The UWI Cave Hill Student Law Review (Volume 29)

T H E

THE STUDENT LAW REVIEW

JUNE 2023

VOLUME: 29

The University of the West Indies

FACULTY OF LAW

CAVE HILL CAMPUS

BARBADOS

© Copyright 2023

All rights reserved. No part of this review may be reproduced or utilized in any form, or by any means, electronic, or mechanical, including photography, and recording, or by any information storage or retrieval system, without the permission of the publisher.

The views expressed by the contributors are not necessarily those of the 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.

© 2023 Individual Authors

THE TWENTY-NINTH EDITORIAL BOARD

EDITOR-IN-CHIEF

Lucas Jonas

Publications Chairman (2022-2023)

EDITORS

Paul Mc Burnie

Senior Editor – Publications Committee

Faaizah Momla

Senior Editor – Publications Committee

SENIOR ASSOCIATE EDITORS

Professor Alina Kaczorowska-Ireland

Dr. Antonius Hippolyte

The University of the West Indies Cave Hill Campus - Lecturers

Anthony Francis Worrell

Attorney-at-Law

INTRODUCTION TO THE EDITION

Lucas Jonas Editor-in-Chief

The University of the West Indies Cave Hill Campus’ Student Law Review has, for many years, given students of Law at Cave Hill an opportunity to express themselves and voice their opinions on various matters of legal significance in the Commonwealth Caribbean. It is with much pride that in closing my stint as Chairman of the Publications Committee at Cave Hill, I introduce the 29th Volume of the Cave Hill Student Law Review.

The primary purpose of this year’s edition of the Review is preserving tradition and ensuring the continuity of the Student Law Review as a platform for the publication of student research and ideas. To this end, I thank all applicants, and wholeheartedly congratulate the select authors whose submissions are contained in the following pages. Your work, diligence and self-discipline are a source of great pride for the University, and it is my hope that future generations of students at the Cave Hill Campus and curious minds alike will read your work, in the pursuit of knowledge and inspiration.

The format and style of this year’s publication was modelled substantially after older editions of the Student Law Review, with reference also having been made to The Oxford University Undergraduate Law Journal.

Special thanks to Paul Mc Burnie, whose determination and persistence ensured the completion of this year’s Cave Hill Student Law Review.

Is the Doctrine of Supremacy a prerequisite for the Enforcement of Community Obligations?

Faaizah Momla

1

Supremacy of EU Law

Within the integration organisations, the principle of supremacy2 refers to the idea that the rules and obligations that are established from the treaties are supreme in relation to Member State’s law. In European Union (EU) law, supremacy is highlighted wherein a conflict arises between EU law and a Member State’s national law, in that EU law prevails.3 The view that the principle of supremacy is fundamental to resolving conflicts between Community obligations and domestic legal systems stands to be contested. In examining this thesis, the evolution, and the meaning of the principle of supremacy in EU law will be traced, and the Caribbean Court of Justice’s (CCJ) jurisprudence and CARICOM’s approach to the fundamental principles established in EU law on this topic will be critically examined seriatim.

I. EU Approach

The doctrine of supremacy of law resembles the fundamental rule of international law of pacta sunt servanda which is translated as ‘treaties must be observed.’ By signing onto the EU Treaty, each Member State binds itself to the permanent limitation of its sovereignty in conformity with the provisions of the treaty over the national laws of the State including the fundamental constitutional rules.4 These treaty agreements are binding and must be implemented in good faith.5 Although the principle of supremacy in EU law does not have a formal basis in the Treaty it has significant implications, and extensive meaning. The consequence of this is that the legality of any

1 This Essay has been divided by topics for easy comprehension.

2 Primacy and Supremacy are used interchangeably.

3 Case C-409/06 Winner Wetten v Burgermeisterin der Stadt Bergheim [2010] ECR I-8015 at para 53

4 R v Secretary of State for Transport, ex p Factortame [1990] ECR I-2433, ECJ.

5 Articles 26 and 27 of the Vienna Convention on the Law of Treaties

provision from EU law is undisputable, or its effect is unhindered by the domestic laws of a Member State.6 Furthermore, national courts are obliged to interpret national law following EU law.7

This principle was first highlighted in the case of Costa v ENEL8 whereby the Italian court sought to assert that its national legislation should prevail over the EU law. On preliminary reference, the European Court of Justice (ECJ) outlined the nature of the legal system and the fundamental concept of supremacy, stating that if national law could nullify EU law, then it would deprive it of its character as EU law and threaten the legal basis of the EU itself.

Additionally, this doctrine was reinforced by the ECJ, and the implications were demonstrated in Amministrazione delle Finanze v Simmental. 9 Here, the court declared that EU regulations are directly applicable and must be uniform throughout the legal systems of each Member State. This, therefore, creates direct rights and duties for both Member States and their nationals. The ECJ held that the supremacy of EU laws means that the direct applicability of provisions of EU law automatically renders the previous state laws inapplicable. Likewise, the adoption of future legislative measures is precluded if they are incompatible with EU law. From this judgement, the principle of direct applicability is introduced along with the notion of supremacy. As such the relationship between these two doctrines is inquired in relation to supremacy.10

Direct Effect/Direct Applicability

In the case law of the ECJ, the terms direct applicability and direct effect are used interchangeably.11 However, these two concepts are clearly distinct as noted by Kaczorowska12 in her EU textbook, that the principle of direct applicability merely refers to the way in which Community law is considered automatically part of national law but does not necessarily entail enforceability in that legal order. Conversely, direct effect refers to the way in which regional law

6 Case 11/70 International Handelsgesellschaft v Einfuhr- und Vorratstelle für Getreide und Futtermittel [1970] ECR 1125, ECJ.

7 Case C-397-403/01 Pfeiffer and Others v Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2004] ECR I-8835; Indirect Effect.

8 Case 6/64 [1964] ECR 585

9Case 106/77 [1978] ECR 629

10Craig PP and Búrca GD, EU Law: Text, Cases, and Materials (Oxford University Press 2011)

11 Halsbury’s Laws (2022) vol 47, para 167

12 Alina Kaczorowska, European Union Law, 2nd edn (London: Routledge, 2011) ch 11

is not only part of national law but is also actionable before the courts by private actors. The issue then arises as to if the direct effect is conditional or a consequence for EU law to have supremacy over national law. Granted the doctrines of direct effect and direct applicability seem to be entwined with supremacy as the doctrines build the block for the supremacy of EU law.13

The relationship between direct effect and supremacy was examined by Michael Dougan using two models: the primacy model and the trigger model.14 The primacy model argues that supremacy is independent providing “exclusionary effects” in the national sphere by setting aside rules that are not compatible with Community law. Distinctively, direct effect provides “substitutionary effects” which create rights from the Treaty that are non-existent in the national legal system. Through this distinction, Dougan attempts to divorce these doctrines from each other.

In contrast, the trigger model emphasises that for any provision of Community law to produce an independent effect on the national legal system it is essential that the provision from the Treaty satisfies the criteria of having a direct effect. Evidently, this model demonstrates that the principle of supremacy is a consequence of and is dependent on direct effect. Accordingly, this model signifies the prominence conferred to supremacy by direct effect. This is again affirmed in the Costa15 case which suggests that direct effect is dependent on supremacy.

Although Dougan mentions direct effect only, it can be noted that direct effect, direct applicability, and supremacy are inter-reliant in nature. Although Dougan’s models are not supported by case law, the latter model is more intellectually enriching. For example, if there is an EU provision which is directly applicable, but it somehow clashes with national legislation, the mere concept of supremacy authorizes the national legislation to be set aside. Moreover, the enforcement of EU law in national courts by private actors is granted through the doctrine of direct effect which showcases the superior nature of EU law.16 Consequently, these doctrines allow for European integration to be effective as Member States are obliged to comply with provisions and obligations composed in the treaty.

Pre-emption: Relationship to Supremacy - EU Approach

13 Craig PP and Búrca GD, EU Law: Text, Cases, and Materials (Oxford University Press 2011)

14 Dougan M, “When Worlds Collide! Competing Visions of the Relationship between Direct Effect and Supremacy” (2007) 44 Common Market Law Review 931

15 Case 6/64 [1964] ECR 585

16 Van Gen de Loos Case 26/62 [1963] ECR 1.

In demonstrating that supremacy is not the sole mechanism to resolve conflicts laws the principle of pre-emption is introduced. Article 2(2) of the Treaty on the Functioning of the European Union (TEFU) stipulates that a Member State can exercise competence only to the extent that the Union has not exercised its competence within a specified area.17 This article establishes the exclusive competence over an area which previously had shared competence wherein Member States lose their power to act independently in the area of law.18 Therefore, the principle of pre-emption is tied to supremacy in EU law because the competencies and concurrent powers would be justifiable when the organization acts in accordance.

State Liability- EU Approach

The principle of State liability refers to Member States having liabilities in damages to individuals who have suffered loss as a result of that Member State’s infringement of EU law.19 This doctrine was first highlighted in the Joined cases of Francovich v Italy and Brasserie du Pêcheur SA v Germany20 on the basis of two grounds: the principle of effectiveness and the requirements of Article 4(3) TEU.21 This doctrine demonstrates that the principle of supremacy is not the sole mechanism to resolve conflicts between national and Community law. Although it can be noted that there is no textual basis from the treaties, later cases describe the doctrine as being ‘inherent in the system of the [EU] Treaty’22 highlighting the strong foundation of this doctrine. The joined cases of Brasserie du Pêcheur SA v Germany and R v Secretary of State for Transport, ex parte Factortame Ltd and Others23 mention the right of reparation arises when 1. the infringed rule is intended to confer rights on individuals 2. the breach is sufficiently serious 3. there is a direct

17 Consolidated Version of the Treaty on the Functioning of the European Union [2016] OJ C202/50, art 2(2)

18 Commission v Council Case 22/70 [1971] ECR 263

19 Alina Kaczorowska, European Union Law, 2nd edn (London: Routledge, 2011) ch 12.

20 Joined Cases C-6/90 and C-9/90 Francovich v Italian State and Bonifaci v Italian State [1991] ECR I5357.

21 Article 4(3) of TEU. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.

22 R v Secretary of State for Transport, ex parte Factorme Ltd and Others [1996] ECR I-1029, at p I-1144 [31].

23 C-46/93 and C-48/93

causal link between the breach of the state’s obligation and the damage suffered by the injured parties. The principle of state liability allows for the effective enforcement of Community obligations and enhancing integration within the Community.

Administrative Implementation- EU Approach

Within the EU, there are fundamental principles of EU law which allow for administrative implementation. Although the treaties and their amendments are silent in the issue of priority between national laws and EU law when there is a conflict. Through case law it is evident that the fundamental principles of EU law are present within the application of Community law. As mentioned above, these principles include supremacy, direct effect, direct applicability, preemption of EU law and State liability. These principles are the foundation for the administrative implementation of EU regulations allowing national law to be in accordance with EU regulations. Consequently, the view that supremacy is the only mechanism is incorrect because the doctrines are all inter-reliant on each other.

II. CARICOM Approach: Supremacy

The CCJ in its original jurisdiction will have to decide on whether the adoption and development of the doctrine of supremacy of Community law are essential regarding conflicts with the Revised Treaty of Chaguaramas (RTC). Correspondingly, the acceptance of the concept of supremacy by the Member States remains yet to be seen. The inquiry, nonetheless, arises as to whether the doctrine of supremacy is a prerequisite criterion for regional integration and the exclusive mechanism to resolve conflicts.

In the case of Shanique Myrie v Barbados, 24 this question was raised but the Court avoided answering as it mentioned the implementation would hinder the exercise of sovereignty by the Member States. As a result, the Court did not directly declare the adoption of the supremacy doctrine but merely left room for it. The Court further seemed to embrace the traditional form of supremacy at the Community level rather than the domestic level.25 Although the Court did not mention its approach to this doctrine the basis of supremacy is readily present in CARICOM law.26

The basis of supremacy is demonstrated through the requirements of effectiveness, uniformity,

24 [2013] CCJ 3 (OJ) [69]

25 Berry DS, Caribbean Integration Law (Oxford University Press 2014) 219

26 Berry DS, Caribbean Integration Law (Oxford University Press 2014) 218

non-discrimination, and the binding obligations assumed by member states in relation to Community law.27

Supremacy Sole Mechanism

In RTC there is no explicit mention or support of the principles of direct applicability, direct effect, or pre-emption. As aforementioned these principles are correlated therefore if the CCJ is to embrace the concept of supremacy of Community law it is essential to accept the doctrines. In the event, there is acceptance of these doctrines, it can be asserted that the principle of supremacy is not the only mechanism to resolve conflicts in national and Community law. Hence, the idea of the adoption of the concept of direct applicability, direct effect and pre-emption will be analyzed in a CARICOM context.

Direct Applicability

In the EU, direct applicability goes a step further in that EU law is automatically part of national law and does not require legislative transformation.28 This again demonstrates that supremacy is necessary, but it is not the sole mechanism.

From the onset, Article 9 of the RTC allows for binding legal obligations upon Member States at regional levels. Article 9 can also be interpreted to have a broad meaning as the provisions necessitate Member States to ensure that the obligations are carried out and abstain from measures that prevent the achievement of the objectives of the treaty. Accordingly, the obligation seems to require that member states modify their laws so there is no conflict with the requirements of the RTC.29

In the case of Trinidad Cement Ltd and TCL Guyana Inc v Guyana, 30 the effect of direct applicability developed a step further. Here, the court interpreted the RTC as creating rights and obligations for States as well as allowing correlative rights of nationals to be protected. Nevertheless, there was no mention that these rights are capable of being protected at the national level. Though this is distinctive from the EU concept, the correlative rights emphasise the doctrine of direct applicability in CARICOM at the regional level.

27 Costa v ENEL Case 6/64 [1964] ECR 585

28 Variola v Amministrazione delle Finanze (Case 34/73)

29 Berry DS, Caribbean Integration Law (Oxford University Press 2014) 199

30 Judgment [2009] CCJ 1 (OJ), (2009) 74 WIR 302

In a CARICOM context, the idea of direct applicability existing in domestic law can be considered controversial for numerous reasons. This is because the treaty’s provisions demonstrate and preserve a dualist system of law.31 In other words, this requires treaties to be transformed before they can have binding force in domestic law.32 Subsequently the treaty provisions that have not incurred transformation under national law are incapable of having a binding effect.33 This, therefore, allows for the only acceptable role of the unincorporated treaty to be that of interpretation at the domestic level.

Since direct applicability in CARICOM is not enforceable in domestic courts, it can be noted that this would challenge the supremacy of Community law. For there to be the supremacy of Community law, there should be no barrier at the national level. This would allow the supremacy doctrine to extend to the fundamental rights in Constitution34 suggesting that direct applicability at the national level would be a criterion for supremacy. As such, the quintessential requirement for laws to be transformed hinders the application of regional law which results in the frustration of regional law.

Direct applicability in CARICOM extends to a regional level but if the doctrine of supremacy was to be developed, it would be necessary that direct applicability extends to domestic levels because the doctrines are related chronologically. This would be an issue in the CARICOM context because direct applicability is limited by rules and international treaties. The challenge that CARICOM would experience with direct applicability in domestic law proves that supremacy is not the only mechanism to resolve conflicts.

Direct Effect

The doctrine of direct effect comes from the locus classicus case of Van Gend en Loos v Nederlandse Administratie der Belastingen35 whereby the issue arose as to the direct application of Article 12 of the EEC Treaty to allow individual rights to lay claims in a national court. The Court held the treaty created individual rights that the national courts are to be protected. Therefore,

31 Art 240 of RTC

32 R v Lyons [2003] 1 AC 976 (HL)

33 Linton v Attorney General [2009] ECSC J0629-1.

34 Internationale Handelsgesellschaft (1987) ECR 3969

35 Case 26/62 [1963] ECR 1.

it can be noted that this concept is a necessary corrective to ensure the supremacy of EU law both at the regional and national levels.

In EU law the principle of direct effect allows for dual vigilance at the national and regional levels. Without the principle of direct effect, EU law could have only been efficient according to the constitutional rules of the national legal systems of Member States. Accepting this doctrine, thus allows for uniformity and effectiveness of EU law.

Conversely, in the RTC, there is no mention of this principle. However, there are provisions in the RTC which signify that direct effect is again neither necessary nor possible in the CARICOM treaty.36 This is because under the RTC direct challenges by individuals are capable of being brought before the CCJ.37 CARICOM also does not have the legislative mechanism which enables Community law to be automatically part of the domestic law of Member States. In the event, the doctrine of direct effect allowed for rights to be enforced at a national level all members of CARICOM would be able to adjudicate these claims in their domestic court. It can be noted that the formation of the new legal order enforced before national courts suggests that Community law is supreme.38

In the case of Trinidad Cement Limited v CARICOM, 39 the CCJ indicated that member states had created a new regime with the RTC establishing the rule of law and creating legal accountability. Because of these developments, it can be noted that the doctrine of direct effect is already within Caribbean Community law at the regional level. Additionally, the implementation of direct effect acknowledges significant benefits that would encourage its adoption. It can be stated that for the CCJ to adjudicate all individual claims under the RTC would increase the capacity of the caseload. As such the implementation of the doctrine of direct effect at the national level would assist with the challenge of having to adjudicate numerous cases.

Granted, the CCJ is the main mechanism for treaty obligations, but the challenge arises that this body is the sole interpreter of the rights granted under the treaty. In seeking to retain a balance between the interpretation of national law and regional law the CCJ retains the right to provide

36 Berry DS, Caribbean Integration Law (Oxford University Press 2014) 208

37 RTC Arts 211(1)(d) and 222

38Van Gen en Loos Test. The elements for the test are 1. Clear and precise provision 2. Unconditional 3. Capable of creating rights for individuals.

39 [2009] CCJ 2 (OJ) (2009) 74 WIR

advisory opinions40 and referrals 41 Therefore, if there is a conflict between a right that has been granted under the treaty and internal law, the principle of supremacy would highlight that the right from the treaty would prevail42 in which a State may require national law to be disapplied.43

Another challenge that is likely to arise for CARICOM to fully adopt the direct effect approach as most member states have dualist legal systems. The varying systems, therefore, allow different rights in each legal system causing different levels of obligations to be accepted by States.44 Moreover, the principle of direct effect allows for rights at the regional and national levels to be uniform, this uniformity, implies that supremacy alone is incapable of solving the conflicts in the law.

Pre-emption- CARICOM Approach

In CARICOM, this principle is not readily adopted which can be contrasted with the EU. Within CARICOM, regional organisations retain full competence regarding the creation of legal obligations.45 Moreover, CARICOM organs require transformation under Article 240 of the RTC. In the event that the doctrine of supremacy was adopted, pre-emption would also be, signifying that the principle of supremacy is not a standalone doctrine.46 Nonetheless, it is for the CCJ and Member States to decide if these principles are necessary to resolve conflicts with national and Community law, but these are to be further developed.

State Liability- CARICOM Approach

The CCJ has formally adopted the principle of State liability from EU law, which was highlighted in the case of Trinidad Cement Limited and TCL Guyana Inc v Guyana. 47 This case was the first time, the issue of a State being sanctioned arose before the CCJ for the breach of the RTC. Like the other doctrines, the RTC contained no specific provisions dealing with sanctions for the breach

40 Article 212 of the RTC

41 Article 214 of the RTC

42 Variola v Amministrazione delle Finanze [1973] ECR 981; Fundamental principle that the Community legal system is supreme.

43 Case C-287/98 Luxembourg v Berthe Linster and Others [2000] ECR I-6917.

44 Berry DS, Caribbean Integration Law (Oxford University Press 2014) 203

45 Berry DS, Caribbean Integration Law (Oxford University Press 2014) 220.

46 Krislov S, Ehlermann C-D and Weiler J, “The Political Organs and the Decision-Making Process in the United States and the European Community” Integration Through Law, Volume 1: Methods, Tools and Institutions, Book 2: Political Organs, Integration Techniques and Judicial Process

47 [2006] CCJ 5 (OJ) 20 August 2009.

of the RTC provisions. However, the Court noted that one of the grounds for the State liability in the EU on the basis of Article 4(3) of the TEU which was almost identical to Article 9 on the General Undertaking and Implementation of the RTC.48 As such, the Court acknowledged the existence of the principle of State liability as a principle of CARICOM law. It can be noted, the CCJ adopting the approach would suggest that it may derive general principles of CARICOM law without any clear textual support from the RTC such as the doctrines of supremacy, direct effect and direct applicability if so required.

However, the doctrine has readily been adopted by the CCJ the burden of proof to establish State liability in individual cases may substantially limit the effectiveness of the general principle.49 Here, the challenge appears to be the burden of proof which will be the same for all CARCIOM Member States.

It can be noted that the doctrine of supremacy would allow for Member States to be held accountable for breaches under the RTC. In other words, if the RTC is the supreme law and there is a breach it is essential that there must be compensation. Again, within this principle it can be noted that the doctrine of supremacy is incapable of application on its own.

Administrative Implementation of Community Law- CARICOM Approach

Administrative implementation as used by the CCJ, describes the way a state official will implement Community law within the national systems even in cases where is no legislation or there is conflicting legislation. In the case of Maurice Tomlinson v Belize and Trinidad and Tobago50 Tomlinson challenged both the national immigration laws of Belize and Trinidad and Tobago as these laws prohibited homosexuals from entering the countries. Tomlinson’s claim failed as the Court held that Tomlinson had no valid reason to assume that his rights will not be respected by the States. In reaching this conclusion, the Court interpreted the national laws in conformity of RTC. Here, it can be mentioned that there was a discord between the administrative of practice and the literal meaning of the legislation as Tomlinson was not refused entry on the basis of his sexual orientation. This case can be used to support the doctrine of supremacy of Community law as national law was interpreted in accordance with the RTC. This conform

48 Berry DS, Caribbean Integration Law (Oxford University Press 2014) 221

49 Berry DS, Caribbean Integration Law (Oxford University Press 2014) 223

50 [2016] CCJ 1 (OJ)

interpretation is also known as indirect effect. However, this case can be also used as an obstacle for supremacy as States are excused for the non-transformation of the RTC and decisions of organs of CARICOM 51 In other words, States are allowed to dismiss their obligations under the RTC as there is no enforcement mechanism which mandates for transformation of Community law.

