacy paradigms, must be imbibed with the knowledge systems of the once colonized - hybridity. It would not be prudent to throw out these legacy systems before critically assessing what is good and appropriate for South Africa. The western notion of the rule of law and human rights are not incompatible with the African traditional value of Ubuntu. However, without the institutions and resources to infuse laws with an Ubuntu morality, a human rights vision of development remains a pipedream.

In some respect customary/traditional systems have been influence by human rights

e.g., gender equality and inheritance The moral substance for law is no longer only civil or common law. Two other sources - customary/traditional and international human rights - must be recognized and, in so doing, create a legal pluralism that contributes to ameliorating the harm caused by colonization. In South Africa, the

46 Dr. Tshepo Madlingozi is Black South African scholar who researches and publishes on topics such as decoloniality and epistemologies of the Global South; race, racism, and Constitutionalism; social movements and legal mobilization.

https://www.up.ac.za/jurisprudence/article/1908623/mr-tshepo-madlingozi accessed March 21, 2019

Dr. Joel Modiri is a Black South African scholar who research and publishes on topics relating to the “development of a critical anti-racist post-conquest jurisprudence through which to contemplate possibilities for liberation, decolonization and historical justice in South Africa and beyond.”

https://www.up.ac.za/jurisprudence/article/2244500/preview accessed March 21, 2019.

47 The British communications consulting firm, Bell Pottinger, is alleged to have coined this phrase as a way of discrediting White capitalists in South Africa and thus, cause social disharmony, so that then president Jacob Zuma and his “cronies” could deflect attention from their corruption and looting of the public purse. However, “… Neither ‘monopoly’ nor ‘capital’ per se but the specific couplet ‘monopoly capital’ is a key Marxian classimbued concept of how the normal, worldwide, processes of capital accumulation inevitably lead to a monopoly stage, at which point it outgrows national borders and then plays a major role in shaping the histories, the economics and politics, of both the individual countries it penetrates as well as whole epochs globally.”

https://www.dailymaverick.co.za/opinionista/2018-01-11-whats-in-a-name-white-monopoly-capital/accessed March 25, 2019.

de-colonization of laws is slowly underway. Its’ acceleration will be aided by a direct address of issues of land claims and the means of production ownership and control. Parallel to this economic challenge, however, is the equal need for psychosocial decolonization. Today’s conflicts about the removal of visible colonial vestiges (monuments and statues of colonial figures) highlight the fact that colonization was a crime against humanity, and this must be acknowledged Its’ psycho-social damage remains and manifests in “Black Lives Matter” and other anti-establishment protests.