As previously mentioned, direct effect, direct applicability, pre-emption, State liability and supremacy doctrines are interrelated. Therefore, for the principle of supremacy to predominate in resolving the conflicts between national and Community law it must extend its boundaries.52 Consequently, the view that supremacy is the sole mechanism to resolve conflicts is erroneous. For the CCJ to embrace the concept of supremacy of Community law it is imperative to incorporate the doctrines of direct applicability, direct effect, and pre-emption. Currently, the principle of supremacy does not pose a significant threat to the sovereignty of Member States since legal acceptance is a core criterion, but this is to be disputed if the doctrine of supremacy is accepted. 51 Shanique Myrie v Barbados [2013] CCJ 3 (OJ) 52 Wyatt and Dashwood’s European Union Law, 6th edn, 2011, Oxford: Hart Publishing. 279.

Restrictions on the Protection of Freedom of Expression for Public Servants: The Case of Barbados

Tyrique Wilson

Abstract

Questions of constitutionality surfaced with great fervour, following reports that charges had been levied against two candidates in the 2022 general election for breaching Barbados’ Code of Conduct and Ethics of the Public Service Act, and the General Orders.

Although landslide election victories (where a single political party wins all of the seats in the upper house) are issues not new to territories such as Grenada and St. Kitts, in the case of Barbados this is an anomaly. The constitutional norms which were compromised had to be considered. Issues of Constitutional Electoral Law which had not previously been considered fell under great scrutiny; particularly those relating to public servants’ participation in political discourse.

The above-mentioned now provides an avenue through which the constitutionality of the restrictions on the freedom of expression for civil servants can be examined; and where suggestions for its reform may be advanced.

I. Introduction

Since the establishment of the Caribbean Court of Justice, the Commonwealth Caribbean has seen the growth of indigenous jurisprudence; to which Electoral Law is no stranger. Notwithstanding the leading case of Ventose v CEO, 53 the region has yet to see an extensive treatise on Electoral Law and its relationship to written and unwritten constitutional principles; and in particular, the legal restrictions had on the freedom of political expression for civil servants.

The January 2022 General Elections in Barbados saw yet another landslide victory, with a single political party gaining all the seats in the lower house. Albeit a repeat of the outcome of the January 2018 General Election, on this occasion, two candidates who at the time were members of the civil service faced disciplinary charges for breaches of the Public Service Act (PSA) and the General Orders of Barbados. These, pithily, ban civil servants from participating in any form of political expression, save in select circumstances with the expressed consent of the Minister in charge of the ministry in which the civil servant is employed.

Following the above-mentioned, the preeminent legal question to be answered is this: are these provisions which bar members of the civil service from “participating in or being candidates in the political process” inherently unconstitutional?

This paper will first explore the evolution of the public service in Barbados. Thereafter, it will take a cursory glance at the right to freedom of expression, with emphasis on political expression, devolved by Barbados’ Constitution. Thereafter, it will look at the legal restrictions imposed on this freedom by the PSA and General Orders. It will then analyse the case law on the point, concluding with proposals for legislative reform.

II. The Evolution of the Public Service in Barbados54

Early Framework: Post-Emancipation Adaptations

The advent of the public service regimes in Barbados can be traced to the devolution of colonial power that was had in the region’s post-emancipation era.

53 [2018] CCJ 13 (AJ)

54 This section relies heavily on: Kenny Davis Anthony, ‘Aspects of the Law of the Barbados Public Service’ (LLM thesis, University of the West Indies 1985)

Emancipation in 1838 meant that the ex-slaves formerly regarded as a special kind of property55 were now endowed with “new” legal rights. Thus, it required adjustments in every sector and facet of Barbadian life56 if the ex-slaves were to be properly integrated into an evolving scheme of governance. Naturally, this included the expansion of services at the national level57 to which the public service garnered no exception.

The framework used to govern this ever-expanding public service followed a recommendation from an 1854 report by Trevelayn and Northcote to the English Parliament on the reform of the British Civil Service. They recommended, inter alia, that competitive examinations replace patronage in appointments; that mechanical work should be distinguished from intellectual work; that a unified system of appointment should be introduced; that inter departmental promotions be instituted; that reports on serving officers be submitted regularly; that promotion should be by merit and increments of salary be conditional on satisfactory work.

These recommendations were aspirational given that West Indian societies were still stratified on race and class which prevailed during the colonial era. This made it exceedingly difficult to transpose the more objective recommendations made by Trevelayn and Northcote. Nonetheless, these regulations soon transcended from the metropole to its colonial territories. The United Kingdom introduced, in 1867, a regime of Colonial Regulations58 to govern the appointment, discipline, dismissal and other conditions of service of colonial public officers.

Appointments

For purposes of control over appointments, dismissals and discipline, offices were classed under three heads: those whose emoluments did not exceed 100 pounds per annum, those with emoluments between 100-200 and those above 200.59

55 E.V. Goveia, “The West Indian Slave Laws of the 18th Century” in Chapters in Caribbean History 2, Caribbean University Press, 1970, at p. 25

56 Kenny Davis Anthony, ‘Aspects of the Law of the Barbados Public Service’ (LLM thesis, University of the West Indies 1985)

57 Ibid

58 Great Britain, Rules and Regulations for Her Majesty’s Colonial Service, London, H.M.S.O., 1867

59 Ibid, Reg. No. 66

In the case of the former, the Governor possessed “absolute disposal”60 of the appointment, subject to reporting it by “the first opportunity [to the Secretary of State]”.61 In the class of appointments carrying 100-200, the Governor was required to report any appointment to the Secretary of State together “with the name and qualification of the person whom he has appointed to fill it previously and intends to fill it following which recommendation is almost uniformly followed.”62 For the latter, the Governor was required to inform the selectee that he holds the office provisionally “until his appointment is confirmed or suspended by Her Majesty”.63

Suspensions and Dismissal

Provisions made for suspension and dismissal, ostensibly, attempted to adhere to the rules of natural justice; although the application of the rules varied according to the class of appointment.64 When the officer in question held an office which exceeded emoluments of 100 pounds, the offence with which he was charged had to be “communicated to him in writing” with the grounds on which it rested. The affected officer was also required to answer the charge in writing.65

If after the explanation the need for suspension arose, then the matter was referred to the Executive. Council and the affected officer had to “defend himself before the Council orally or in writing or as such Council [might] determine.”66 If the Executive Council upheld a suspension, the Governor was required to submit all relevant materials to the Secretary of State who could “confirm or disallow the same.”67

The regulations insisted on the right to be heard. Thus, “no suspension: from office or stoppage of salary was permitted unless such defence had been received and considered”68 except if the party

60 Ibid, Reg. No. 68: It must be noted that while the governor had the liberty to recommend a candidate for the final appointment, it was understood that the Secretary of State had the “power of recommending another instead.”

61 Ibid, Reg. No. 67

62 Ibid, Reg. No. 68

63 Ibid, Reg. No. 68

64 Kenny Davis Anthony, ‘Aspects of the Law of the Barbados Public Service’ (LLM thesis, University of the West Indies 1985)

65 Reg. No. 84 Great Britain, Rules and Regulations for her Her Majesty’s Colonial Service, London, H.M.S.O., 1867

66 Ibid

67 Ibid, Reg. No. 86

68 Ibid, Reg. No. 87

defaulted in furnishing it when called upon. Where the offence was serious, the officer involved might be provisionally interdicted, but no officer could be formally suspended except by the proceedings described above.69

However, lesser protection was given to those in the lowest class of emoluments. Where a servant in this category was charged, the grounds of dismissal had to be stated and investigated with the aid of the Head of Department and later “communicated to the person inculpated in order that he may be able to defend himself”.70 Dismissal however, did not require confirmation of the Secretary of State.71 Therefore, equality of proceedings and equality of access to the final appellate authority – the Secretary of State, was not afforded to the lowest paid civil servants.72

In light of the foregoing, this period has been characterized as “monolithic and centralized”73 as the Governor had almost sole jurisdiction over public servants74; which often came with little legal redress.75 This period of post-emancipation adaptation, however, saw a rapid expansion in the size of the public service which actuated a refinement in the legal control over the activities and behaviour of public officers.76

Pre-Independence Reformations: Public Service Commissions

The social and political unrest in Barbados77 saw the commission of Lord Moyne, and others, to enquire, report and make recommendations on all aspects of Caribbean life. Although little recommendations were made specifically for the public service, this period saliently saw the introduction and institutionalization of Public Service Commissions.28 These Commissions were

69 Ibid, Reg. No. 86

70 Ibid, Reg. No. 87

71 Ibid

72 Kenny Davis Anthony, ‘Aspects of the Law of the Barbados Public Service’ (LLM thesis, University of the West Indies 1985)

73 Ibid

74 Infra, at pp.2-3

75 Kenny Davis Anthony, ‘Aspects of the Law of the Barbados Public Service’ (LLM thesis, University of the West Indies 1985): Enforceable legal rights against the Crown by public officers in respect of matters arising out of the course of employment were extremely limited. Legally, the Crown's power to dismiss its employees without notice, without a hearing, and without cause became entrenched. Its servants had no remedy at common law certainly not for wrongful dismissal.

76 Kenny Davis Anthony, ‘Aspects of the Law of the Barbados Public Service’ (LLM thesis, University of the West Indies 1985)

77 See F.A. Hoyos, Barbados, A History from the Amerindians to Independence, Macmillan Education Ltd., London, 1978, Chap. 16 28 Kenny Davis Anthony, ‘Aspects of the Law of the Barbados Public Service’ (LLM thesis, University of the West Indies 1985)

curated out of the English Civil Service Commission, which had been assigned “powers of control over nearly all admissions to the Civil Service”.78 It naturally followed that its role was to protect “the English public from unfit appointees”79 by testing the qualifications of persons entering the public service.

This was an attempt to decentralize the power had by the colonial Governor in the postemancipation era. It was an attempt to bolster the integrity of the Public Service by giving it competency outside the ambit of the political executive. Sir Maurice Holmes noted that “with the broadening of the constitutional bases of those colonies, steps will need to be taken to safeguard civil servants against the introduction of political considerations in matters affecting their professional careers;80 such that “no question of nepotism or political wire pulling can arise.”

81 This ideological underpinning made it clear that the Commission was not seen as an instrument of management but rather as a body to protect public officers and the public service against political control and influence. Seemingly, it was effective as Cheltenham noted that by 1954 the impartiality of the Public Service Commission was well established.82 It equally reflected Trevelayn’s and Northcote’s recommendation to replace patronage in appointments with competitive examinations.83

Cabinet Governments

When Cabinet Government was eventually introduced in 1958, further impetus was given to rationalizing the mechanism for appointing all public officers.84 This appeared to be an attempt to further bolster the independence of Public Service Commissions. In 1962, service commissions for the judiciary and the police were now creatures of statute. Pre-eminently, the constitution of

78 I. Jennings, supra, n. 9 at p. 131

79 B.A.N Collins, “Some Notes on Public Service Commissions in the Commonwealth Caribbean” (1967)

16:I

S.E.S I, at p. 2

80 Sir Maurice Holmes (Chairman), Report of the Commission on the Unification of the public Services of the Public Services of the British Caribbean Area, 1948-49, at p. 43

81 Ibid

82 R.C Cheltenham, Constitutional and Political Development of Barbados, 1946-1966, Ph.D. Dissertation (unpublished) University of Manchester, 1970.

83 Infra pp5

84 Kenny Davis Anthony, ‘Aspects of the Law of the Barbados Public Service’ (LLM thesis, University of the West Indies 1985)

the Public Service Commission had also changed. The 1951 Public Service Commission Act was repealed and replaced with a “new” commission which had independent executive power.

It comprised a chairman and not less than three nor more than five other members85 were to be appointed by the Governor "acting in his discretion.”86 Power to make appointments, including appointments on promotion or transfer to public offices; and power to discipline and dismiss public officers; was vested in the Governor General "acting on the recommendation of the Commission.87

The Act, however, did not apply to the Governor's staff, judges of the Supreme Court, Attorney General, Police, Fire Service and certain other officers specified by the Judicial and Legal Services Commission Act.88

Provision was also made for the Commission to delegate its power – the Governor acting on the recommendation of the Commission, may by instrument under the public seal delegate the functions of the Commission to appropriate functionaries.89

Likewise, the Judicial and Legal Service Commission was entrusted with analogous powers and protection though its constitution and jurisdiction differed. Its membership comprised the Chief Justice as Chairman, the Attorney General, the Chairman of the Public Service Commission or his nominee and "not more than two other members.90

The Commission's jurisdiction was limited to the appointment, promotion, transfers,91 dismissal, and disciplinary control92 of Puisne Judges, Crown Solicitor, Magistrates, Registrars, Solicitor General, Assistant to the Attorney-General, Crown Counsel, Legal Draftsmen and Provost Marshal.93

85 S. 3(10 Public Service Commission Act, No. 25 of 1961, Laws of Barbados, 1961, Pt.1

86 Ibid

87 Ibid s.11 a. 12 (1)

88 Ibid, s. 11(3) (a)-(g)

89 Ibid, s 15(1)

90 S 3(1)(2), The Judicial and Legal Service Commission Act, No. 26 of 1961, Laws of Barbados, 1961, Pt.1

91 The Judicial and Legal Service Commission Act, supra, n. 139 at s. 12 (1)

92 Ibid, s. 14(1). Note that under s. 81(1) of the Constitution as amended in 1974 by Act No. 34 of 1974, Puisne Judges are now appointed by the Governor General "on the recommendation of the Prime Minister after consultation with the leader of the Opposition."

93 Ibid, s. 12 and Second Schedule

Again, jurisdiction over these functionaries was vested in the Governor General "acting on the recommendation of the Commission.”94

These changes completed the shift on the locus of control over the Barbadian Public Service.95 The Barbadian Public Service, though shaped by the law, customs, and practices of its British mentor, was now placed in the hands of a native political and administrative class.96 Most importantly, effective strides were made to establish the civil service as independent from and impartial to the political directorate.

Independence Developments: Constitutional Provisions and General Orders

Barbados’ contemporary legal framework has seen the regulation of the public service ascend from mere “directions”97 to Constitutional Status. Sections 89-106 of Barbados’ Independence Constitution98 absorbed, with some amendments, the provisions above-mentioned, and more, for service commissions.

The Constitution also enshrined fundamental rights and freedoms for all persons, including public officers in respect of their freedom of expression,99 movement,100 assembly and association.101

It introduced a local Privy Council and gave it jurisdiction to hear appeals of aggrieved public officers from decisions of service commissions. The Governor-General was required "so far as is practicable to attend and preside at all meetings of the Privy Council.102 The Constitution also sought to define those persons deemed to be public officers.103

This constitutional regulation has been bolstered by the General Orders. These orders provide, inter alia, the appointment, recruitment, transfer and secondment for public officers; and salaries,

94 Ibid, s. 12(1); s. 14(1).

95 Kenny Davis Anthony, ‘Aspects of the Law of the Barbados Public Service’ (LLM thesis, University of the West Indies 1985)

96 Ibid

97 Shenton v Smith (1895) App. Cas. 229

98 The Barbados Constitution Order, 1966.

99 Ibid, s. 20(1) (2) (c).

100 Ibid, s. 22(3)(f).

101 Ibid, s. 21(1) (2) (c).

102 Ibid, s. 77(2)

103 Ibid, s. 117(1)(7)

allowances and other payments. Saliently, it makes a differentiation between different types of public servants, an area which will be explored in a later chapter.

III. Freedom of Expression in the Commonwealth Caribbean

Commonwealth Caribbean constitutions are a primary source of human rights guarantees.

104 Flowing naturally from the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), which Commonwealth Caribbean constitutions are substantively modelled after, the Bill of Rights found in Barbados’ Constitution bares no exception when we seek to characterize those that are “conventional”.

105 These Bills of Rights contain two features:

The opening section is a general guarantee of rights that typically begins,

“Whereas every person in… is entitled to the fundamental rights and freedoms, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely…”

The enumeration of specific rights such as the right to life, personal liberty, freedom of expression, conscience, movement, and assembly and association; protection from discrimination, slavery and forced labour, inhuman treatment, deprivation of property and arbitrary search or entry are found in the detailed section of the Constitution, thereafter with limitations to those rights specified.

The right to freedom of expression is contained in section 20 (1) of the Constitution of Barbados. It reads as follows:

“Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this section the said freedom includes the freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference and freedom from interference…”

Whilst this clause does not exhaustively define freedom of expression, the words “opinions”, “ideas”, “information” and “communication” can be seen to emphasize expression as an

104 Robinson, Bulkan & Saunders: Fundamentals of Caribbean Constitutional Law (1st edn, Thomson Reuters 2010)

105 Tyrique Wilson, 'A Constitution Fit For Changed Status' The Nation (Barbados, 9 November 2021)

ideological vehicle and not expression merely as an act or behaviour.106 It seeks to preserve what is vital to a free society wherein the right to speak, to propagate and to circulate ideas belong to everyone and will be protected for everyone subject only to the qualifications under the very article itself. 107

The rationales for freedom of expression may therefore be placed within 3 categories, according to Demerieux,108 namely: the consequentialist or utilitarian, those premised on individual realization, and those which see freedom of expression primarily as a part of the structure or process of democratic government.109 The latter will be the focus of this section.

The “democratic government” justification conceives freedom of expression as the indispensable condition for self-government and the functioning of democratic institutions”110 This justification may be more specifically categorized as “political expression”.

This rationale acknowledges the role of free expression in promoting democracy and good government – it enables the public to be informed, it allows the dissemination of facts, ideas and comment, themselves shaped by free discussion, it enables the electorate to make informed choices, and it even provides an outlet for hostilities that might otherwise erupt in more dangerous ways. In Hill v Church of Scientology111 the Canadian Supreme Court cautioned that:

“Without this freedom to express ideas and to criticize the operation of institutions and the conduct of individual members of government agencies, democratic forms of government would wither and die...”

Further, in Hector v A-G of Antigua and Barbuda112 Lord Bridge noted:

“

In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.”

106 Margaret Demerieux, Fundamental Rights in the Commonwealth Caribbean Constitutions (1992)

107 Janet Jagan And Another v Linden Forbes Sampson Burnham (1973) 20 WIR 96

108 Margaret Demerieux, Fundamental Rights in the Commonwealth Caribbean Constitutions (1992)

109 E. Barendt, Freedom of Speech (Oxford: Clarendon 1985) Ch. 1

110 Per, Cardozo J., in Palko v Connecticut 302 U.S. 319 (1937)

111 (1995) 126 DLR (4th) 129

112 [1990] 2 AC 312

Both dicta illustrate the courts’ position that the right to freedom of expression serves democracy by allowing the articulation of views of groups within society and by the recognition of the need to have governmental authority offered up to scrutiny.113

Limitations

It is trite to say that no right is absolute.67 Constitutionally guaranteed rights and freedoms, although enormous, are limited in circumstances where one, in exercising his/her right, prejudices those of others. Evidently, the right to freedom of expression, not excluding political expression, garners no exception when we envisage those circumstances where the law might limit the extent to which one can exercise a right.

The statement of the rights in the conventional model is usually followed by a limitations clause. In the Barbados Constitution, the limitation clause appended to the right to freedom of expression reads as follows:

“

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision-

(a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health; or

(b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts or regulating the administration or technical operation of telephony, telegraphy, posts, wireless broadcasting, television or other means of communication or regulating public exhibitions or public entertainments;

(c) or that imposes restrictions upon public officers or members of a disciplined force.”

113 Margaret Demerieux, Fundamental Rights in the Commonwealth Caribbean Constitutions (1992)

The presence of the clause is significant when specific regard is had to political expression as the courts are often made to engage analyses of the “reasonableness” of its fettering. The case of Vieira Communications Ltd v A-G of Guyana114 is instructive.

In that case, the appellant VCT, a company incorporated in Guyana, operated a television broadcast network.115 It applied to the National Frequency Management Unit (NFMU), a public corporation, for a licence to operate a commercial FM radio station. The NFMU failed to acknowledge receipt of VCT's application, and no reason was advanced for its refusal to reply. 116

The NFMU later detected an audio transmission being broadcasted on 100.5 MHz. It investigated and found that the broadcast was being transmitted from an antenna belonging to VCT. Thereafter, the Prime Minister wrote to an officer of VCT stating that the 'the question of opening up radio (audio) to various non-Governmental and private organisations is a matter being pursued even now by … the Committee on Radio Monopoly, Non-Partisan Boards and Broadcasting Legislation117 . That officer of VCT was charged118 with the offence of unauthorised use of wireless telegraphy, contrary to s 63(3) of the Post and Telegraph Act.

VCT then commenced proceedings by originating notice of motion in the High Court, seeking, inter alia, a declaration that the refusal by the respondents to grant a licence to the appellant for radio broadcasting without constitutional justification, while at the same time licensing or permitting state owned corporations to broadcast, was a contravention of the appellant's right to equality of treatment and protection of the law as provided by Article 40 of the Guyanese Constitution. A declaration was also sought that the treatment of the appellant in a discriminatory manner contravened the appellant's fundamental rights guaranteed by Article 149. This motion was dismissed and VCT appealed.

The Board in the Privy Council held that in all the circumstances, the NFMU had discriminated against the appellant by failing to grant it a radio broadcast licence while it granted licences for the operation of three government controlled radio stations, in contravention of its fundamental rights guaranteed by Articles 149D(1) and (2) of Guyana’s Constitution.

114 (2009) 76 WIR 279

115 Ibid at 280

116 Ibid

117 Ibid

118 This charge was later dismissed.

It further held that the radio stations in Guyana which utilised the electromagnetic spectrum were government-controlled radio stations. There were no other such radio stations in Guyana. The government-controlled radio stations had exclusive control of radio broadcast services to the people of Guyana. That constituted a monopoly on radio broadcasting in Guyana. Accordingly, the monopoly enjoyed by the government in radio broadcasting was not only unlawful but significantly restricted VCT and the people of Guyana in their ability to receive and to communicate ideas and information without interference, such restrictions not being reasonably justifiable in a democratic society. Further, the monopoly created by the government impacted unlawfully on the fundamental right of the appellant and of the people of Guyana, since the right to freedom of expression to communicate and receive information and ideas was protected not only in relation to information or ideas that were favourably received or intended to be disseminated by the government or regarded as inoffensive, or as a matter of indifference but also to those that were perhaps contrary to or different from or opposed to approved government ideas, information and119 communications that offended, shocked or disturbed;120

A cursory glance at the case law shows us that governments in the Commonwealth Caribbean often attempt to censor or monopolize the right to political speech. Perhaps, they fear the exposing of the operations of public institutions, and elected officials as it has been used as a tool through which politicians protect their own self-interests.

“

121 In fact, Professor DeMerieux notes:

…the predominance of political figures in defamation actions by itself suggests that the law of defamation is a specific tool in the hands of politicians, a matter with serious ramifications for expression as political debate.” 122

The next chapter will explore the limitations on the right to political expression, specifically for public servants, in light of the above-mentioned.

IV. Legal Restrictions on Freedom of Political Expression for Civil Servants

The unique position of the public servant, as a worker of the state, has brought him a range of legal and administrative restrictions which limit the ability of the public officer to exercise the civic

119 Ibid at 282

120 Ibid at 283

121 Janet Jagan And Another v Linden Forbes Sampson Burnham (1973) 20 WIR 96

122 Margaret Demerieux, Fundamental Rights in the Commonwealth Caribbean Constitutions (1992)

rights to which private sector workers are entitled.123 This was the position held by Vincent Floissac CJ, who pointed out in the Court of Appeal, that in every truly democratic society, the public officer or civil servant holds a unique status in many respects. As the servant or agent of the State he enjoys special advantages and protections and correspondingly must submit to certain restrictions. Their special position is recognized in the existence of a special chapter in the Constitution containing provisions relating to them and to the express provisions in sections 12 and 13 authorizing restrictions on the freedoms contained therein.124

The preservation of the impartiality and neutrality of civil servants has long been recognised in democratic societies as essential to the preservation of public confidence in the conduct of public affairs. It has been noted that, “the public interest demands the maintenance of political impartiality in the civil service and confidence in that impartiality as an essential part of the structure of government in this country”125

The importance of these characteristics lies in the necessity of preserving public confidence in the conduct of public affairs.126 That is the primary view for some restraint on the freedom of civil servants to participate in political matters and is properly to be regarded as an important element in the proper performance of their functions.

Salient are those restrictions which seek to regulate the freedom of public officers to communicate freely, especially in matters of a political and administrative character and those which more broadly control the exercise of political rights and freedoms.127

Political rights, in this context, includes the right to vote in any election and to seek election to any public office.128 It also includes the right to be a member of a political organization, and to hold office therein; the right to attend and participate in political meetings, rallies and conventions; and

123 Kenny Anthony, ‘Legal Restraints on the Civic Rights of Caribbean Public Officers’, (1983) 6:1 Bulletin of Eastern Caribbean Affairs 20 78 49 WIR 70 at page 80

124 (1998) 53 WIR 131 at 138

125 Hood Phillips, Constitutional and Administrative Law (5th edn.1973) p 299

126 Ibid

127 Hood Phillips, Constitutional and Administrative Law (5th edn.1973) p 299

128 Kenneth Kernagahan, Ethical Conduct: Guidelines for Government Employees, Toronto: Institute of Public Administration of Canada 1965 at pp 26

129

campaigning for or against political parties or candidates which includes, inter alia, the making of financial contributions; door to door canvassing and distribution of campaign materials.

In restricting the civic rights of public officers, Caribbean Governments have used three approaches, namely:

• Restrictions imposed by legislation allegedly within the parameters set by the constitution

• Restriction Imposed by “General Orders” or “Departmental Orders”

• Restrictions combining the two foregoing

In the case of Barbados, a combination of restrictions imposed by legislation130 and by “General Orders is had.

The Code of Conduct and Ethics in the Public Service Act Barbados131 provides, “officers shall not contribute to any newspapers in Barbados or elsewhere on questions that can properly be called political or administrative, but may furnish articles upon subjects of general interest”.

132 And further that, “Officers shall not give broadcast talks or engage in any discussion that is being broadcast on any subject that may properly be regarded as of a political or administrative nature, without the prior permission of the Minister concerned.”

The General Orders similarly provide:

129 Ibid

“Officers are forbidden to be editors of newspapers or directly or indirectly to take part in the management of newspapers. They are also forbidden to contribute to any newspaper in Barbados or elsewhere on questions which can properly be called political or administrative though they may furnish articles upon subjects of general interest

133

Officers and employees are forbidden to give broadcast talks or to engage in any discussion which is being broadcast on any subject which may properly be regarded as of a political or administrative nature without the prior permission of the Minister concerned.”

130 Public Service Act Barbados

131 CAP. 29 of the Laws of Barbados

132 Ibid s 24(b)

133 General Orders Barbados s. 3.11

134 Ibid s. 3.14

134

It further provides that officers and employees are expressly forbidden to participate actively in politics, including the following:

• being adopted as a parliamentary candidate;

• canvassing on behalf of any party or candidate for election to the House of Assembly;

• acting as agents or sub-agents for any candidate for election;

• holding office in party political organisations; and speaking at political meetings.135 However, a concession is granted to “casual employees” who are permitted to speak at political meetings and stand for election to the House of Assembly subject to the condition that those employees shall not engage in any political activity while on duty or on Government premises and, in the event of the election of any such employee to the House of Assembly, he shall immediately vacate his appointment in the public service.136 The legislation does not contemplate a situation where the employee is defeated and wishes to return to his/her former post.

Casual employees are persons who are employed on a casual basis in the public service and who are not public officers within the meaning of the constitution. A “public officer” means the holder of any public office and includes any person appointed to act in any such office.137 Thus, casual employees are those not appointed to act in a public office.

It has been noted that the impact of this concession is insignificant as this category of worker is not numerically large and is distant from the day-to-day administrative process.138 Further, their skill set is low, and their posts are vulnerable to abolition by administrative fiat for the posts, and their holders do not come under the protection of any Service Commission.139 These regulations owe their origin to the days of colonial control and administration.140 They were authorized by the local Governor, who was the official head of the public service, and exercised “final local discretion”141 in matters pertaining to the service.

135 Ibid s. 3.18.1

136 Ibid s. 3.18.2

137 Chapter X The Constitution of Barbados

138 Kenny Anthony, ‘Legal Restraints on the Civic Rights of Caribbean Public Officers’, (1983) 6:1 Bulletin of Eastern Caribbean Affairs 20

139 Ibid

140 L. Barnett, The Constitutional Law of Jamaica, 1977, at 103

141 Ibid

The regulations were detailed and virtually formed an internal administration code. They dealt with matters of interpretation of terms, the condition of service, disciplinary procedure, vacation leave, advances, promotions and other ancillary matters. Despite independence and other forms of constitutional advancement in the region, the origin of the regulations has imbued the extant regulations with a colonial character and bias. In practice, this has meant that the vestige of the law-and-order orientation of the colonial Civil Service continued to influence the existing regulations.142 Nowhere is this more apparent than in the restrictions under review.143

This apart, it is to be observed that these General Orders do not expressly prohibit membership of political parties by public servants. Such expression of the prohibition may well be unnecessary.144 For one, the Orders seek to prohibit “political activities.”145 The term itself is nowhere defined. One can therefore surmise that if political activities are generally prohibited, then a fortiori, membership of political parties is also intended to be prohibited, since that too must be embraced within the definition of political activity.146

In any event, the restrictions discussed above are so total and all-embracing that membership of a political party is effectively rendered superfluous.147 In other words, having become a member of a political party or organization, the public servant cannot exercise the rights of membership, for these rights are themselves heavily circumscribed.148 If mere engagement or association in political activities invites disciplinary measures, then it seem that membership cannot be seriously contemplated.149

Nonetheless, the foregoing provisions may still be analysed in their relation to the freedom of expression as guaranteed by Barbados’ Constitution. It was noted in a previous chapter that Caribbean governments may derogate from constitutionally guaranteed rights and freedoms. In the Constitution of Barbados, derogation can be had only where they "be reasonably justified" in a

142 E. Jones, ‘The Tendencies and Change in Caribbean Administration Systems’ (1975) 24 S.E.S 239

143 Kenny Anthony, ‘Legal Restraints on the Civic Rights of Caribbean Public Officers’, (1983) 6:1 Bulletin of Eastern Caribbean Affairs 20

144 Ibid

145 See marginal note to para. 3.18 of Barbados General Orders

146 Kenny Anthony, ‘Legal Restraints on the Civic Rights of Caribbean Public Officers’, (1983) 6:1 Bulletin of Eastern Caribbean Affairs 20

147 Ibid

148 Ibid

149 Ibid

democratic society. The next chapter will therefore analyse whether the above-mentioned legislative provisions which restrict freedom of expression are maintainable as intra vires of the constitution.

V. Analysing the Legal Restrictions on Freedom of Political Expression

i) De Freitas

De Freitas v Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing150 has been regarded as the leading authority in the Commonwealth Caribbean on the constitutionality of limitations on fundamental rights and freedoms 151 This case concerned a civil servant’s participation in certain [political] demonstrations in September and October 1990 against government corruption in Antigua and Barbuda. In 1990 the appellant was an Extension Officer in the Ministry of Agriculture, Fisheries, Lands and Housing of Antigua and Barbuda. In that year a Commission of Inquiry was held in Antigua relating to the transhipment into Antigua of a consignment of guns. In the course of the Inquiry various allegations of Government corruption were made. Some of these allegations were directed at the Minister of Agriculture, Mr. Hilroy Humphreys.

The appellant admitted in an affidavit that on 24th and 25th September 1990, after the Inquiry and while he was on vacation, he was one of several persons peacefully picketing the Headquarters of the Ministry. Some of the placards displayed by the appellant were critical of Mr. Humphreys.

The Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing, who is the first respondent, immediately claimed that the appellant was acting in breach of the restraints imposed on civil servants by section 10(2)(a) of the Civil Service Act of Antigua and Barbuda and threatened to refer the matter to the Public Service Commission for disciplinary action. This Act provides;

“A civil servant may not - (a) in any public place or in any document or any other medium of communication whether within Antigua and Barbuda or not, publish any information or expressions of opinion on matters of national or international political controversy”.

150 (1998) 53 WIR 131

151 Leon Natta-Nelson v The Attorney-General of St Christopher and Nevis SKBHCV2018/0254 at 11

Section 12(4) of the Antiguan Constitution provides the right to freedom of expression. It further provides a clause for derogation which states;

“Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -

(b) that imposes restrictions upon public officers that are reasonably required for the proper performance of their functions; and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

The court therefore sought to determine whether the prohibition in s10(2)(a) was ultra vires with section 12, which devolves the right to freedom of expression.152

Although recognizing the special position of public servants, and that public interest demands the maintenance of political impartiality in the civil service, the court opined, “the general proposition that civil servants hold a unique status in a democratic society does not necessarily justify a substantial invasion of their basic rights and freedoms.”153 The courts emphasized the need that a “proper balance be struck between the freedom of expression and the duty of a civil servant properly to fulfil his or her functions”154

152 (1998) 53 WIR 131 at 138

153 Ibid

154 Dickson C.J.C. in Re Fraser and Public Service Staff Relations Board (1985) 23 D.L.R. (4th) 122

The courts agreed with the dicta in Re Fraser and Public Service Staff Relations Board155156 stating;

“The act of balancing must start with the proposition that some speech by public servants concerning public issues is permitted. Public servants cannot be ‘silent members of society'… A blanket prohibition against all public discussion of all public issues by all public servants would, quite simply, deny fundamental democratic rights to far too many people.”

It further noted that all expressions critical of the conduct of a politician cannot be forbidden. It is a fundamental principle of a democratic society that citizens should be entitled to express their views about politicians, and while there may be legitimate restraints upon that freedom in the case of some civil servants, that restraint cannot be made absolute and universal.

Thus, restrictions on freedom of expression, for public servants, may only be consistent with the Constitution where they are:

1. Reasonably required for the proper performance of their functions.

2. Reasonably justifiable in a democratic society.157

When regard was had to section 10, the board was of the opinion that it was a blanket restraint on all civil servants from communicating to anyone any expression or view on any matter of political controversy158 and was therefore excessive.159 The court stated this rule applies to all civil servants without distinction so that it is left to the individual in any given circumstances to decide whether he is, or is not, complying with the rule.160 Thus, section 10(2)(a) could not survive as it stands. In coming to this conclusion, the court adopted a “three-fold”161 criteria from Nyambirai National Social Security Authority which ought to be satisfied where the legislature seeks to restrict fundamental rights and freedoms, namely:

155 (1985) 23 DLR (4th) 122 at page 131

156 (1998) 53 WIR 131

157 Section 12(4) The Constitution of Antigua and Barbuda

158 (1998) 53 WIR 131 at 139

159 Ibid at 140

160 Ibid at 141

161 (1998) 53 WIR 131 at 144

i. the legislative objective is sufficiently important to justify limiting à fundamental right;

ii. the measures designed to meet the legislative objective are rationally connected to it and;

iii. the means used to impair the right or freedom are no more than is necessary to accomplish the objective.

The Board noted the third fold, which was a question of proportionality.162

Their Lordships accepted that the first two of these criteria could be met in the case of civil servants once it is noticed that their special status, with its advantages and restraints, is recognized as proper in the administration of a free society.163 However, the third criterion raises a question of proportionality and could not be satisfied. This was because the blanket approach taken in section 10 imposes the same restraints upon the most junior of the civil servants as are imposed upon the most senior.164

The appeal was therefore allowed; the appellants showed that the restraint, with its qualification, was not reasonably justifiable in a democratic society.128 Section 10 of the Act was deemed unconstitutional.

ii) Fraser v Public Service Staff Relations Board

Regard may also be had to Fraser v Public Service Staff Relations Board.165 Here, the court noted the need for a balance to be struck between the public officer’s freedom of expression and the government’s desire to maintain an impartial and effective public service.166

This was especially so given the fact that democratic systems in the Commonwealth Caribbean are deeply rooted in, and thrive on, free and robust public discussion of public issues. Thus, as a rule, all members of society should be permitted, and encouraged, to participate in that discussion.167

162 Ibid

163 (1998) 53 WIR 131 at 144

164 (1998) 53 WIR 131 at 144

165 [1985] 2 S.C.R. 455.

166 Ibid at [30]

167 Ibid at [37]

The court emphasized that an absolute rule prohibiting all public participation and discussion by all public servants would prohibit activities that no sensible person in a democratic society would want to prohibit. The Supreme Court accepted that a public servant is required to exercise a degree of restraint in his or her actions relating to criticism of government policy, in order to ensure that the public service is perceived as impartial and effective in fulfilling its duties.168

iii) Leon Natta-Nelson v The Attorney-General of St Christopher and Nevis

The more recent case of Leon Natta-Nelson v The Attorney-General of St Christopher and Nevis169 is equally instructive on the point. The claimant was employed as an accountant in the Customs Department in the Ministry of Finance. He had political aspirations and wished to compete as a candidate for the St. Kitts-Nevis Labour Party (the Labour Party) against the Prime Minister, who was the incumbent representative for the constituency of St. Kitts. However, the claimant claimed that the provisions of Rules 36 and 38 of Public Service (Conduct and Ethics of Officers) Code, SRO No. 9 of 2014 (the Code) stood in his way. These provisions similarly provided the General Orders and PSA of Barbados, above mentioned.

The court was therefore made to decide whether these provisions were intra vires section 3(b) of the Constitution of St. Kitts and Nevis, which devolves the right to freedom of expression, and section 12(b) which provides that restrictions may be had on public officers where they are reasonably required for the proper performance of their functions, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

The Court followed the decision of Osborne v Canada (Treasury Board), 170 noting that legislation that “bans all partisan-related work by all public servants, without distinction either as to the type of work, or as to their relative role, level or importance in the hierarchy of the public service” is unconstitutional.

It equally followed the decision in De Freitas v Permanent Secretary of the Ministry of Agriculture, Fisheries, Land and Housing, 171 which held that a “blanket restraint on all civil servants from

communicating to anyone any expression of view on any matter of political controversy” was excessive. It further noted that in De Freitas, the court ruled that public officers must be able to express their views about politicians and their policies and to participate in and run for political office.172 Thus, Rules 36 and 38 of the Code were deemed unconstitutional.173

172 SKBHCV2018/0254 at [86]

173 Ibid at [84]

Discussion

The case of De Freitas established the test to be used when a court seeks to determine whether limitations on rights are constitutionally intra vires. This “three-fold” criteria make it that any restrictions on fundamental rights and freedoms are compatible with the constitution if:

i. the legislative objective is sufficiently important to justify limiting à fundamental right;

ii. the measures designed to meet the legislative objective are rationally connected to it; and

iii. the means used to impair the right or freedom are no more than is necessary to accomplish the objective.

In De Freitas, Fraser and Leon Natta, the courts conceded that laws which restrict freedom of political expression on civil servants is prima facie justifiable at law. This view is rooted in the ideology that an effective civil service must not be politically partial, thus, degree of restraint in his or her actions relating to criticism of government policy must be had.174 Perhaps may be better explained using the doctrine of separation of powers.

Regarding the delineated provisions of the PSA and the General Orders, it is evident that they inherently and excessively limit the protection of freedom of expression the Constitution of Barbados. However, an analysis that employs the separation of powers doctrine may be used to justify their existence.

A standard perception of this doctrine posits it as a principle of good governance, partly comprising the rule of law, which ensures the separation of executive, legislative and judicial powers. Its proponents seek to ensure that no one person or body is permitted to exercise more than one of these powers. Despite it being a fundamental component in the Westminster system of government we enjoy to this day, this superficial view often disguises its brevity. An oftenoverlooked tenet of this doctrine is the intra-branch separation of the executive.

A professional civil service is the cornerstone of an effectively performing public sector. A professional civil service serves the interests of the state, not the incumbent government.175 The civil service is required to be politically impartial with equal commitment to serve governments

174 [1985] 2 S.C.R. 455.

175 Tyrique Wilson ‘Points of Law: Civil Servants in Politics’ Barbados Today (Barbados, 25 April 2022) 16

of all political persuasions. Politicisation is generally seen as the primary impediment to successful administrative development as it runs contrary to these principles.176

Thus, it follows that the intra-branch separation of the executive mandates a separation between the political directorate (Members of Cabinet) and “ordinary” members of the civil service. Caribbean constitutions have attempted to establish this separation via mechanisms that provide heightened security of tenure aimed at mitigating political influence on those public servants. This notion was affirmed in Thomas v AG where it was explained that these chapters are aimed at “insulating members of the civil service from the political influence exercised directly upon them from the government”.

This was credence in De Freitas¸ which was followed by Leon Natta, where the court recognized that the special position of public servants, and that public interest demands the maintenance of political impartiality in the civil service, it becomes axiomatic that the delineated provisions of the PSA and the General Orders are mere legislative expressions of this doctrine.

Notwithstanding the foregoing analysis, Commonwealth courts have recognized and understood that if we are not to jeopardize democracy, of which political participation is a fundamental component, it would be incongruous to allow “blanket” restrictions such as those contained in our PSA and General Orders to preclude all civil servants from engaging any political activity. As it was said in Fraser and followed by Leon Natta, “our democratic system is deeply rooted in, and thrives on, free and robust public discussion of public issues. As a general rule, all members of society should be permitted indeed encouraged, to participate in that discussion”.

Thus, justifications properly founded do not preclude laws from being deemed unconstitutional, particularly where limits on constitutionally guaranteed freedoms are excessive and unreasonable. Notwithstanding the above-mentioned, a balance ought to be struck between the public officers’ freedom of expression, and assembly and association, and the Government’s desire to maintain an impartial and effective public service.

It is for this reason that the courts concluded that although these justifications are legally valid, they fail on the element of proportionality. That is to say that the limit on civil servant’s freedom of expression, imposed by PSAs and General Orders, is excessive and unreasonable to maintain

an impartial civil service. Thus, any rule which prohibits all public participation and discussion by all public servants is not in congruence with a democratic society. These comments were made bearing in mind a point made by Redhead J. who noted that in the United Kingdom there are classes of civil servants related to the seniority of the posts which they fill and a distinction is made between the classes as to the extent of any restraints imposed upon them in regard to their freedom of political expression.177 Simply put, restrictions made on the right to freedom of expression must be directly proportional to ones rank (and functions) in the civil service.

This reasoning must now be applied to the PSA and General Orders in Barbados. When regard is had to the relevant provisions of the Public Service Act of Barbados and the General Orders, the provisions restricting the freedom of expression bare almost complete semblance to those contemplated in De Freitas and Leon Natta-Nelson. It follows those sections 24(b) of the PSA and sections 3.11 and 3.18.1 of the General Orders would equally be deemed unconstitutional by local courts. They put an unreasonable and excessive restraint on civil servants’ ability to exercise their right to freedom of expression, with one caveat. It is arguable as to whether section 24(e) of the PSA and section 3.14 of the General Orders would be so deemed. These provisions have not dealt a death blow to civil servants’ participation in political activity. They allow the expression of political views with the prior permission of the Minister concerned. If a Minister were to unreasonably refuse permission, redress can be had via an entirely separate, administrative, action. Evidently, these provisions do not put a ‘blanket restrain on all civil servants from expressing views on political matters.’ In no absolute terms, it follows that section 24(e) of the PSA and section 3.14 of the General Orders may withstand judicial scrutiny.

VI. A Case for Reform

Although civil servants enjoy a unique position in the Westminster system of government; a characteristic of which sees him endure legal restrictions on the exercise of his civic rights, the Privy Council in Fraser and De Freitas, and the Eastern Caribbean Supreme Court, have asserted that legislation which puts an absolute prohibition on all civil servants right to engage political speech is disproportionate and therefore unconstitutional. The legislature’s desire to

maintain the independence of the ordinary civil servants from the political directorate, albeit justified when regard is had to the separation of powers doctrine.

If freedom of expression is not to be excessively circumscribed, by extension if democracy is not to be jeopardized, it is imperative that we revisit and amend structural barriers to equitable participation, especially where they are constitutionally offensive. The following recommendations are proposed:

i) The Moldovan Solution

The Moldovan Civil Servants’ Code of Conduct lends us a helping hand on this issue. Article 5 of this Code prohibits public officers from engaging in political activity only during the performance of their duties. It is therefore submitted that the delineated prohibitions in Barbados’ PSA and General Orders may remain with the added precondition that a public officer is simultaneously performing his/her duties. This can be bolstered with a provision which demands that civil servants’ political affiliations do not influence their conduct and decisions.

Ostensibly, however, the Moldovan solution may not be able to remedy the prohibition on civil servants’ capacity to be adopted as parliamentary candidates. A parliamentary candidate remains a parliamentary candidate until an election is concluded, or, until he/she withdraws. Any attempt to separate an active civil servant from the continuous act of being a parliamentary candidate would be an exercise in futility. Incidentally, a remedy can be found within Section 3.18.2 of the General Orders. This provision can be amended for an application to all civil servants.

ii) The Solution in Canada and the United Kingdom

In Canada, and the UK, restrictions on fundamental rights do not apply to all grades and positions as is the case in Barbados. Rather, restrictions on political rights are based on position, grade and influence on the public officer. The same may equally be said for teachers. This approach recognizes that certain sections of the public service such as messengers and typists are far removed from policy and as such do not require political impartiality to the extent of higher ranked public servants such as permanent secretaries. In fact, this type of approach was alluded to in Leon-Natta Nelson where the courts expressly mentioned that legislation that “bans all partisan related work by all public servants, without distinction either as to the type

of work, or as to their relative role, level or importance in the hierarchy of the public service” is unconstitutional.178

As democracy grows and transforms, it is necessary for Commonwealth Caribbean jurisdictions to amend laws which are constitutionally incompatible, particularly where they affect many persons on something as fundamental as democratic participation. These practical solutions strike a proper balance between the limit on civil servants’ freedom of expression whilst maintaining a reasonably separated executive; and promote necessary participation in democratic processes.

Nevis Island Administration v Ocean Reef Resorts Ltd.

Kamau Grant

Abstract

This article examines the recent Eastern Caribbean Supreme Court decision NIA v Ocean Reef Resorts Limited which arguably stripped the governing body on the Island of Nevis of its juridical standing. I argue that the Court’s decision was flawed by foremost critically examining the procedural propriety of the Court to raise the question on its own motion as a preliminary issue contrary to the wishes of the parties. The article raises issues of fundamental importance to our legal system which courts ought to consider when adjudicating over civil claims particularly whether issues not raised by the parties ought to be determined by the court on its own volition. I also argue that the issue considered was inherently a constitutional one that ought to have first been considered by the High Court in its original jurisdiction before being subject to appellate review.

I. Introduction

On 17 August 2022, the Court of Appeal of the Eastern Caribbean Supreme Court (the Court) delivered an unexpected decision. The Court ruled that the Nevis Island Administration (NIA), the governing body on the Island of Nevis did not possess legal standing to sue and be sued in civil proceedings due to the applicability of the Crown Proceedings Act179 (the Act) of Nevis. A review of the facts indubitably raises to any discerning reader the question: how exactly did the Court become seized of this issue in the first place?

In this article, I seek to examine the decision and this most pressing question. I will briefly review the Court’s judgment and the legal framework in which it was decided, then I will highlight two key legal concepts which require some elucidation following the decision of the Court. These are preliminary issues and sua sponte decisions. Afterward, I will evaluate whether the issue before the Court was of a constitutional nature and thus a matter for the High Court’s determination.

II. The History, Decision, and the Legal Framework

For these purposes, it is sufficient to note that the Constitution of Saint Kitts and Nevis180 (the Constitution) is the document that establishes the NIA. Section 106 of the Constitution vests the NIA with exclusive responsibility for the administration within Nevis over eight distinct areas which include land and buildings vested in the Crown and specifically appropriated to the use of the Government. The Act provides for matters relating to the civil liabilities, rights and proceedings of and against the Crown. The Act outlines in various sections181 that the term Crown for the purposes of the Act refers to the Attorney General of St. Kitts and Nevis in whose name all claims are to be made against.

Ocean Reef Resorts Limited (the Respondent) brought a claim against the NIA seeking damages for breach of contract. The claim was served on the secretary in the Legal Department of the NIA. The NIA did not acknowledge service within the requisite time and the Respondent successfully received a default judgment against the NIA who then applied to set it aside on the basis that they were not properly served. The Master dismissed the NIA’s application and ruled that they had been properly served and the NIA appealed the decision. When the matter was first heard by the Court of Appeal, the Court sua sponte (on its own initiative) decided to

raise two preliminary issues: (1) whether the proper party was served with the claim for the purposes of the entry of the default judgment and (2) whether the NIA was a juridical person separate and apart from the Crown or was part and parcel of the Crown for the purposes of proceedings under the Act. The Court observed that it was not considered by the Master or canvassed by the parties in the proceedings below but considered it sufficiently important to address to promote legal certainty.182

In that context, the Court went on to decide that the Act was federal legislation which applied to both Saint Kitts and Nevis. The Act provided that civil proceedings against the Crown must be instituted against the Attorney General. The Court noted that there were no provisions in the Constitution which disapplied the Act in relation to Nevis nor was there provision implied or otherwise in the Act which permitted the NIA to assume the role of the Attorney General in relation to civil proceedings commenced in Nevis against the Crown. The Court indicated that there was nothing in section 106 of the Constitution which imbued the NIA with legal standing to sue or be sued in respect of land and buildings vested in the Crown or in any other areas within their exclusive responsibility. Thus, they held that the NIA was part and parcel of the Crown for the purposes of civil proceedings under the Act and therefore the claim ought to have been instigated and served on the Attorney General.

III. The Issues

As indicated above, I will telescope on two procedural issues that arise from the Court’s decision – the proper use of preliminary issues and sua sponte decisions.

Preliminary Issues

It is trite that the court has extensive case management powers under the Civil Procedure Rules 2000 (CPR) and does in fact have the power to order a separate or preliminary trial. Pursuant to under Rule 26.1(2)(e) this is an expressed power of the court. Rule 62.14(1) extends this case management power to the Court of Appeal.

However, that there is a basis for the power is not the end of the question. The Court’s case management powers are not unfettered or at large183 and case law has sought to regulate how they are used. In the English case Allen v Gulf Oil Refinery184 , Lord Roskill explained that the

182 Ocean Reef Resorts Limited [8]. Emphasis added.

183 Grenada Land Actors Inc v The Planning and Development Authority et al GDAHCV2021/0290, [30]. This case also dealt with the issue of exercising caution when ordering preliminary trials.

184 [1981] AC 1001

preliminary point procedure was one that could be invoked to achieve the desirable aim of economy and simplicity185 . He however explained that such cases where it would be desirable were few. He went on to alert judges to be extremely cautious before making such orders186. In Craig Reeves v Platinum Trading Management Limited187 , the Eastern Caribbean Court of Appeal discussed the point. They expressed risks that were manifest with this procedure. Denys Barrow JA stated:

“Wasting rather than saving time, complicating rather than simplifying issues, and engaging in mini-trials with no true justification for doing so, are among the risks that require careful consideration before a court decides to order the trial of a preliminary issue”.

The Court went on to hold that the judge ordered a preliminary trial without considering or properly considering the reasons why she should not hold such a trial. Therefore, because the judge held a trial of a preliminary issue in disregard of relevant factors, the decision was bad in law and was quashed on appeal.

I recognise that this case dealt with raising a preliminary issue on a point of fact and in that sense can be distinguished from the decision under review as it dealt with one on a point of law. However, it is submitted that all the cautions and factors must still be taken into account. Further, there needs to be a consideration of the particular point of law under review. Despite the Court’s reluctance to acknowledge this point, this was a matter of constitutional interpretation not merely of interpreting the Crown Proceedings Act. In Grenada Land Actors Inc v The Planning and Development Authority, 188 the court refused to order a preliminary trial on an issue of law that would seek to determine a question of sufficient interest on a judicial review claim. Clearly then, if such a position could be warranted under judicial review proceedings it ought naturally to be as applicable to a case of constitutional interpretation. The court raised two preliminary issues mentioned above. Confusingly, the first issue is not a preliminary issue but in fact the substantive issue in the case namely whether the claim was served on the proper party in the context of the NIA. The second issue was a completely unexpected and somewhat unrelated issue to the substantive issue of proper service namely whether the NIA is a juridical person separate and apart from the Crown. It appears this

question was so unexpected that all parties including counsel appearing for the Attorney General argued in favour of the NIA possessing legal standing. Therefore, for the court to move on its own initiative against all parties in the case to raise a preliminary issue on the substantive issue and an arguably unrelated issue appears at first glance to be quite unorthodox.

The Court was of the view that this case was not a matter of constitutional interpretation. Arguably and for reasons I will subsequently elucidate the matter was in fact a matter of constitutional interpretation. Suffice it to say, the Court’s decision also appears at variance with the overriding objective of the CPR to deal with cases justly by dealing with them in ways proportionate to the importance of the case and the complexity of the issues.

Sua Sponte Decisions

Sua sponte is a Latin term meaning ‘of one’s own will’. It contemplates situations where actions are taken by courts without the prompting of the parties to the dispute. In our common law legal systems, this is not a practice generally countenanced as many view it as antithetical to our adversarial legal system189. Typically, there are opposing parties who present their cases to an impartial judge who assesses the merits of each parties’ case and makes his ruling. Lord Denning put it best:

“In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large... 190”

When judges step outside this role, it is said that they drop their mantles as judges and assume the robes of advocates and this was unbecoming of their position191 .

This is even more so in the case of appellate judges. The role of the Court of Appeal is mainly one of review192. Their proper role in our legal system is to review the decisions of lower courts and to defer to their decisions unless there are material inconsistencies or inaccuracies that render the decision plainly unsound193. This explains why Courts of Appeal do not typically

189 See generally, Barry Miller, ‘Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard’, 30 San Diego Law Review (2020); Amanda Frost, ‘The Limits of Advocacy’, 59 Duke Law Journal (2009) 447-517; Jeffrey Anderson, ‘The Principle of Party Presentation’, 70 Buffalo Law Review (2022).

190 Jones v National Coal Board [1957] 2 QB 55, 64. (Emphasis added)

191 Ibid

192 C. Blake & G. Drewry, ‘The Role of the Court of Appeal in England and Wales as an Intermediate Court’ in A. Le Sueur, Building the UK’s New Supreme Court: National and Comparative Perspectives (OUP, 2004) 227

193 Watt v Thomas [1947] AC 484

allow parties to raise new issues on appeal. May LJ in Jones v MBNA International Bank194 sets this out brilliantly and it is worth relying on in full. He held:

“Civil trials are conducted on the basis that the court decides the factual and legal issues which the parties bring before the court. Normally each party should bring before the court the whole relevant case that he wishes to advance. He may choose to confine his claim or defence to some only of the theoretical ways in which the case might be put. If he does so, the court will decide the issues which are raised and normally will not decide issues which are not raised. Normally a party cannot raise in subsequent proceedings claims or issues which could and should have been raised in the first proceedings. Equally, a party cannot, in my judgment, normally seek to appeal a trial judge's decision on the basis that a claim, which could have been brought before the trial judge, but was not, would have succeeded if it had been so brought. The justice of this as a general principle is, in my view, obvious. It is not merely a matter of efficiency, expediency and cost, but of substantial justice. Parties to litigation are entitled to know where they stand. The parties are entitled, and the court requires, to know what the issues are. Upon this depends a variety of decisions, including, by the parties, what evidence to call, how much effort and money it is appropriate to invest in the case, and generally how to conduct the case; and, by the court, what case management and administrative decisions and directions to make and give, and the substantive decisions in the case itself. Litigation should be resolved once and for all, and it is not, generally speaking, just if a party who successfully contested a case advanced on one basis should be expected to face on appeal, not a challenge to the original decision, but a new case advanced on a different basis. There may be exceptional cases in which the court would not apply the general principle which I have expressed.”195

In our legal system and particularly in our system of civil litigation, cases that come before the court should be predominantly party driven with limited judicial interference in that regard. It is especially paramount on appeal that parties know where they and their opponents stand in relation to the case. It is unusual for new arguments to be raised on appeal especially when they change the entire nature of the case itself. In NIA v Ocean Reef Resorts Limited, the new question raised sua sponte had the effect of transforming the case from one of civil procedure

to one of constitutional interpretation- albeit that the Court did not come to the same position. Merely allowing the Attorney General to intervene as amicus was insufficient. In this regard parties should have been able not only to formulate new submissions, but they may have desired to seek new counsel more familiar with advancing public law arguments. The NIA may have even wanted to file affidavits detailing the necessity of juridical status for its smooth operation.

To buttress the point, in Roosevelt Skerrit v Antoine Defoe,196 Justice Burgess of the Caribbean Court of Justice forcefully reasoned that absent an application by the parties, the High Court judge could not sua sponte decide that a question of constitutional interpretation was in issue and proceed to rule on it197. This was due to the fact that the Constitution and the CPR together established an ‘elaborate procedural system on how to access constitutional redress and constitutional interpretation in the High Court’. If this is the case for the High Court who possesses original jurisdiction over these matters, then it must all the more be the case for the Court of Appeal who does not.198

For the Court to not only raise this issue sua sponte but to openly admit that it did so to resolve general issues of service and to promote legal certainty is unprecedented. The result was that the Court of Appeal assumed the role of an advocate and argued its own case against all other parties involved in the dispute. If anything flies in the face of Lord Denning’s earlier caution surely it is this. The result not only compromised the NIA’s position as an administrative body but perhaps the entire structure of our legal system. The Court is credited for its interest in seeking to resolve an interesting and legitimate lacuna in our legal system. However, and at the same time, the Court’s good intentions did not appear to conform with established principles.

IV. The Constitutional Question

An argument can be made that rule 26.2(1) CPR gives the Court the powers to make an order on its own initiative. Whilst that is true, it bears restating that these powers are not unfettered or at large. The decision to make the order must be exercised in light of the overriding objective and the values of our legal system expressed above. But even if the opposing view is of formidable persuasion still, rule 26.2(1) expressly limits this power in cases where a rule or

196 [2021] CCJ 4 (AJ) DM

197 Ibid [82]

198 See further on this point Attorney General of Jamaica v BRL Limited [2021] JMCA Civ 14, [121]

(McDonald-Bishop JA)

other enactment provides otherwise. Arguably in accordance with sections 96 and 97 of the Constitution questions of constitutional interpretation must be referred to the High Court who exercises original jurisdiction to hear such matters.

I acknowledge that much of my argument thus far has presupposed that the issue was a constitutional one, so I have designated this section to explain why I am of that opinion.

Section 2 of the Constitution establishes its supremacy and declares any law inconsistent with it be deemed void to the extent of its inconsistency. Section 2 of Schedule 2 to the Constitutional Order indicates that all existing laws from 19 September 1983 must be construed with such modifications, adaptations, qualifications, and exceptions necessary to bring them into conformity with the Constitution. The Constitution of Saint Kitts and Nevis, unlike other constitutions in the region, does not possess a savings law clause. The practical effect of this is that all laws on the books, save none, must be read giving effect to the provisions of the Constitution.

Thus, the Crown Proceedings Act albeit an Act of 1955 must be read in conformity with the Constitution. The Constitution, in its typical ambiguous fashion, outlined that the NIA possesses exclusive responsibility over eight matters. The question as to whether it is a necessary corollary for the NIA to contract and/or enforce contracts relating to these eight matters is unavoidably one of constitutional interpretation and thus falling within the jurisdiction of the High Court. The Court’s reasoning has implications whether explicitly or implicitly on the NIA’s juridical status and whether they can contract in the first place. This unquestionably bears on whether the NIA has exclusive responsibility in fact or whether this exclusive responsibility is mere constitutional surplusage. One would expect someone who has exclusive responsibility over land to be permitted to enter into a basic contract such as a lease and enforce its terms.

The Court’s interpretation of the Act is confusing because the Court not once mentions the important fact that the Act was enacted before the Constitution and thus before the NIA existed. How then is it expected that the Act would refer to the issue of the NIA. In fact, the Act predates even the establishment of the Nevis Local Council instituted under the St. Christopher-NevisAnguilla Constitutional Order 1967.199 Even stranger, the Court’s reasoning rests on the belief that the Constitution must in some way disapply the provisions of the Act. Constitutions are by

nature ambiguous and open-ended documents200. They neither express precise terms nor do they attempt to. This is the reason that a body of theory and law has developed in relation to the various methods of interpreting these documents. Nonetheless, these documents founded on our Westminster traditions must be interpreted generously to avoid the ‘austerity of tabulated legalism’201. Thus, arguments that exclusive responsibility implied legal standing over the defined areas cannot be far-fetched. But that was a constitutional question for the High Court.

Undoubtedly then the question was not whether there were any provisions of the Constitution which disapplied the Act. That is surely putting the cart before the horse. The constitutional question was given the tenor of the provisions of the Constitution concerning the separation of the NIA from the Federal Government, whether juridical status was a necessary corollary of exclusive responsibility over the eight areas. If not, then the matter is at an end and the NIA does not have standing. However, if the answer is yes, then there is the follow-up question of whether the Crown Proceedings Act can be read in conformity with the Constitution. If it can, the NIA has standing. If not, the Act is unconstitutional and must either be modified or struck down

But such a discussion can only be based on interpreting the Crown Proceedings Act against the provisions of the Constitution. If that was the question either party to the proceeding wished to raise, then the cumulative effect of Parts 56 and 61 of the CPR was that a party should have applied by fixed date claim form to the High Court for the master to refer the question to the High Court202. Absent such an application, neither could a party to the proceedings raise the issue on appeal nor could the Court of Appeal sua sponte raise the issue and decide it203

V. Closing Remarks

The proper role of the Court in this case was to review the appeal before it. That is, whether the secretary of the Legal Department of the NIA was the proper party to be served in relation to the NIA. Contrary to the court’s view, the body of law and common practices that have developed in that regard was certainly relevant and, in my view, determinative. The court instead went on a frolic of its own and raised a preliminary issue of a fundamentally

200 Minister of Home Affairs v Fisher [1980] AC 319

201 Ibid

202 Roosevelt Skerrit v Antoine Defoe [2021] CCJ 4 (AJ) DM [82]

203 Similarly, the court in The Chief of Police v Calvin Nias HCVAP2007/010 discusses the role of the High Court judge in constitutional matters

constitutional nature and decided it. The Board in Brantley v Constituency Boundaries Commission204 observed the proper procedure of legal claims: ‘It is no part of the Board’s role, in this appeal...to make any findings in relation to the appellant’s substantive case...Those allegations were yet to be tested by the courts in St. Christopher and Nevis when the Board heard the appeal’. This perfectly and succinctly acknowledges the role that the High Court must play in these matters. Constitutional questions are questions for the High Court to determine in its original jurisdiction before being subject to appeal. Unfortunately, the Court made a ruling seemingly in breach of the proper use of the power to raise preliminary issues and in disregard of the foundational values of the legal system and civil litigation in our country. As this is a judgment of the Court of Appeal, it is even more unfortunate as the only hope left for the NIA is mounting a successful Privy Council challenge or an accommodation by the Federal Government. In the meantime, we have an NIA problem.

An Edited Extract of The Implementation of Efficacious Corporate Governance

as a Substantial Deterrent for Financial Fraud and Economic Crime in the Commonwealth Caribbean

Alyssa Hill

Abstract

This research paper examines and explores the efficacy of implementing strict corporate governance in the Anglophone Commonwealth Caribbean as a substantial deterrent from financial fraud and economic crime. The reported occurrences of corporate crime in the Commonwealth Caribbean have increased at alarmingly high rates throughout time. It is suspected and has been investigated that in Commonwealth Caribbean countries such as Barbados and Trinidad and Tobago, large corporate crimes are mainly fuelled by politics and the governmental world, particularly due to the democratic political system in which these countries partake, high managerial corruption and business façade. These factors inform the focus of this paper and are expounded upon and criticized sufficiently.

The research for this paper was executed via varying articles, newspaper exerts, journals, credible published works, textbooks, and further readings. Incorporating the information sourced from these instruments, it has been established that corporate crime, especially whitecollar crime is exceedingly prevalent in the Anglophone Commonwealth Caribbean due to the ironic lack of legal consequence as most crime is committed by those whose standard job description require, they enforce the law, not abuse it.

It is for these reasons that this paper ultimately establishes the urgent need for the implementation, and not just implementation but most importantly – actionable and effective enforcement, of good corporate governance as a safeguard against economic crime and financial fraud and it suggests appropriate reform measures and recommendations of which great heed should be taken.

I. Background

Corruption continues to be of immense concern in many developing countries. Arguably corruption is mainly attributable to poor enforcement of proper corporate governance. This is because if proper corporate governance is enforced, the previously listed attributes would cease to exist. Thus, it is the disparaging role of any country to ensure the issuance of honest disclosure and accurate information along with reliable and sagacious financial and business reporting so as to encourage and ultimately implement proper corporate governance.205 Where these attributes are lacking, corruption prevails. Jackson posited that poor regulatory systems and unskilled and negligent directors in executing their duties formed the “Genesis,” so to say, of many serious consequences, financial failures, and scandals in the Caribbean.206

Further, Vindell Kerr posits it was also what happened in Asia and post-Soviet Russia that revealed further shortcomings with how legislators approach the development of the economy. To him, without binding rules and structures that govern all “players,” chaos would most definitely be the ultimate result. This statement holds extreme validity, and it is proven based on why the law was implemented. Binding rules, constituting of promulgated consequences, must be enforced in a society so as to disallow people from relying on their own vices and ultimately, enacting chaos. Once actively enforced, laws create a structure in which each citizen abides so as to avoid facing the consequences. Therefore, the rules of corporate governance should be binding, and should hold great consequence. It is only when these rules become binding upon entities that it will be enforced. It goes without saying that Commonwealth Caribbean countries need proper economic structure.

The very serious collapse of Colonial Life Insurance Company Limited (CLICO), a huge and once prominent financial conglomerate in Trinidad and Tobago, was another great example of another weakness in the way policy makers approach economic development. CLICO’s crumble was a complete shock and was devastating that its collapse on January 30th, 2009, is still being felt by today’s economy in Trinidad and Tobago and the wider Caribbean. CLICO encompassed over 65 companies in 32 countries with consolidated assets amounting to US$16 billion.207 This crisis will be further discussed however, in Chapter 3 of this paper.

205 Vindell L. Kerr, Towards a Caribbean Wide Corporate Governance Framework, 2004.

206 M K Jackson, “Ownership, Corporate Governance and Liquidity in Caribbean Firms” (MPhil thesis, Queensland University of Technology 2013).

207 Ibid

Also, Barbados experienced the collapse of Trade Confirmers Limited (TCL). This was a finance company which had been offering higher than market interest rates on deposits and in 1987, it collapsed leaving depositors out of pocket to the sum of US$1.2 million.208

However, it must be noted that while many Caribbean economies have experienced serious and detrimental collapses due to their inadequate implementation of proper corporate governance procedures, effort has been made to cure this economic deficiency. The Organization for Economic Cooperation and Development (OECD) for instance, officially developed their G20/OECD Principles of Corporate Governance209 in 1999. These principles set out specific guidance for policymakers, regulators and market participants in improving the legal, institutional and regulatory framework that underpins corporate governance, with a focus on publicly traded companies.

II. Introduction

The OECD posits that corporate governance is “the system by which business corporations are directed and controlled”210 and that “proper corporate governance aids to construct a trustworthy environment, a transparent environment and an accountable environment required for nurturing long-term investment, financial stability and business integrity, which in turn creates stronger growth and inclusivity.”211

Throughout the many satisfactory definitions, most fail to touch on the direct co-dependent relationship between both corporate governance and the political and overall, governmental world, especially in the Commonwealth Caribbean, where most of these countries are governed by a two-party democratic system.

It is imperative corporate governance is implemented from the aspect of shareholders Indubitably the election of competent and skilled directors may lead to economic growth of the country in which the company operates through corporation tax, PAYE (Pay As You Earn) and NIS (National Insurance) contributions to name to a few.

To have effective corporate governance, there must be an effective government first. But in the same light, there must also be an equally effective corporate governance framework set up in

208 Ibid

209 OECD, G20/OECD Principles of Corporate Governance, < https://doi.org/10.1787/9789264236882en. > accessed October 15th, 2022

210 OECD Principles of Corporate Governance < https://link.springer.com/chapter/10.1007/978-4-43130920-8_10 > accessed October 13th, 2022

OECD. < https://www.oecd.org/corporate/ >

the country, to not only regulate the powers and proper duties of a director, or a shareholder, but to regulate those of the government as well. It is not only crucial that the corporate governance within a corporate office be implemented effectively, but it is important that the same ideal framework be taken on by government as well. If an economy fails due to bad corporate governance, it reflects greatly on the government, particularly the legislative arm as it is their direct responsibility to ensure that one, there are laws in place to safeguard from detriment and two, these laws are effected, enforced and abided by. On the other end, when good corporate governance is enacted, corruption will seize. It is in this effort that the call for efficacious corporate governance be made now. Nonetheless, where good corporate governance is both recognized and implemented, a country will have a successful corporate sector and an equally successful government. In small developing countries “proper corporate governance results in resources being properly utilised, capital being easier to access, great improvement in opportunities for citizens to be employed, and a better chance of developing in a sustained way efficient domestic or regional capital markets. Corporate governance is also important for the effectiveness of public institutions; better-governed companies are less likely to bribe regulators and judges.”212 Further, it can attract foreign investors as it is a “prerequisite for attracting patient equity capital that can contribute to domestic sustainable growth.”213

III. CHAPTER ONE Directors’ Duties – Companies Act

Section95 of the Barbados Companies Act provides, “Every director and officer of a company in exercising his powers and discharging his duties must act honestly and in good faith with the company’s best interest in mind; all while exercising care, diligence and skill that a reasonable person would in a similar scenario.”214 Similarly, section 99 of the Trinidad &Tobago Companies Act instructs that, “Every director and officer of a company shall in exercising his powers and discharging his duties act honestly and in good faith with the company’s best interest in mind; all while exercising care, diligence and skill that a reasonable person would in a similar scenario.”215 When juxtaposed to each other the legislation in these

212 Why Good Corporate Governance is Crucial to Development

<https://www.oecd.org/newsroom/whygoodcorporategovernanceiscrucialtodevelopment.htm > accessed October 14th, 2022

213 Ibid

two territories makes it clear that a director has a duty of care which must be undertaken by law. Folkes-Gibson posits that the director’s duty of care has evolved from very little expectation of directors and officers being based on a purely subjective standard, found at common law,216 to what has been accepted as an objective/subjective test of that which “a reasonably prudent person would exercise in comparable circumstances.”217 Peoples Department Stores Inc. (Trustee of) v Wise, 218 is authority for the view that duty of care, diligence and skill “imposes a legal obligation upon directors … to be diligent in supervising and managing the corporation’s affairs”. The test for directors’ duty of care is objective. Therefore, the decisions of directors and officers must always be reasonable business decisions regardless of circumstance, including the prevailing socio-economic conditions, about which they knew or should have known.219 In BCE Inc. v 1976 Debenture holders (BCE)220 it was noted that the duty of care, diligence and skill was owed to stakeholders, including creditors.221 In analysing this case therefore, creditors are allowed to bring an action for these breaches, where the statute does not limit the duty to the company alone.

IV. CHAPTER TWO: The Scandal that Shook Barbados – Trade Confirmers (Barbados) Ltd

In the previous chapter, the director’s duties were discussed. The focus of this present chapter is on one of Barbados’ most prominent corporate scandals, TCL. It will be discussed however, that there is need for greater focus on effective corporate governance in Barbados. Admittedly there has been a collective fervent effort to combat veritable threats of corruption. Lastly, this chapter will conclude by highlighting personal recommendations on how this crisis could have been avoided and how, by actively implementing both existing corporate governance rules and cultivating new methods, Barbados can avoid crises in the future.

TCL was a prominent, local, majority-owned, financial conglomerate incorporated in Barbados on March 31, 1982, under the Barbados Companies Act with an authorized share capital of

216 Ibid (n 214) chap 3. Pg 68-69. The case of Re City Equitable Fire Insurance Company Limited [1925]

1 Ch 407 (CA) is instructive here where Romer J set out the standard subjective test at that time, for whether a director had breached his or her duty of care as a director. This is now bad/old law.

217 Ibid

218 [2004] SCC 68 [62]

219 Ibid

220 [2008] SCC 69

221

(Trustee

$5,000,00.222 Trade Confirmers had a minority held in Trinidad and Tobago which had a similar name, and according to the Nation News Barbados, it was revealed that it was actually a subsidiary of the same Trinidad and Tobago company which had been liquidated in 1986.223 According to an unnamed researcher, this left “much concern . . . by all of the depositors about the impact, if any this would have on the Barbados operation ”.224 “At this time,” wrote Juliana Thorpe-Taitt, “the managing director gave the assurance to depositors that the collapse of the Trinidad company would have no impact on TCL since the Barbados company was a local company, and the majority of shares were held by Barbadians”.225 Thompson wrote that despite the assurances from Government that the operations in Trinidad of CLICO and operations in Barbados were still viable after the collapse of the parent company, CL Financial, investors in Barbados and in the islands of the OECS were still fearful that they may lose their money.226 The investors’ hesitancy was very warranted in this circumstance, especially when it was uncovered that the negligence and incompetency of the directors caused the ultimate demise of TCL. While it is traditional for investors to make deposits into known financial institutions, and it is understood that anything surrounding the daily business investors partake to be risky in nature, it is ludicrous to expect investors to trust a financial system that was never properly regulated and safeguarded in the first instance.

William Layne wrote that at the time, TCL was offering interest rates on deposits that were more than what the other regulated entities in Barbados were offering.227 Unfortunately, however, all the depositors lost their money. TCL, though a deposit taking institution, was not regulated by the Central Bank and this brought about a change of legislation after the event to regulate these Finance Companies.228 On more detail, “per the Memorandum of Association, Trade Confirmers (Barbados) Ltd offered a variety of financial services such as carrying on the business of financiers and granting loans to name a few. After only operating for one year, Trade Confirmers Barbados Ltd was designated an official Financial Institution on April 8, 1983, on recommendation of the Central Bank of Barbados. This new status allowed the Central Bank to exercise a measure of control over Trade Confirmers (Barbados) Ltd by conducting

222 Ron Sookram, Corporate Governance in the Emerging Economics of the Caribbean: Peculiarities, Challenges, and a Future Pathway University of the West Indies, January 2016

223 Rhonda Thompson, “Counting the Cost”(Nation News) September 19th, 2010

224 Ibid

225 Ibid

226 Ibid

227 William Layne, Recent Financial Failures in the Caribbean – what were the causes and what lessons can be learnt? 2012

228 Ibid

periodic inspections of its books and accounts. The financial company launched a successful advertising and sales campaign boosted upon the basis of the promise to pay above-market interest rates on deposits, particularly, higher than those offered by already established commercial banks in Barbados at the time.”229 It was this way that they enticed depositors as these rates were unprecedented and highly attractive. “By the end of August 1983, Trade Confirmers (Barbados) Ltd had received deposits to the total of US$2.4M. Almost four years later, Trade Confirmers (Barbados) Ltd went into receivership on October 9, 1987.”230

In 2010, the Nation News Barbados reported that after the company’s receivership “A commission of inquiry … headed by Justice Lindsay Worrell, and including Lionel Moe and Rawle Brancker as members, was set up by the then Governor General Sir Hugh Springer, and held its first meeting on March 28, 1988, at the Caribbee Hotel, Christ Church.”231 The purpose of this Commission of Inquiry was to conduct a thorough investigation into TCL and report on the following:

1. “The causes of the collapse of Trade Confirmers (Barbados) Ltd.

2. Whether the business of Trade Confirmers (Barbados) Ltd was carried on negligently or with intent to defraud the depositors and or other creditors, and shareholders, or in any way that was unfairly prejudicial to, or unfairly disregarded their interests;

3. Lastly, to make such recommendations as considered and deemed appropriate.”232

“What was uncovered by the Commission was that TCL Ltd was under-capitalized from the genesis of business and in breach of many financial regulations. The Central Bank inspection in May 1984 revealed that the funding of TCL along with the fact that eightythree percent of all deposits were for periods of two years and less, thereby making the deposit base very volatile, alerted red flags for the Commission. It was uncovered that withdrawal of either and or both of these deposits could have placed TCL into serious liquidation.”233

During the premier inspection, there was a representation of a loan-to-deposit ratio of 204% and clearly indicated that TCL was severely overlent. The Commission also found that there was a lack of current financial information on the borrowers and that even where there was

229 William Layne, Recent Financial Failures in the Caribbean – what were the causes and what lessons can be learnt? 2012

230 Ibid

231

little financial information, many of the borrowers had poor credit ratings at other financial institutions. TCL was also guilty of breaches of the Barbados Rate of Interest Act, Chapter 316234, the Barbados Hire Purchase Act Chapter 328235, the Barbados Exchange Control Act Chapter 71236, and the stipulations in relation to unsecured loans to directors. As a matter of fact, two of TCL's directors had already obtained advances from the company, all of which were unsecured. In November 1984, a subsequent inspection ensued and uncovered that TCL had changed very little in their operations. The number of deposits had decreased from a total of 97 to a total of 91 and borrowings from commercial banks had increased by a total of 37%. Additionally, around 40% of Trade Confirmer’s loans’ portfolio was classified as “substandard.”

Thorpe further posited that “what unfolded over the next three months painted a picture of ineptness from directors, management and auditors and the inquiry revealed a blatant effort to mislead and deceive depositors; and a lack of timely action by Central Bank authorities in dealing with the obvious [breaches] that were made by the institution.237 This is why good and effected corporate governance by way of competent service providers is necessary.

The inquiry also uncovered high incompetence and gross negligence by TCL’s auditors. In verbal testimonies at the inquiry, both the audit senior and the audit partner admitted that they had no experience in auditing financial institutions. This was a pellucid contravention of what was legally required by the guidelines set out in the Handbook of the Institute of Chartered Accountants of Barbados (ICAB), of which the auditors were members. As members, there was no excuse for their dishonesty and incompetency. As a member of ICAB, it was reasonably expected of them to both know the guidelines as well as abide and carry out honest business in accordance with them. However, it was the upmost duty of TCL to ensure their auditors were competent as one of the most basic corporate governance rules/principles is to have competent service providers.

In continuance, the lack of conformance to corporate governance not only affects the government, but individuals as well. The commission concluded the following:

234 Trade Confirmers Ltd more than likely contravened s. 3 of the act which reads: “no person, other than an exempted person, may in any contract made in Barbados, after the 8th October 1973 (a) directly or indirectly charge, secure or reserve a rate higher than the prescribed rate.

235 1959-19

236 1967-53

237 William Layne, Recent Financial Failures in the Caribbean – what were the causes and what lessons can be learnt? 2012

• “The business of TCL was carried out by the Directors in a manner that unfairly prejudiced and unfairly disregarded the interests of the depositors, shareholders and creditors;

• The directors were negligent in failing to exercise due care and diligence in the management of the company;

• The chairman and managing director withdrew funds of the company without the authority of the board of directors;

• The managing director caused fictitious entries to be made in the account books of the company and that several of these transactions appeared to be fraudulent;

• The auditors failed to adhere to generally accepted auditing standards in the acceptance and execution of the audit; and

• The Central Bank of Barbados failed to exercise its powers under Section 36 of the Central Bank Act, allowing them to place restrictions on Trade Confirmers.”238

Thus, “The collapse of this institution reverberated throughout the Barbadian community for many months, even years. At its conclusion, the commission stated that “its secretary had forwarded all the transcripts of the evidence to the Director of Prosecutions”. However, no one was ever prosecuted, and the depositors remained the ultimate losers.”239

The last point is why bad corporate governance will continue. It is certain that this lack of sanction is a key factor to the rampant abuse of power, lack of implementation of good corporate governance and the devastatingly, common occurrence of corruption. Nevertheless, TCL’s downfall is a classic example of the lack of good corporate governance and particularly showcases the sad reality that where corporate governance is taken for granted, a corporation will ultimately fail.

Implementations

In February 2013, the Central Bank of Barbados released a “Corporate Governance Guideline”, of which all licensees should abide. The central bank recognised various crucial elements to good corporate governance, namely the nature and frequency of both internal and external audits, in respect of the nature of the particular corporation, along with a specified overview of

the role of the bank, risk management, the role of the board members and qualifications amongst other things.240 Pertaining to qualifications specifically, the guideline requires that, “Board members should possess, both at the individual and the collective levels, appropriate experience, competencies and personal qualities, including professionalism and personal integrity to enable them to exercise their duties of care and loyalty.”241 This guideline is particularly important, as a major component of the biggest financial crisis Barbados ever experienced was rooted directly in the incompetence and negligence of the directors. Thus, the need for directors is further enforced and emphasized in the Corporate Governance Guideline and was a great implementation by the Central Bank.

Further, the Government of Barbados implemented a Corporate Governance Authority by establishing the Financial Services Commission on April 1st, 2011, which was born by virtue of the Financial Services Commission Act 2010.242 The Financial Services Commission enacted this recently developed act so as to enable the efficacious implementation of good governance, thereby requiring all financial institutions in Barbados to create and effect clear company policies, procedures and systems within a corporation to act as reliable and sensible guides for the management of both governance risk and the behaviour and conduct of all Directors, senior management, officers and other key personnel within an organisation.243 The implementation of this 2022 Corporate Governance Guideline is highly progressive and sets out very clear and effective guidelines for better corporate governance that if actioned, Barbados can both minimise board incompetency and negligence and also become a beacon for the rest of the Caribbean.

Lastly, it was announced to the island via radio broadcasting on the early morning of November 17th, 2022, which was later published in print media, that there would be the creation of an Anti-Money Laundering Sector (Compliance Unit) within Sandals Hotel via the FATF Action Plan

Financial Action Task Force. The Minister of Home Affairs and Information, Wilfred Abrahams, in speaking on behalf of Attorney General Dale Marshall, noted that “in February 2020, Barbados made a high-level commitment to the Financial Action Task Force (FATF), signalling its intention to remain a good international partner in the fight against money laundering and terrorist financing, by implementing an agreed Action Plan.”244 Thus, the

240 Central Bank of Barbados Corporate Governance Guideline 2013:01.

241 Ibid, 4.3.1.

242 Barbados Financial Services Commission Act.

243 Financial Services Commission Corporate Governance Guidelines

functions of this Anti-Money Laundering Compliance Unit will include identifying emerging risk and compliance trends on a macro basis, identifying specific entities that may merit increased scrutiny through an inspection or targeted follow-up, and increasing the knowledge of the DNFBP (Designated Non-Financial Businesses and Professionals) sector.245

In conclusion, though Barbados suffered the detrimental effects of the collapse of TCL in 1987, along with other crises not discussed246 it is evident that in 2022, Barbados is ready to get on track to recover from these stains on their financial industries by way of developing the 2022 Corporate Governance Guideline and the Anti-Money Laundering Compliance Unit. The view is that with the creation of this statutory authority and the Unit good corporate governance can finally be effected in Barbados. The pre-existence of corporate governance measures is respected, as the purpose of this paper is not to imply that guidelines and statute do not exist, and while it is appreciated that a Guideline has been effected in 2022, it is also appreciated that these acts alone are not enough, if only prima facie performative inter alia.

Recommendations

As such, a few recommendations can be made.

1. Corporate Governance in Barbados must have a governing body. The Financial Services Commission is most suitable since its body developed the Guideline. Therefore, Corporate Governance should be made more of a priority going forward by the Commission, where they are mandated annual reports and bi-annual investigations executed.

2. There should be serious penalties similar to those of the failure to meet Economic Substance Requirements. Deterrence, especially of a general nature, is a great method of doing so. If harsh monetary or criminal penalties are instated for breach of the Corporate Governance Guideline, the occurrence of such will surely diminish. This is especially important when you consider the statement coming out of the Inquiry of Trade Confirmers by the secretary, where it was recorded that no prosecutions were carried out. If Barbados starts carrying out prosecutions for these breaches – breach of directors' duties, breach of the Guideline etc., an exceeding number of corporations will take corporate governance seriously and implement effective corporate governance.

3. Great heed must be taken to the knowledge, expertise and qualifications of a director, auditor, shareholder or general staff personnel. Thorough background checks and interviews should be conducted to ensure that directors are capable of carrying out their duties and possess basic traits such as transparency, reliability and responsibility, along with proper qualifications and knowledge because Trade Confirmers is a classic example of the failure to do so.

4. Lastly, directors, shareholders, auditors etc must take their roles seriously and carry out their fiduciary duties as prescribed within both the company policy – which should have taken reference from the anti-money laundering legislation and corporate governance guideline – and the legislation, codes and guidelines.

V. CHAPTER THREE: The Financial Scandal that Shook Trinidad and Tobago – Colonial Life Insurance Co.

In this chapter, the financial scandal that shocked Trinidad and Tobago and the entire Commonwealth Caribbean at large, the Collapse of CLICO, is discussed. Further discussion will be had regarding the intricacies behind CLICO’s collapse as well as how this collapse could have been avoided as well as a dive into the Trinidad and Tobago Corporate Governance Code of 2013. This chapter will also examine the omnipresent corruption in Trinidad and Tobago, which is a prominent showcase of the lack of corporate governance. Lastly, this chapter will conclude by highlighting the implementations, where any, that Trinidad and Tobago have made pursuant to this scandal to enforce good Corporate Governance as well as personal recommendations on how this crisis could have been avoided and how by actively implementing both existing corporate governance rules and cultivating new methods, Trinidad can avoid or limit financial crises in the future, thereby eroding economic crime and financial fraud as well as successfully make strides to eventually efface the proverbial stain corporate and political corruption has left on Trinidad.

CLICO (Colonial Life Insurance Company) was incorporated on December 15th , 1963 and began operating in July 1937 by Lawrence Duprey.247 When Duprey first considered establishing CLICO, the existence of the local insurance industry was nil because mainly foreign life insurance companies operating through local agents ruled this industry.248 As such,

the initial response to the physical manifestation of a local life insurance company consisted of mixed opinions. CLICO quickly became the largest insurance company in Trinidad and Tobago. “In CLICO’s first year of operations, through selling Industrial Health and Accident and Life Insurance products with a unit premium of six cents per week, the insurance agents were able to collect a booming $21,472.25 in premium and policy fees. A surplus of $636.18 was realized in that year alone.”249 CLICO’s imposing presence in Trinidad and Tobago and across the region, coupled with its phenomenal business success made it the entrepreneurial flagship of the entire Caribbean.250

In the wider Caribbean region, the flagship of CLICO, CL Financial, was the major privatelyowned corporation in the region who provided insurance, financial services, real estate, manufacturing, forestry and agriculture, distribution and retail, energy, media and communications.251 CL Financial was located in thirty-two countries via various associated and joint venture companies and more than sixty-five subsidiaries spanning the Commonwealth Caribbean, Florida, Europe, the Middle East and Asia.252 CL Financial controlled total assets in excess of TT$100 billion; owned 55 percent majority ownership of Republic Bank, which is the largest and most prominent bank in Trinidad and Tobago, owned Methanol Holdings of Trinidad Ltd. which operates M5000, which is the world's largest methanol plant at Point Lisas and controlled BA (British American Insurance Company.) This company had a few branches which possessed assets worth more than TT$38 billion, which is more 25% of T&T’s Gross Domestic Product.253

CLICO underwent 3 fundamental development stages. In Phase One, this concerned the first forty years of CLICO’s existence. During these first forty years, Colonial Life grew steadily and operated strictly within the confines of a conventional life insurance company committed to regionalism. C L Duprey established life insurance agencies in the south of Guyana, to the north in Jamaica, however, Trinidad and Tobago remained its ultimate base and about 85% of its business was obtained right in Trinidad and Tobago. A subsidiary was also established in the United Kingdom. CLICO held investments in British Government securities, company

249 Ibid

250 Wayne Soverall, “CLICO: The Rise and Demise of a Caribbean Conglomerate”, (Department of Management Studies, UWI Cave Hill) February 2012

251 Ibid

252

253

stocks and shares, mortgages and project financing. At the end of these forty years, CLICO’s assets stood at TT$125 million.254

During that period, COLFIRE was incorporated, and a decision was taken in 1977 to acquire the T&T portfolio of Confederation Life Insurance Co.255 Nevertheless, management remained consistent throughout this phase.

Phase Two occurred during the year 1978 up until the year 1986. During these next ten years, a lot of economic activity was experienced in Trinidad & Tobago as the so-called â-oil boomâ stimulated construction, increased salaries and employment and an industrialization program was embarked upon by the Government. Along with this, there was also the acquisition of the Confed. CLICO’s portfolio increased insurance sales to the extent that its assets increased to 4815 million at the end of that period. There was little change in its original philosophy during this phase, which remained solely life insurance oriented. However, the pressure of finding suitable investments influenced the company to acquire two branch banks operations in Barbados, Citibank and Chase Manhattan. At this time, CLICO also established two insurance subsidiaries were also incorporated in Barbados. At the end of this decade, CLICO’s investment strategy changed to one of a particularly diverse palette and entered the primary financial market through direct investments in enterprises of its selection.

Phase Three depicts the period from 1987 till shortly before the collapse of CLICO. It is documented that the “most significant event which took place during this period was the appointment in 1987 of Mr. Lawrence Duprey as Chief Executive; and with his appointment emerged a new management team, a new philosophy and a new investment strategy.”

Mr. Lawrence Duprey, being heavily inspired by his experience in Barbados and the Eastern Caribbean, as well as using his international connections, made it his mission to transform the entire character of CLICO. CLICO expanded their portfolio to profitably exploit the natural resources of the Caribbean through export-oriented enterprises. This philosophy was growth; the experience was phenomenal, direct investments were made in property companies such as shopping malls and or supermarkets, energy companies, forestry and or wood products groups and financial services. Further, CLICO expanded to the CLICO Conglomerate and at the end of this phase, the total assets of the CLICO group were totalled at US$2.5 billion as compared to $135 million in 1986.

CLICO’s impressive business portfolio was unfortunately not substantive enough to prevent the financial institution’s collapse, however. Soverall posits that CLICO’s demise was attributed to many factors but two will be discussed, namely a flawed business model and the lack of effective corporate governance. These two factors were the most crucial to the company’s demise.

Firstly, the flawed business model of CLICO plagued them and played a majorly significant role in the collapse of CLICO on January 30th, 2009. As stated previously, CLICO was a subsidiary of the parent company, CL Financial. However, CLICO functioned as the primary source of deposits that were used to finance CLF’s expansion through investments and acquisitions held in the name of other entities in the group. “The nature of the ownership structure of these enterprises significantly varied. Some were wholly owned and managed by CL Financial, others were simply investments that CL Financial did not participate in managing, and some were a mixture of both. In some cases, CL Financial borrowed from other subsidiary financial institutions to invest, and in most cases, it used CLICO, Clico Investment Bank Limited (CIB), British American Insurance Company (BA), or Caribbean Money Market Brokers (CMMB) as the conduit to purchase investments or borrowed from them to do so. In short, CLICO became the guarantor for many of CLF’s assets most of which were heavily pledged and, therefore, limited in terms of the potential proceeds from asset sales.” Soverall furthers this point by positing that because of this, both CLICO and Clico Investment viewed as isolated cases of an overly aggressive and risky business model.

It is respectfully submitted that the entire concept of CLICO’s business model operated arguably along the lines of a Ponzi scheme because it would take consumers depositing extremely large amounts of deposits on a short-term basis, all the while still paying high interest rates, which were then used for long-term investments that resulted in significant cash flow problems which precipitated CLICO’s eventual collapse.256 On June 7th, 2011, the Central Bank of Trinidad and Tobago alleged that CLICO operated both an external Ponzi scheme in which the life insurance company took in new money from policyholders and mutual fund investors as well as an internal Ponzi scheme in which money was diverted or misappropriated away

256 Lester Henry, “The CLICO Bailout: Issues, Impact and Implications for T&T and the Wider Caribbean”, (Department of Economics Forum, Learning Resource Centre, University of the West Indies, St. Augustine) February 12, 2009.

from CLICO to fund CLICO Investment Bank, CL Financial or any other group entities within the CLICO conglomerate….257

Secondly, Soverall posits that the corporate governance structure of the conglomerate CL Financial must be factored into the examination of CLICO’s collapse because although the business model was high risk and dangerously flawed, the regulators were not blameless. Ewart Williams instructs that the evidence indicated that the “soft touch approach to regulation” which was essentially based on moral suasion while aligned to the philosophy of the market mechanism had led to the excesses that caused the CLICO crisis.258 It is concurred that the corporate collapse of CLICO, more than anything, highlighted the critical need for legislation and regulation to keep pace with the rapidly evolving operations of financial institutions.259A corporate governance legislation within every country is required to ensure that regional regulators have supervisory authority over the operations of the conglomerate or holding company structure which has now become the preferred form of organization for large financial institutions such as CLICO.260 In addition to the regulatory gaps, the CLICO case perfectly illustrates that poor corporate governance, weak risk management practices, and inadequate management information systems were also major contributing factors that led to the collapse of CLICO.261 Further, the CLICO case acts as the perfect physical manifestation of an example of the demise a lack of good corporate governance eventually leads to.

Soverall identified some of the deficiencies in CLICO’s corporate governance structure to be too much control by the chairman,262 who also held the position of the Chief Executive Officer, the failure of directors to carry out their fiduciary duties and failure to abide to their duty of care and as well as a prominent lack of skill, conflicts of interest, poor risk management as

257 “Trinidad Central Bank claims misuse of CLICO funds,” (Daily Nation Newspaper) June 11, 2011.

258 Ewart Williams, Governor, Central Bank of Trinidad and Tobago, Opening Address on “The Future of the Financial Industry After the Crisis,” (The Caribbean Centre for Money and Finance 14th Caribbean Business Executive Seminar, Port of Spain) April 30, 2010.

259 Note, this legislation and regulation Wayne speaks of his in article is simply the development and institution of a corporate governance guideline, or code/act. Seeing as CLICO collapsed in 2009, and this article was produced in 2012, this information represents the former state of the law prior to the Trinidad Corporate Governance Code being brought into force in 2013. This will be examined further within this chapter.

260 Ibid

261 Ibid

262 This is a major red flag as just with politics where if the majority of the parliamentary seats are held by the same political party there will be little opposition and as such, all decisions made will be onesided, like-minded and heavily biased.

previously stated, strong political influence and overall weak supervision by the Central Bank of Trinidad and Tobago. However, there were signs that CLICO was going to collapse way before 2009. A 1998 Report of the Office of the Supervisor of Insurances had raised the red flags on the affairs of CLICO. “The Report indicated that CLICO had failed to satisfy its STAT fund, which was a safeguard used to ensure the dependability of life insurance institutions. The fund recorded a TT$62.4M deficit in 1992, a $1.3M deficit in 1993, a $64.7M deficit in 1995, a $574.1M deficit in 1996, and a $690M in 1997. It also stated that CLICO was “essentially bankrupt,” illegally paid dividends though the STAT fund was in scarcity, understated liabilities by not submitting adequate actuarial certificates, and was using policyholders’ funds to offer guarantees to affiliates. CLICO had also requested the Office of the Supervisor of Insurances to approve a debenture for TT$571M from CL Financial. The Office refused noting the company’s low returns and the lack of free assets to support the debenture as well as the company defaulting in 1996/1997 on payment of $4M on a debenture already issued to CLICO in 1992. This was a result of CLICO’s loan to CL Financial which increased from $350M in 1995 to $571M in 1996.

A blind eye cannot be taken on the effect of a lack of good corporate governance by way of political corruption had on CLICO’s collapse as well. The Trinidad Express Newspaper reported that CL Financial and subsidiaries provided $TT 20 million for the People’s National Movement campaign in 2007 and that Mr. Lawrence Duprey also provided gifts and scholarships to the Panday family while Mr. Panday was Prime Minister.

Implementations

The entire region felt and still feels the effects of CLICO’s collapse. So much so that in 2018, compensation was only then being distributed through Reslife.263 Nonetheless, four years after the collapse of CLICO, the Government of Trinidad and Tobago brought into force the Trinidad and Tobago Corporate Governance Code 2013.264 The justification of this code was to enhance business governance and performance, strengthen transparency and efficiency in the market as well as improve the overall investment culture.265

263 “Nine years after CLICO meltdown, compensation begins” BNAmericas News Article, March 10th 2018.

264 Trinidad and Tobago Corporate Governance Code 2013

265 Ibid

The code encompasses five main principles. Principle one is to establish a framework for effective corporate governance. To do so, the code instructs that every company should be headed by an effective Board to ensure the long-term victory of the company.266 Principle two is strengthening the composition and performance of board and committees since there should be a balance of independence and diversity of skills, knowledge, experience, perspectives and gender among Directors to ensure that the Board works effectively.267 Principle three is to reinforce loyalty and independence since all Directors should act honestly and in good faith, in the company’s best interest.268 Principle four is to foster accountability since the board should present an accurate and understandable assessment of the company’s performance, position and prospects.269 Lastly, principle five is to strengthen relationships with shareholders to facilitate their ownership rights and engagement with the company.270 Within each principle excellent recommendations are provided which should be legally binding requirements of every corporate and financial institution within Trinidad and Tobago. The Code is only intended for all companies with public accountability for voluntary adoption under an “apply or explain” basis.271

Ultimately, while the implementation is appreciated, it is not substantive. CLICO was too big of a devastation for Trinidad to implement a voluntary adoption code; these principles should be legally mandatory. When compared to the Revised Barbados Corporate Governance Guideline 2022, this code does not actively place a duty on corporate and financial institutions to abide to corporate governance.

Recommendations

1. A proper corporate governance body and authority must be established as soon as possible. There must be legally binding rules set out for director’s duties, shareholder responsibilities, auditor responsibilities etc which require and promote transparency, responsibility and a high level of accountability from each member of the board, where if breached strong consequences follow. The expectancy, however, is that the rules and requirement be abided to in the first instance.

2. Training and education are crucial for each board member to ensure that each position and duty is executed as expected.

3. The disbursement of funds to political parties must be supervised and controlled since bribery is prominent in Trinidad. Bribery must be acted upon now and can be dismissed through the removal and or prosecution of corrupt CEOs, directors and or government officials, along with the call for regular audit reports and implementing Compliance Units within both the Government and corporate institutions.

VII. Final Recommendations

Firstly, while regulation needs to focus on corporate governance, it also needs to focus on risk governance and management in order to prevent further financial scandals and by proxy, financial fraud and economic crime. Both crises discussed revealed severe gaps in existing regulation which need to be filled. To be successfully executed however, there needs to be the implementation of governing corporate governance body to enforce these saving factors. There needs to be an overseeing body because even with codes and guidelines corporate crimes are prevalent. Further, the government needs to implement harsh considerations with appropriate sanctions to overhaul the regulation of the financial services sector within their countries.

Secondly, when auditors fail to execute their duties, they directly fail to implement proper corporate governance. For example, the auditors for both Trade Confirmers (Barbados) Ltd and CLICO failed to mention the fact that these companies did meet their obligations under the STAT Fund within any audited statements. Therefore, there must be a stricter call for the adherence to their respective chartered Accountant’s Act by all auditors and commensurate sanctions for contraventions.

Thirdly, the Government must be careful with their injections into big financial and corporate institutions, especially where there is a lack of transparency and eminent presence of discrepancy in their annual financial statements for example. This is because taxpayers bear and foot the consequences of ineffective regulation the most. Trinidad and Tobago till this day is still recovering the hole driven into their economy by the large injection ($TT 7 billion) into CL Financial.

Lastly, one person should never hold the position of Chief Executive Officer and Chairman at the same time. There must be a dichotomy between the two positions. CLICO is the classic example of the need for this dichotomy as Mr. Lawrence Duprey held both positions.

Unfortunately, this paper concludes with the forewarning that the recommendations provided will do no good for the Commonwealth Caribbean unless our governments take affirmative action against the lack of corporate governance and dramatically alter their economic regulation. It is hoped that this paper will further awaken the eyes of our governments because it is clear, after extensive research, that the Caribbean still has not fully learned their corporate lesson. Trade Confirmers Ltd collapsed an entire twenty-three years before CLICO did and yet, they both collapsed extremely similarly and because of the same deficiencies. They both ignored director’s duties and other salient corporate governance requirements and as a result, both failed. The Caribbean has the chance now to implement effective corporate governance to prevent future occurrences of financial and economic crimes and scandals.

Have Commonwealth Caribbean Courts been Consistent in Interpreting Non-Discrimination and Equality Rights in Sex Discrimination Cases?

Paul Mc Burnie

Abstract

Courts across the Commonwealth Caribbean have been faced with a plethora of sexual discrimination cases. National courts apply several approaches of interpretation when determining whether one’s right to freedom from discrimination on the basis of sex has been contravened. A review of the approaches to constitutional interpretation utilized by courts points to the fact that earlier approaches, mainly textualism and originalism, restrict the courts’ interpretation. On the other hand, modern-day approaches of purposivism along with analogous grounds and the use of international law provide for a more expansive interpretation, facilitating protection against discrimination on the basis of sex. However, a clash in the approaches used by the two apex appellate courts of the Commonwealth Caribbean, coupled with the fact that various jurisdictions are bound by stare decisis to follow the diverging precedent of these two courts, has caused inconsistent interpretation and bestowal of rights and protections in sex discrimination cases. Highlighting the inconsistent interpretation by courts across the Caribbean, leads this article to provide some thoughts on the approach that gives effect to the full measure of fundamental rights and freedoms, including non-discrimination rights.

I. Introduction

The Caribbean Courts interpretation of non-discrimination rights and equality rights, particularly on the grounds of sex, continue to be closely scrutinized by Caribbean judges and legal academics alike. Even twenty-one years after the establishment of the Caribbean Court of Justice (CCJ), Caribbean courts are continuously charged with the responsibility of interpreting fundamental rights and freedoms generously in order to endow citizens with the fullness of their rights.272 This includes the right to freedom from discrimination on the grounds of sex, colour, creed, race, political opinions or place of origin as seen in section 13(3) of the Constitution of Grenada, and the right to equality as seen in section 4(b) and (d) of the Trinidad and Tobago Constitution – providing the right to equality before the law, protection of the law, and the individual’s right to equal treatment from any public authority in the exercise of any functions.

Markedly, there exist diverging views regarding the interpretation of fundamental rights, including non-discrimination rights, as the approaches and judgements of the CCJ are broadly dissimilar to those of the Judicial Committee of the Privy Council (Privy Council). The Privy Council remains unwavering in adopting a restrictive approach of constitutional interpretation, derived mainly from reliance on textualism and originalism, which is maintained even when interpreting fundamental rights. However, the CCJ’s adoption of a purposive and expansive approach to the interpretation of fundamental rights and freedoms, depicts a completely different route to that taken by the Privy Council. Notably, the approach to be taken by Caribbean Courts in their interpretation of non-discrimination rights on the basis of sex remains important, as their rulings can either contribute to the continued progression of sound West Indian jurisprudence in the area of sex discrimination or can reverse decades of precedent.

This paper contends that in sex discrimination cases, courts across the Commonwealth Caribbean have been inconsistent when interpreting the non-discrimination and equality provisions contained in Caribbean constitutions. The author first examines the court’s general treatment of grounds of discrimination, and explores the approaches to constitutional interpretation, those of which are utilized when interpreting the scope of discrimination on the basis of sex. The author then discusses whether there has been consistency in the Caribbean courts interpretation of non-discrimination rights in sex discrimination cases, addresses the challenge posed with the conflicting views of the Privy Council and the CCJ, and finally forms

the view on which approach is consistent with giving effect to the plenitude of fundamental rights within the constitutions of the region.

II. Grounds of Discrimination

A. The Courts general treatment of grounds of discrimination

Discrimination is defined as “affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.”

273 As noted by Justice Barrow in A-G of St. Christopher and Nevis et al v Jones, 274 the crux of discrimination is different and less favourable treatment. In cases of alleged discrimination, the burden of proof rests on the claimant to establish that the treatment he received was different and less favourable by comparing his treatment to that of another person in a similar situation, whether fictional or not. This rule is known as the comparator approach, established in Bhagwandeen v A-G of Trinidad and Tobago 275 While in Bhagwandeen it was noted that constitutional relief will not be granted where the claimant fails to establish a comparator,276 the case further brought out that the comparator must be one where similarity is shown on the issue of the alleged discriminatory act; not just mere similarity as to a specific fact of the case. In that case the appellant police constable had been selected for promotion in 1984 under public service regulations.277 The appellant was subsequently suspended and then reinstated in 1998 following the dismissal of charges of assault. However, following his reappointment, the appellant was disqualified from promotion due to his long suspension from duty. He filed a constitutional motion claiming discrimination because of the Commissioner’s refusal to recommend him for promotion, contrary to section 4(b) and (d) of the Constitution. Though the appellant’s comparator was Sergeant Fitzgerald George, who received a promotion about

273 s 13(3) of the Constitution of Grenada; s 13(3) of the Constitution of St. Vincent and The Grenadines; s 12(3) of the Constitution of St. Lucia; etc.

274 KN 2003 HC 37 [31]. Kaleel Jones was refused entry into school until he had complied with the rule that boy’s hair must be cut short as per the rules and regulations of the school related to uniform and appearance. The claimant contended that the rule was discriminatory on the basis of sex because it discriminated against boys. Though affirmed following judicial review, the State appealed and the Supreme Court overruled the decision stating that different and less favorable treatment is the meaning of discrimination; not merely different treatment.

275 [2004] UKPC 21 [18].

276 Bhagwandeen (n 275)

277 Ibid

seven months after his reinstatement following a long period of suspension, the Sergeant was rejected as a legitimate comparator on the grounds that the only similarity was the length of the suspension278 which the court determined to be irrelevant. The comparator must be a similarly circumstanced person279 and if this is not demonstrated one would have no basis for a claim of discrimination. The Court’s treatment of Mr. Bhagwandeen’s claim is testimony to the fact that different and less favourable treatment is the root of discrimination.

The comparator approach has also been adopted in the Trinidad and Tobago Constitution. In the case of Webster et al v A-G of Trinidad and Tobago, 280 it was noted that the current approach to section 4(d) of the Trinidad and Tobago Constitution is that the acts of discrimination must be analogous, comparable, or broadly similar; not identical. Any differences between them must be material to the difference in treatment.281

A distinction is drawn between discrimination and equality as they convey slightly different meanings within the constitutional law framework. As such, the Court’s general treatment and interpretation of the two differs. From gleaning the anti-discrimination provisions of conventional model constitutions, it is observed that the broad language of equality is strikingly absent. Case in point, section 12(3) of the Constitution of Grenada, defines discrimination to a specific set of enumerated grounds – race, place of origin, political opinions, colour, creed or sex. As a result of this clear-cut definition of discrimination, courts have asserted that the language means that conventional model constitutions do not guard against any whimsical ground of discrimination. Simply put, courts customarily interpret non-discrimination provisions as meaning that the only prohibited grounds under which constitutional claims of discrimination can be brought, are those explicitly stated in the provision.

Equality is a much broader concept than discrimination. Section 4(b) the Trinidad and Tobago Constitution provides “the right of the individual to equality before the law and protection of the law”, and section 4(d) provides “the right of the individual to equality of treatment from any public authority in the exercise of any functions.” Similar provisions are also seen in the Constitution of Jamaica which transitioned by way of amendment, from the conventional model constitution to the Trinidad and Tobago model. Courts have asserted that the general language of equality used in new model constitutions means that claims for discrimination are

not strictly limited to those listed grounds within the equality clause. Rather, it allows numerous kinds of less favourable treatment to be brought through the door of the court, for constitutional challenges.

B. Inclusion of sex as a prohibited ground of discrimination in specific Commonwealth Caribbean countries

Several Commonwealth Caribbean countries have included either the general principle of equal treatment or have chosen to define the grounds of discrimination within the non-discrimination provisions of their constitutions. Sex is included as a ground of discrimination in the constitutional provisions of the following Commonwealth Caribbean countries: Grenada, St. Lucia, St. Kitts and Nevis, St. Vincent and the Grenadines, Antigua and Barbuda, Belize, Dominica, Guyana, Trinidad and Tobago, Jamaica, Montserrat, The Cayman Islands, Anguilla, Turks and Caicos and The British Virgin Islands Citizens in these jurisdictions are explicitly afforded a constitutionally protected right against discrimination on the grounds of sex. This inherently saves the court time in determining one step of a sex discrimination action in these jurisdictions – whether sex is a ground of discrimination provided for under the constitution. Notably, Montserrat, Turks and Caicos and the British Virgin Islands are the only jurisdictions that have also expressly included sexual orientation as a basis of discrimination.

C. Non-inclusion of sex as a prohibited ground of discrimination in specific Commonwealth Caribbean countries

While the concept of equality and non-discrimination is intrinsic in Commonwealth Caribbean constitutions, sex is not a listed ground of discrimination within all Commonwealth Caribbean constitutions. This is seen in the jurisdictions of Barbados, Bahamas and Bermuda. Such an omission begs the question: can one legitimately discriminate against another on the basis of sex and there be no constitutional remedy for the individual disproportionately affected? Can sex be treated as an analogous ground and thus be read into the non-discrimination provision?

Strikingly, section 13(3)(i) of the Constitution of Jamaica provides the right to freedom from discrimination on the grounds of, inter alia, being ‘male or female’. This rare crafting of sex as a ground of discrimination unveils Jamaica’s attempt to ensure that sex does not include sexual orientation. However, a later examination of case law will instinctively answer whether Jamaica’s peculiar crafting of its sex discrimination provision bar the courts from treating sexual orientation as an analogous ground to be read into the non-discrimination provision.

III. Discrimination on the Grounds of Sex

A. Early approaches to interpreting the scope of discrimination on the basis of sex

1. Textualism and Originalism (Restrictive approaches)

While some academics have classed textualism and originalism as two separate theories of constitutional interpretation, the author contends that they in fact work in tandem and give effect to the same result. Textualism focuses on what a stated piece of text reasonably means when read, rather than focusing on what it was intended to mean, so as to give effect to the text’s objective meaning.282 In the context of constitutional interpretation, Professor Caleb Nelson asserts that textualism considers the “legislative process as a black box that spits out the laws to be interpreted”283 and that one must be held to these legal requirements that are clearly stated.284 The textualism theory, also referred to as the plain meaning theory, ought not to be dubbed a ‘theory’ per se because this manner of interpretation can be deemed as second nature to any average reader. Reading a text to understand what is stated in print, is the first thing all human beings naturally do. The view that textualism should not be labelled a ‘theory’, has been embraced by Professor Robert Post asserting that the approach is a depiction of what is normally done when there are no contentions with constitutional meanings.285

Originalism, focuses on the Constitution and its provisions being interpreted according to its original meaning, so as to prevent judges from making unguided value judgements of their own and changing constitutional provisions through judicial interpretation.286 This approach is backed by several notions such as: constitutions were enacted with a certain meaning prior to being subject to judicial interpretation; changing the meaning of a law equates to changing that law; where constitutional interpretation results in changes to the constitution, its undermines democracy, the rule of law, and the constitution as a whole.287 In essence, originalism suggests that constitutional amendments and other constitutional law processes are the avenues for making changes to constitutional provisions; not judges.

These approaches denote that the courts must remain within the four corners of a black box of laws and are restricted from venturing outside of it to consider legislative intent. Textualism

282 Caleb Nelson, ‘What is Textualism’ (2005) 91 Virginia Law Review 352, 356.

283 Ibid 358.

284 Ibid 352.

285 Robert C. Post, Law and Order of Culture (University of California Press 1991) 14.

286 Arvind Datar and Rahul Unnikrishnan, ‘Interpretation Of Constitutions: A Doctrinal Study’ (2017)

29 National Law School of India Review 136, 139.

287 Ibid 140.

provides the least scope for inventiveness and curtails judicial discretion.288 Originalism produces an equivalent result. With regards to non-discrimination rights in sex discrimination cases, several cases have depicted the Privy Council adopting the approaches of textualism and originalism by refusing to grant relief for discrimination claims on the grounds of sex, where sex was not expressly included within the words of the antidiscrimination section. In Poongavanam v R (Mauritius)289 a man who was convicted of murder and sentenced to capital punishment by an all-male jury of nine claimed, inter alia, that the omission of women from the jury service was discriminatory on the basis of sex, contravened sections 3 and 16 of the Constitution, and therefore violated his right to fair trial. The Court held that sex was a basis for discrimination merely within the opening section of the Bill of Rights of the Constitution (section 3), however it was excluded in the antidiscrimination section (section 16(3)). Lord Goff of Chieveley, asserted that the opening section was unable to ground discriminatory claims because its exclusion in the antidiscrimination provision was deliberate. As such, the Court held that there was no discrimination on the basis of sex. The same reasoning was also applied and followed in an earlier case – Peerbocus v R 290

Notably, the reason for this distinction between the enforceability of rights in the opening section and enumerated section of the constitution has continuously been lauded by the Privy Council. In Newbold v The Commissioner of Police291 the Privy Council reasoned that the opening section of constitutions outlines the ensuing enumerated provisions that shall have effect, and because the opening section does not form part of the binding enumerated provisions it cannot be separately justiciable. The Privy Council stated that because of the preambular nature of the opening section it was not intended to convey substantive rights of protection for citizens.292 This was also affirmed, for similar reasons, in Matadeen et al v Pointu et al293 where the Privy Council pronounced that equality provisions in the opening section of the Bill of Rights cannot be construed as freestanding rights and that they are incapable of independent enforcement. As such, a discriminatory claim can only be brought under one of the grounds enumerated in the antidiscrimination provision. Notably, all the aforementioned judgements were delivered before the advent of the revolutionary decision of Nervais and Severin v R294

288 Datar, (n 286).

289 [1992] UKPC 13.

290 [1991] M.R. 90.

291 [2014] UKPC 12 [32]–[33].

292 Ibid.

293 (1998) 229 NR 369 (PC).

294 [2018] CCJ 19 (AJ) [41]

where the CCJ engaged in an expansive interpretation of the redress clause and pronounced that rights stated in the opening section of Constitutions are justiciable, regardless of being excluded from the detailed provisions. The author is of the view that this decision has paved the way for the CCJ’s expansive interpretation of the scope of antidiscrimination provisions.

Another case where the restrictive approaches of textualism and originalism were adopted is Nielsen v Barker and Anor. 295 Here, the Court of Appeal of Guyana held that sex was not expressly included as a basis for discrimination within the non-discrimination provision (Article 149(2)) of the Constitution, and so claims of discrimination on the grounds of sex would not prevail.

Massiah JA reasoned that the word discriminatory possessed a limited and precise meaning and its application must be confined to the narrow definition and grounds prescribed in Article 149(2). He further asserted that the enforcement of grounds not stated within the detailed section, is outside the scope of constitutional guarantee “no matter how reprehensible such grounds may appear to be.”296 Massiah JA’s approach proves to be a strong example of both approaches working in tandem – declaring that the discriminatory provision when read reasonably means that only the grounds listed are bases for discriminatory protection (textualism), and that this original meaning of the provision must be upheld absolutely (originalism). Such forceful dicta by Massiah JA reveals the extent to which the Court was willing to go to uphold the letter of the law, even to the detriment of the same citizens it was intended to protect.

Fast forward to the present, the approaches of textualism and originalism continue to operate within some jurisdictions of the Commonwealth Caribbean. In Jeffers et al v A-G of St. Christopher and Nevis297 a police officer had circulated a sexually explicit recording of the claimant engaging in sexual activity in private at home. The claimant, a homosexual and citizen of St. Kitts and Nevis, initiated a constitutional motion claiming that sections 56 and 57 (buggery and sodomy laws) of the Offences Against the Person Act (“OAP”), contravened constitutional rights afforded in sections 3, 12 and 15 of the constitution (the right to protection of personal privacy, the right to freedom of expression, and the right against discrimination based on sex respectively). He sought a declaration that sections 56 and 57 of the OAP were

null, void and of no effect on consensual sexual intercourse in the privacy of the home between individuals above the age of majority.298

On this issue of discrimination on the grounds of sex, the claimant argued that the Act violated his right to equality of treatment because it discriminated against gay men. He contended that discrimination on the grounds of sex can be read to include sexual orientation299 relying upon, inter alia, General Comments on the Convention on the Rights of the Child and the Convention on the Elimination of Discrimination Against Women which had been ratified by St. Kitts.300 However, the High Court relied on a narrow meaning of ‘sex’ asserting that the natural and ordinary meaning of the word refers to gender, that sexual orientation is not the same as gender, and that sexual orientation is not a prescribed ground for discrimination.301 The Court’s reasoning, inter alia, was that while acts of buggery and sodomy may or may not be an expression of sexual or gender identity,302 the Court regarded these acts as gender neutral as the offence can also be carried out between males and females and between heterosexual and homosexual males.303 The Court declined to grant a declaration of discrimination on the grounds of sex, but ultimately struck down Sections 56 and 57 of the OAP by declaring that it contravened the rights to freedom of expression and protection of personal privacy. This reasoning was also briefly hinted at in Jones v A-G of Trinidad and Tobago304 where Rampersad J held that the buggery and serious indecency laws in Trinidad and Tobago breached the claimants right to freedom of expression, among other things. Though claims of discrimination on the basis of sex was not submitted, the Court in its judgement shot down the thought of such a contention stating that the offences applied to both men and women.305 While the author agrees that sex discrimination cannot arise where the law applies to both sexes equally; where the law produces a more disproportionate effect on one sex more than other, it can equate to sex discrimination.

Nonetheless, it cannot be ignored that the Privy Council and Courts of Caribbean jurisdictions that have acceded to the Privy Council’s appellate jurisdiction, use pointlessly technical arguments to justify their constricted interpretation of non-discrimination rights. Although, the

298 Ibid.

299 Ibid [83] [95].

300 Ibid [95].

301 Ibid [101].

302 Ibid [103]–[105].

303 Ibid.

304 TT 2018 HC 137.

305 Ibid [87].

Privy Council took one step forward with the introduction of the ‘living tree doctrine’ which promoted a broad and liberal reading of the Constitution so that it becomes adaptable with the changing times,306 they have taken ten steps backward by failing to maintain the application of the doctrine in the judicial interpretation of fundamental rights and freedoms. The Courts hide behind the notion of giving effect to the intention of the drafters (as seen in Newbold307) and so they engage in trite application of the law in order to escape the challenges of judicial interpretation and becoming ‘social engineers.’ This laissez-faire approach proves to be flawed. The Privy Council fails to appreciate that courts must use the notion of the framers’ intention flexibly to interpret the language of the constitution and its surrounding circumstances and context.308 This assertion which was made by Professor Tracy Robinson, is indeed merited as fundamental rights must be interpreted generously to endow citizens with the full measure of those rights as constitutions are sui generis instruments.309 This principle equally applies to non-discrimination rights.

B. Modern day approaches to interpreting the scope of discrimination on the basis of sex

1. Purposivism (Expansive approach)

Purposive interpretation, also referred to as purposivism, strikes a balance between subjective purpose i.e., the intent of the drafters of the constitution, and objective purpose i.e., the intent of the system.310 The approach underscores that the meaning to be ascribed to fundamental rights and freedoms ought to be determined from an analysis of the purpose of such guarantees.311 Academics have noted that purposive interpretation came about in response to the textual insufficiency of constitutional provisions and from an effort to avoid the contentions that courts are using judicial decision making as a disguise to engage in law making.312 Purposivism allows for the expansive interpretation of fundamental rights so as to be on par with societal developments, without deviating from the central principles that led to the establishment of those fundamental rights.313 The latter is of critical importance because the

306 Edwards v A-G of Canada [1930] AC 124.

307 Newbold (n 291) [24]–[25].

308 Tracy Robinson, Arif Bulkan and Adrian Saunders, Fundamentals of Caribbean Constitutional Law (Thomson Reuters 2015).

309 Fisher (n 272).

310 Datar, (n 286) 143.

311 Ibid.

312 Benjamin Oliphant, ‘Taking Purposes Seriously: The Purposive Scope And Textual Bounds Of Interpretation Under The Canadian Charter Of Rights And Freedoms’ (2015) 65 University of Toronto Law Journal 239, 252.

313 Datar, (n 286) 143.

fear that tends to arise is not that a plain reading of fundamental rights would protect too little, but that it would protect too much. While such arguments are merited to a certain extent, the constitution has already contemplated such problematic instances of an abuse of rights by citizens, hence providing a finite or closed list of grounds for protection of rights. This is evidently seen in non-discrimination provisions. While the author agrees with Oliphant’s assertions that there are instances where courts have used purposivism as a constraint on constitutional meanings so as to limit the broader interpretation of a right,314 the reader is reminded that this would only amount to purposivism where an assessment is made of the purpose for which the constitutional provisions were included. Where constraints on constitutional meanings emanate from merely confining constitutional interpretation to the four walls of the enumerated grounds this would not amount to purposivism and thus cannot be regarded as such. Notably, the crux of purposivism, particularly in sex discrimination cases, involves going beyond this by allowing the decision maker to venture outside the textual structure of the provision in discrimination claims comparable to the listed grounds. However, the decision maker must still be constrained to the principles and purposes that underly the text.315

2. Analogous grounds

In the context of discrimination, the doctrine of analogous grounds focuses on extending express grounds of discrimination to include other bases for discrimination that are conceptually comparable to other personal characteristics within the enumerated provisions.316 Corbiere v Canada (Minister of Indian and Northern Affairs)317 asserted that the listed grounds of discrimination are personal characteristics that are immutable or changeable only at an unacceptable cost to personal identity. As such, to class an unlisted ground of discrimination as analogous to the listed grounds it must be determined whether a particular personal characteristic is immutable or changeable in the same vein as expressed above (immutability test).318 Analogous grounds ought to be based on characteristics that one cannot change or that the state has no legitimate interest in expecting one to change to receive equal treatment under the law.319 In Canada, the enumerated grounds of discrimination are those explicitly listed in

314 Oliphant, (n 312) 255.

315 Oliphant, (n 312).

316 Rosalind Dixon, ‘The Supreme Court of Canada and Constitutional (Equality) Baselines’ (2013) 50 Osgoode Hall Law Journal 637, 643.

317 [1999] 2 SCR 203 [13].

318 Ibid.

319 Dixon, (n 316) 649.

the non-discrimination section (section 15(1)) of the Canadian Charter of Rights and Freedoms (i.e. national or ethnic origin, race, sex, religion, color, age, and physical/mental disability). Through the doctrine of analogous grounds, the Supreme Court of Canada has extended this list to recognize comparable grounds of discrimination to those expressly listed – those comparable grounds being marital status, citizenship, sexual orientation, aboriginal residence.320

3. International law

The Equal Rights Trust Declaration on the Principles of Equality asserts that the right against discrimination is a fundamental and free-standing right, included in the right to equality.321 This forms part of international human rights law. In addition, the Universal Declaration of Human Rights (UDHR) notes that everyone is entitled to all the rights and freedoms within the declaration ‘such as’322 the bases listed. By virtue of the word ‘such as’ the grounds for discrimination that are listed are not constricted. Rather this provision provides the elasticity for an expansive interpretation to read other bases of discrimination into it. As such, antidiscrimination provisions of a constitution should also be interpreted bearing in mind a state’s international legal obligations which promotes an open listing of grounds for discrimination.

The CCJ advances that states ought to be compliant with international obligations forming part of the rule of law Where a State ratifies an international treaty which forbids discrimination on the grounds of sex (e.g., International Covenant on Economic, Social and Cultural Rights) and/or has open listed grounds of discrimination, the relevant international treaty would create binding obligations for the state. In dualist systems where a treaty is both ratified and incorporated it will form part of the state’s national laws and its provisions will have binding effect upon the state. This means that the rights within the treaty can be enforced by a citizen claiming discrimination based on sex, where sex may be excluded as a listed ground in the antidiscrimination section of the constitution. Even where a dualist state has merely ratified but not incorporated an international treaty, a citizen can rely on the principle of legitimate expectation as where a state agreed to be bound by international legal obligations, the state expresses the likelihood of its intentions to comply with such obligations.323

320 Ibid 642.

321 The Equal Rights Trust, Declaration of Principles on Equality Section 4 (2008).

322 Art. 2, The Universal Declaration of Human Rights (1948).

323 Fisher (n 272).

The following cases demonstrate the author’s view that purposivism, along with other modernday approaches, can lend to expansive approaches in interpreting the scope of discrimination on the grounds of sex. Orozco et al v A-G of Belize324 depicts both purposivism and the doctrine of analogous grounds operating in tandem. The claimant, a homosexual man, challenged the constitutionality of section 53 of the Criminal Code to the extent that it applied to anal intercourse between two consenting male adults in private. The claimant contended that criminalization of his sexuality was, inter alia, a breach of his right to equality afforded by section 6(1) of the Constitution.325 Though ‘sex’ was a ground for discrimination and not ‘sexual orientation’, the Court engaged in an expansive reading of the listed grounds to include sexual orientation. Markedly, this was done by relying on the 1966 International Covenant on Civil and Political Rights’ (ICCPR) meaning of the word sex which was interpreted by the UN Human Rights Committee (UNHRC) to include sexual orientation.326 Given that Belize had acceded to the ICCPR the Court held that the UNHRC’s interpretation was endorsed by the state and so the court was able to read the ground of sexual orientation into the detailed provision.327 Notably, the application of Canada’s immutability test would have been satisfied in this instance to regard sexual orientation as an analogous ground for sex. As such, it stands to reason that Corbiere328 was fit to serve as persuasive precedent in Orozco.329 Egan and Nesbit v Canada330 provides guidance as it is also illustrative of the Court’s adoption of purposivism. Here the word ‘spouse’ in the Old Age Security Act meant a person of the opposite sex and discriminated against two homosexual men. The court employed an expansive interpretation of section 15 of the Canadian Charter of Rights and Freedoms and used the doctrine of analogous grounds (using the immutability test) to declare discrimination on the grounds of sexual orientation, despite its exclusion from the detailed section. Interestingly, Bermuda has demonstrated an inventive means of giving effect to purposivism, and by extension protection against discrimination on the grounds of sex. To date Bermuda, along with Barbados and the Bahamas, have not listed sex as a ground for discrimination within the detailed provisions of their Constitutions. While there exists the option of making constitutional amendment which Bermuda has demonstrated an eagerness to work towards, the

324 (2016) 90 WIR 161.

325 Ibid [2].

326 Ibid [93].

327 Ibid [94].

328 Corbiere (n 317).

329 Orozco (n 324).

330 [1995] 2 SCR 513.

government made the bold move of enacting the Bermuda Human Rights Act (HRA) 1981. The HRA supplements the rights and freedoms endowed by the Constitution by extending the grounds for discrimination to include sex or sexual orientation.331 The author contends that Bermuda, while fully cognizant that its Constitution is a living instrument that must continue to be relevant to the present-day realities and needs of its society, but aware of the timeconsuming nature and rigors involved with constitutional amendments, took the approach of purposivism to an advanced level. The Act struck a balance between subjective and objective intent of discrimination, it was a permanent solution to the textual insufficiency of the provisions of discrimination within the Constitution, it maintained the core of the purpose which underlay the reason for the Constitution’s non-discrimination provisions, and it reduced the risk of the court engaging in judicial law making on issues of discrimination. The adoption of an advanced method of purposivism has afforded claims of discrimination on the grounds of sex or sexual orientation greater chances for success, as applicants rely upon the HRA. In A & B v Director of Child and Family Services and Anor332 an unmarried same-sex couple sought to legally adopt a child whom they were raising within their care. However, section 28(1) of the Adoption Act 2006 prohibited the plaintiffs from making a joint application for adoption because they were unmarried and were unable to marry in Bermuda. They contended that the Adoption Act was discriminatory on the basis of marital status because it precluded them from applying as a couple, and that it was discriminatory on the basis of sexual orientation because it was not open to them to become eligible to adopt as a couple by getting married.333 Relying on section 5 of the HRA and more importantly section 2(2)(a)(ii) of the HRA which afforded sexual orientation as a ground for discrimination, the court held inter alia, that the Adoption Act discriminated against same-sex couples because of their sexual orientation.334 From that point onward in Bermuda, less favorable treatment on the grounds of sex has continuously been declared discriminatory as the Courts have found support for interpreting this right in an expansive and purposive manner, despite its exclusion from the Constitution. Case in point, Godwin and Anor v The Registrar General 335 Here, two males who wished to be married were refused a marriage license by the Registrar citing reasons that marriage was between a man and a woman. The court declared, inter alia, that the Registrar’s

331 S 2(2)(a)(ii) Bermuda Human Rights Act 1981.

332 [2015] 4 LRC 658.

333 Ibid 659.

334 Ibid 669.

335 [2017] 3 LRC 596.

actions contravened the HRA by discriminating against the claimants’ sexual orientation and that same-sex couples were permitted to be married under the Marriage Act 1944.336

Other cases include Griffith et al v Minister of Home Affairs et al337 where section 27A of the Bermuda Immigration and Protection Act was discriminatory on the basis of sex because the immigration rights afforded to foreign spouses of Bermudian women were different and less favorable to the immigration rights of foreign spouses of Bermudian men. Also, Bermuda Bred Company v Minister of Home Affairs et al338 where the court affirmed discrimination on the grounds of sexual orientation because immigration rights that were afforded to spouses (man and woman) in section 25 and 60 of the Bermuda Immigration and Protection Act, were less favorable to the rights that could be enjoyed by same-sex partners because of their sexual orientation.

It is noteworthy that the judgement in Bermuda Bred339 shed light on the fact that even where statute is phrased in such a way so as to apply to ‘man’ and ‘woman’, this does not preclude the court from venturing outside the provision’s textual structure to extend it to an analogous ground, if necessary. As such, in Jamaica where prohibited grounds of discrimination include ‘being male or female’, the court can nonetheless rely on the doctrine of analogous grounds to ground a claim of discrimination on the basis of sexual orientation as was done in Orozco.340

IV. Is there Consistency in Commonwealth Caribbean Courts’ Interpretation in Sex Discrimination Cases?

A review of the case law discussed in the previous chapters demonstrate that there has been little to no consistency in the Commonwealth Caribbean, in interpreting discrimination rights in sex discrimination cases Prior to the 21st century, there existed only one apex appellate court with jurisdiction within the Caribbean – the Privy Council. As such the restrictive approach taken by the Privy Council served as binding precedent for all Caribbean jurisdictions. The Poongavanam341 and Peerbocus342 judgements proved to be two seminal precedents during the 1900s which adopted the trite and restrictive textualist and originalist approaches in order to give effect solely to the letter of the law i.e., only listed grounds of discrimination could be a

336 Ibid 598.

337 [2016] SC Bda 62 Civ.

338 [2015] SC Bda 82 Civ.

339 Ibid.

340 Orozco (n 324).

341 Poongavanam (n 289).

342 Peerbocus (n 290).

basis for a discriminatory claim. In examining the law during that same period, the author argues that Nielsen343 was inevitably guided by the restrictive precedents of the Privy Council in the interpretation of sex discrimination claims. The argument that Nielsen344 was guided by the sole apex appellate court of its era which amounted to a mere copy and pasting of precedent without consideration of the social realities of the Caribbean and Guyana at that time, is further buttressed by the author’s view that Guyana sought to right its wrongs via constitutional amendments,345 coming out of the 20th century. These constitutional amendments included, inter alia, the inclusion of sex as a ground for discrimination within the non-discrimination provision. Such a move by Guyana is evidence of the fact that its continued reliance on the Privy Council’s precedent was no longer sustainable, and it did not grant the underlying relief of discriminatory protection and other safeguards that were intended for its citizens. With the establishment of the CCJ, there has been a shift within the Commonwealth on the interpretation of non-discrimination rights – moving away from the constricted approaches of textualism and originalism, to that of purposivism. However, despite the advent of the CCJ, merely five Commonwealth Caribbean jurisdictions have acceded to the appellate jurisdiction of the CCJ to-date i.e., Guyana, Barbados, Belize, Dominica, and most recently St. Lucia as of May 2023. All other jurisdictions have retained the Privy Council. Consequently, the Caribbean has experienced a clash of approaches related to the interpretation of fundamental rights, including non-discrimination rights. The restrictive approaches to interpretation continue to thrive within the Caribbean, while at the same time growth of the expansive approach is constrained. This has affected the consistent application of one singular thread of interpretation within the Commonwealth Caribbean.

A. Effect of the clashing approaches to interpretation within the Commonwealth Caribbean

As a result of the differing approaches adopted by these two apex appellate courts, Commonwealth Caribbean countries that have held onto the Privy Council as their final Court of Appeal are bound by the doctrine of stare decisis to follow the precedent set by the Privy Council. However, CCJ rulings only serve as persuasive precedent to these jurisdictions and can be disregarded. Jurisdictions retaining the Privy Council continue to use technical barriers 343

and textual restrictions, to defend their stance of failing to find particular acts as being discriminatory on the basis of sex. Clear evidence of this is seen in Jeffers346 and Jones 347

Conversely, the Commonwealth Caribbean jurisdictions that have the CCJ as their final Court of Appeal are bound by stare decisis to follow the legal precedents laid down by the CCJ. Privy Council judgements are not binding upon these jurisdictions and can consequently be ignored. Accordingly, these Caribbean jurisdictions have consistently interpreted non-discrimination rights in sex discrimination cases expansively or have taken measures to provide for an expansive interpretation of sex discrimination. This is seen in the Guyana Constitution (Amendment) Act348 where the inclusion of sex as a ground for discrimination within the Constitution serves as an amplified mechanism for sex discrimination claims to be construed expansively. While Bermuda is yet to amend its Constitution to list sex as a prohibited ground for discrimination within the detailed section, the country’s enactment of the Human Rights Act adds to the safeguards for protection against discrimination by prohibiting discrimination on grounds inclusive of sex and sexual orientation in specific scenarios. This provides claimants with broad grounds upon which to base their sex discrimination claims; as opposed to the Constitution where ‘sex’ is absent in the detailed section. It is noteworthy that Barbados has taken measures akin to Bermuda to a certain extent in this respect through the adoption of the Employment (Prevention of Discrimination) Act.349 The Act zeros in on the prohibition of discrimination in various employment-related circumstances and notes that grounds for discrimination under the Act includes sex and sexual orientation.350 However, this limitation of the scope of the Act to employment-related instances does not allow claimants to use sex or sexual orientation as a basis to ground a discriminatory claim in other realms such as in other civil disputes, commercial disputes, consumer disputes, criminal disputes, student disputes, administrative disputes by public bodies and officials, etc. In those instances (once legislation does not exist to supplement the non-discrimination rights endowed within the Constitution), section 23(2) of the Constitution, can be relied upon However, this would give both the claimant and defendant an uphill task of proving or disproving that an alleged act was discriminatory on the basis of sex, as ‘sex’ is not included in the listed grounds. Notably, one can rely on the opening section of the bill of rights351, where sex is included, to ground a claim

346 Jeffers (n 297).

347 Jones (n 304).

348 Guyana Constitution (Amendment) Act (n 345).

349 Barbados Employment (Prevention of Discrimination) Act 2020.

350 S 3(2)(g)(h) Ibid.

351 S 11 of The Constitution of Barbados.

352

of sex discrimination As was pronounced in Nervais, rights within the opening section are also justiciable.

V. Restrictive vs Expansive: which approach gives effect to the plentitude of fundamental rights within the constitution?

It cannot be disputed that the approaches of textualism and originalism are relevant and have their place within the judicial and constitutional interpretation of fundamental rights and freedoms. Generally, courts have continuously affirmed that a person cannot have absolute enjoyment of a right and so limitations may be expressly or impliedly read into rights. This was declared in cases such as Panday v Gordon353 in which the court asserted that there are limitations on the right to freedom of expression as it must be balanced with the right to reputation. As such textualism and originalism work in such instances to ensure that rights are bestowed based on its plain and original meaning and that the limitations put in place within the detailed sections of fundamental rights are given effect and not circumvented.

Regarding the right of non-discrimination, to the extent that textualism and originalism function to afford citizens protection on the grounds contemplated by the constitution, these approaches further the intention of the drafters by ensuring that different and less favourable treatment are struck down. However, where different and less favourable treatment results on grounds that were not expressly contemplated for by the detailed section of the constitution (e.g., sex and sexual orientation), a textualist and originalist approach would be of no assistance in furthering the purpose of the provision. The adoption of a restrictive approach in the above instance would prove to be detrimental as it would fail to give effect to the full measure of the right against discrimination. Afterall, it is impossible for constitutions to contemplate each and every instance in which different and less favourable treatment could occur on the basis of one’s personal characteristics which are immutable or changeable only at an unacceptable cost to one’s personal identity.354 It stands to reason that the restrictive approach of interpreting nondiscrimination rights would not give effect to the plenitude of that fundamental right. This

352 Nervais (n 294). “…the Constitution itself envisaged that s 24 of the Constitution was not the only method of bringing proceedings. It should be sufficient to indicate that this has already been decided in A-G v Joseph and Boyce where the argument that s 11(c) protection of the law, was a non-justiciable right because it was excluded from the redress clause (s 24) was rejected on the ground that, independent of s 24, the Court had an implied power or an inherent jurisdiction to grant relief.”

353 [2005] UKPC 36.

354 Corbiere (n 317).

approach of interpretation is incapable of granting a remedy, where a right against discrimination has been proven outside the listed grounds.

The purposive approach of interpretation is best suited to give effect to the full measure of fundamental rights, particularly the right against discrimination. This is because it strikes a balance between the intent of the drafters of the constitution, and the intent of the system,355 while remaining bound to the principles and purposes that underly the Constitution.356 However, if the courts in utilizing purposivism go beyond the purpose and intention of the drafters, then they must be stopped and reeled in, as this would amount to clear evidence of law making; not constitutional interpretation.

Within the Commonwealth Caribbean it is important that courts give effect to the full measure of fundamental rights, including non-discrimination rights, because Caribbean societies are continuously evolving, and so West Indian jurisprudence ought to be developed in order to keep up with the changing times. Purposivism allows the bestowal of fundamental rights upon citizens because it forces constitutions to be instruments of conscious change Ultimately, purposivism works to ensure that constitutions evolve with societies to reflect the spirit and will of the people because it is from this, that the constitution derives its operative meaning and force.357

VI. Conclusion

In conclusion, the differing approaches utilized by the Privy Council and the CCJ has led to the result of Caribbean courts inconsistently interpreting non-discrimination rights and equality rights on the grounds of sex. This is buttressed by the fact that Caribbean courts are bound by stare decisis to follow the precedent set by their apex appellate court. Textualism and originalism function to prescribe Courts to interpret the Constitution using the plain and original words clearly stated, and to consider the objective meaning of the non-discrimination provision This approach while favoured by the Privy Council, has been rejected by the CCJ. The CCJ has advocated the use of purposivism to give effect to the full measure of rights. Additionally, the doctrine of analogous grounds, and international law can work in tandem with purposivism to allow comparable grounds of sex and sexual orientation to be read into those listings where sex is excluded. This is the precedent followed by the courts of Caribbean

355 Datar, (n 286) 143.

356 Oliphant, (n 312).

357 Rose-Marie Belle Antoine, Commonwealth Caribbean Law and Legal Systems (2nd edn, RoutledgeCavendish 2008) 100.

jurisdictions that have acceded to the CCJ as their final appellate court. As noted, this clashes with the Privy Council’s approach that where sex or sexual orientation is not listed as a basis for discrimination in the detailed section of constitutions, textualism and originalism precludes the courts from considering other analogous grounds that claimants may use as a basis for discriminatory claims. This is the precedent followed by Caribbean jurisdictions which have retained the London-based Privy Council as their final Court of Appeal. Ultimately, the expansive approach of interpretation is best suited to give effect to the plenitude of fundamental rights, including the right against discrimination, as it encourages constitutions to be instruments of conscious change reflective of the societies and citizens that it governs.

A Comparative Study on the Practice of Family Law in the United States and the Commonwealth Caribbean

Daniella Williams

Abstract

Black's Law Dictionary358 defines a family as a collective body of individuals who reside in one house and under one head or administration. According to one scholar, family is often based on marriage and blood links.359 Historically, there has been difficulty in defining ‘family’ for the purposes of the practice of Family Law due to differences in its perception across societies and cultures. As a result, the global evolution of Family Law has been astounding. However, the issue still stands; is the pace of change necessary for the law to reflect and serve the requirements of modern societies being met? More specifically than the general application of Family Law- the legal recognition and consequences of the institution of marriage and the application of divorce law in the United States and the Commonwealth Caribbean Region are compared in this essay. Although the fundamental changes in the family are universal, societies develop at various rates and require different ways of dealing with commonly shared circumstances surrounding marriage and its breakdown due to cultural considerations. This essay examines how the systems now in place in the US and Caribbean might be enhanced by borrowing and taking cues from one another.

I. Introduction

There are many similarities between the practice of Family Law in the United States and the Commonwealth Caribbean. Both regions have a common law tradition and similar legal systems heavily reliant on court precedents in formal adjudication.360 However, there are some critical differences between the two regions. In the United States, family law is primarily governed by state law. Each state has its own unique set of family laws. This can make it difficult to compare the laws of different States. In the Commonwealth Caribbean region, family law is governed by a combination of English common law and local customary law. This structure makes it easier to compare the laws of different countries in the region. Another key difference between the two regions is how divorce is handled. State courts typically manage divorce cases in the United States. The Matrimonial Division of the High Court, a specialist court, handles divorce cases in the Commonwealth Caribbean area. Only one court has authority over all divorce-related issues.361

More than any other field of the law, Family Law is influenced or informed by current social and cultural values. The norms and values that support, define, and shape familial relationships in Commonwealth Caribbean nations are progressively being incorporated into the laws that control those relationships.362 According to Herring, Family Law is “...the law governing the relationships between children and parents, and between adults in close emotional relationships.”363 The latter subgroup outlined in this definition will be addressed. The research focuses on family law practice in the United States and the Commonwealth Caribbean region. It is comparative and looks at the similarities and differences in family law practice in these two regions.

This paper posits that the United States and the Commonwealth Caribbean may benefit from adopting certain principles one from the other in applying Family law. An investigation of the pillars on which the practice of Family Law as it relates to the recognition of the institution of

360 Toni M. Fine, ‘American Legal Systems: A Resource and Reference Guide’ LexisNexis (1998)

<https://www.lexisnexis.com/en-us/lawschool/pre-law/intro-to-american-legalsystem.page#:~:text=The%

20American%20system%20is%20a,of%20the%20matter%20before%20it.> accessed 27 October 2022.

361 ‘Family Court Overview’ (Trinidad and Tobago Law Courts, August 2020)

<https://www.ttlawcourts.org/index.php/2020-01-28-18-30-04/2020-01-28-18-53-05/family-courtoverview > accessed 15 November 2022.

362 K Nunez-Tesheira, Commonwealth Caribbean Family Law: Husband, Wife and Cohabitant (Routledge 2016) 2.

363 Herring (n 361) 10.

Marriage and its dissolution stands in New York and New Jersey in the United States as opposed to Trinidad and Tobago, Jamaica, and Barbados in the Commonwealth Caribbean supports this position.

In demonstrating this thesis using the relevant statute, case law, and academic sources and opinions, this essay explores marriage, its definition, the requisite formalities for validation, and the recognition of marriages outside of Christian and civil bounds, the legal age to marry and strides taken to outlaw child marriages in the US and Caribbean. The merits and demerits of prenuptial and postnuptial agreements will be discussed, as well as domestic partnerships and the legal consequences surrounding unions other than marriage. In the event of a divorce, the court processes for the maintenance award and the allocation and division of marital property will be examined. The impact of cultural and social norms on family law practice will be discussed, along with recommendations for the future of family law in each region.

II. Marriage

Marriage is, from a legal standpoint, a private contract between two people that establishes reciprocal rights and duties that last for as long as the union does. The local matrimonial statute and the common law of the relevant jurisdiction control these rights and obligations. In Radmacher v Granatino,364 Baroness Hale said that, of course, a marriage is a contract in that both parties must consent to enter into it and once entered, are bound by its legal ramifications. But it has prestige as well. This implies two ideas. The parties are not free to pick and choose the legal consequences of their marriage contact - they agree to the terms that the law of the land specifies. Second, their marriage has legal repercussions for the state and citizens. The solemnisation of marriages comprises going over the specifics of who is permitted to marry and be married, when and where marriages are allowed to occur, and what formalities are required to ensure a union is valid.

Hyde v Hyde and Woodmansee365 defined marriage as “the voluntary union for life of one man and one woman to the exclusion of all others.” This is the definition accepted throughout the Caribbean. However, petitioners in the US case of Obergefell v. Hodges366 sought a declaration of freedom to contract to marriage between people of the same sex and the recognition of their unions as legal under the same rules and regulations as marriages between people of opposite

sexes. It was determined that since same-sex couples have the freedom to marry in every state, there is no good reason for a state to reject a valid same-sex union that was performed. In the Caribbean, laws on this topic are old-fashioned, as the legal basis is heavily influenced by Victorian era Christian doctrine. To keep up with evolving societal trends, Caribbean governments must consider the legalization of same-sex unions. This decision would likely be motivated by several factors, including the principles of human rights and equality, the promotion of social progress and inclusivity, the economic and tourism benefits it would bring, the need to retain talent and prevent brain drain, and the international obligations and pressures to uphold LGBTQ rights. The law must adapt to the changing attitudes of Caribbean people who are beginning to embrace same-sex marriages. By permitting same-sex unions, governments can demonstrate their acceptance of diverse partnerships and their willingness to adapt to changing circumstances, thereby fostering a more inclusive and forward-thinking society in the Caribbean.

In New York, like most States, marriage is a primarily secular undertaking. However, contrary to other States like Nevada, for example, where it is easy to get married, and there are few to no requirements for preparation, there are formalities to be followed. In addition to meeting certain age, consent, and ability requirements to be able to wed legally, prospective spouses should be aware of the statutory provisions surrounding marriage.367 One of the following people must officiate at a marriage ceremony: the current governor, the village or town's mayor, a marriage officiant chosen by the village or town council or the common municipal council, a judge or justice from one of the courts listed in the statute, a magistrate from a town, or county, a clergyperson or pastor who has received official permission from the presiding church body to officiate marriages. There is no specific form or ceremony required. The couples must, however, express their desire to become lawful spouses in front of a magistrate or clergyperson who has been permitted to execute the proceedings and at least one other witness. A Marriage license must have been obtained. Before making the union official through the ceremony, all states require the parties to a marriage to get a marriage license from the local clerk's office. You must seek a permit from the clergy member or magistrate who will officiate within 60 days if you wish to get married. A marriage license is simply the legal agreement between two people that involves the blending of finances and the creation of a family. However, if prenuptial agreements are included, the precise terms of property allocation and other eventualities should the marriage end in divorce may differ. When requesting a marriage license, specifics about

prior unions must also be included. Without a court of record order, a marriage cannot be performed fewer than 24 hours after the marriage license has been issued. One of the following documents must be presented by each party to the marriage as proof of age (Birth certificate, Baptismal record, Naturalization record, or Census record) and identity (Driver's license, Passport, Employment picture ID, or Immigration record). In New Jersey, much like in New York, Marriage is secular. This speaks to the culture and societal norms in the US, where religion is not heavily emphasised. Most marriages are civil, with few incorporating a religious ceremony. The specific prerequisites for getting married and having a valid marriage in New Jersey are outlined in the statute.368 Despite similar laws in other states, New Jersey has special criteria for marriage licenses. There are no residency requirements and there is no requirement for blood testing or physical exams before a marriage permit can be issued. A licensing officer or another individual responsible for awarding the license does, however, offer details on hereditary illnesses (such as Cooley's anaemia and Sickle Cell anaemia) and the locations of testing centres. Before getting married, you must wait 72 hours after receiving the license from the Local Registrar. The parties must provide identification proof a driver's license, passport, State, or Federal photo ID as well as proof of residency and their social security card or number when applying for a marriage license. A witness who is at least 18 years old is also necessary. It is valid up to thirty days after the issue date. The Marriage Licence is valid throughout the State as long as one of the parties to the marriage is a resident. If neither party resides in the state, it will only be valid in the municipality it was granted. Like in New York, parties must submit to the court with their divorce decree if there was a previous marriage. Common law marriage is not permitted in New Jersey, but all states, including New Jersey, have legalised same-sex unions due to the U.S. Supreme Court decision. This right was codified in New Jersey in 2021. A marriage by proxy occurs when a person with a power of attorney marries on behalf of an absent spouse. The state of New Jersey permits members of the National Guard or the Armed Forces who are deployed abroad and participating in a conflict or war (and unable to attend) to get married by proxy. Judges of a Federal District Court, US magistrates, Municipal Court Judges, Superior Court Judges, Tax Court Judges, Retired Superior Court Judges, Judges of the Superior or Tax Court who have resigned in good standing, any Mayor/Deputy Mayor or Chairman of any Township

Committee, Village President of New Jersey, County Clerks, and every minister of every faith are permitted to perform marriage ceremonies.

In Trinidad and Tobago, Barbados and Jamaica, much like in most Caribbean countries, there are formalities to be followed when getting married and in ensuring the solemnisation of a marriage as well. The Preliminaries for marriage are set out in Part 4 of the Barbados Marriage Act. The Act specifies the steps that must be taken before a Christian or Civil marriage can be solemnised. Marriage is perceived as being less secular in the Caribbean than it is in the United States due to cultural and lifestyle indicators as well as the fact that, generally, Caribbean people are comparatively more devout. Many Caribbean countries have deeply ingrained cultural customs and ideals that influence how they see marriage. With Christianity being the predominant religion, the Caribbean area is renowned for its tremendous religious impact. Contrarily, in the United States, there is a tradition of secularism and the separation of church and state which has contributed to the conception of marriage as a more secular institution. In the Caribbean, marriages are often considered a union between two families rather than just two individuals. As such, there is typically more emphasis on the role of family members in the wedding ceremony and celebrations. Caribbean weddings are often much more lavish affairs than their American counterparts. Marriage in the Caribbean is often seen as a way to strengthen social ties and forge new relationships rather than simply as a legal contract.

In the case of Collett v Collett,369 the wife requested the annulment of the marriage because Sections 2, 3, 4, 7, and 9 of the Foreign Marriage Act of 1892 had not been followed at the marriage ceremony. The case establishes that only where formalities are mandatory if these provisions are ignored, is the marriage void. Written notice of the intention to marry must be given to the marriage officer in the prescribed form that includes the following information about the couple: (a) their proper names, surnames, ages, and places of residence; (b) whether either of them and if only one, which of them, has previously been married; and (c) any other information that may be relevant to the marriage.370 It is noteworthy that Notice is not a requirement in Muslim or Hindu marriages, so parties would not need to give the same if they were of either of those religions. Marriages must be openly and audibly announced during religious service on three successive Sundays within a time frame of no longer than three months for it to be considered to be on the verge of solemnisation under the authority of published banns set out in the Act. They must regularly attend religious worship at a specific

church or at that church.371Under the Hindu and Muslim Marriage Acts in Trinidad and Tobago, Guyana, and Jamaica, there is no necessity to post banns. Marriage licenses are dealt with in Section 20 (1) of the Barbados Marriage Act. It states that the Minister or another individual designated by the Minister in writing as authorised to issue marriage licenses must issue marriage licenses. Part (2) says that an application for a marriage license must be made in writing to the Minister using the prescribed form and include the following information: (a) the names and last names of the parties intending to wed, their ages, their professions, and whether they are each single, widowed, or divorced; (c) the location and the marriage officer or magistrate, as applicable, who will officiate the wedding. The application must also include a statement from the parties planning the wedding that no legal obstacles are standing in the way of their union. Mark must be warned that Part (4) specifies that both parties must sign an application under paragraph (2), and it must be supported by any supporting documentation the Minister deems necessary. According to Section 22, a marriage license is null if three months have passed after its issuance without the marriage to which it refers to having been solemnised. The parties wishing to wed may not be married by license until a new marriage license is obtained in compliance with Section 20. Generally, a religious ceremony may be added to a civil marriage by submitting the couple's marriage certificate to a minister of religion, providing that they were wed in front of a civil marriage officer or the appropriate public official. The religious minister can then choose whether to lead the religious event. The legislation of Trinidad and Tobago does not include this clause.

The acceptance of weddings outside civil and religious boundaries is strongly emphasised across the Caribbean, particularly in Trinidad & Tobago. The Muslim Marriage and Divorce Act of 1961, Hindu Marriage Act of 1945, Orisa Marriage Act of 1999, and Miscellaneous Provisions (Marriage Act) of 2017 are examples of laws that reflect this. These Acts recognise relationships other than legally recognised Christian or civil marriages and create allowances for respecting cultural diversity in society. The Caribbean is a melting pot of cultures. While the United States may not be as diversified, more can be done to incorporate the acceptance of different cultures in society. A recent study showed that seventy Trinidad, the world’s population, will live in cities by 2050.372 The study also revealed that half the world’s population would be of non-Western origin at that point. These two facts highlight the need for

371 Barbados Marriage Act 1979, § 16(a).

372 ‘Half of global population will live in cities by end of this year, predicts UN’ ( United Nations, 28 February 2008) <https://news.un.org/en/story/2008/02/250402> accessed 10 November 2022.

increased understanding and acceptance of other cultures. Due to constitutional principles, cultural diversity, and the promotion of human rights and equality, it is crucial for the United States to enter the twenty-first century with respect for various religions and ways of life. However, it is important to note that this respect does not signify a rejection of critical thinking or an endorsement of harmful behaviour. Instead, it recognizes that people have the right to hold different beliefs and practices if they are within the bounds of protecting the rights and well-being of others.

III. Legal Age to Marry

Only actions taken by people who can create the necessary intent to carry out the prescribed conduct are permitted by the law. There are two acknowledged definitions of ‘capacity’. First, there is maturity, or the objective measure of the capacity to create a legal intent, and second is mental capacity, or the ability to develop the intent to conduct an act 373 A child's capacity to formulate the right intent is said to mature as they reach a specific age. This age indicates that a person who lacks the mental ability or maturity to appreciate the repercussions of their acts entirely cannot be held legally responsible.

The ‘age of majority’, typically 18 years old,374 is the age at which every individual is regarded as an adult. Generally, this is the age at which persons are free to marry. In the leading case of Pugh v Pugh, 375 because the marriage was illegal under the law in effect in the husband's country of residence, England, due to the wife's age, the court had no trouble pronouncing it null and void. According to a rule set forth by an Act of 1929, no one may legally engage in a marriage with a girl who was under the age of sixteen if they were domiciled in England. One must consider that;

“Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during the marriage, and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses.”376

In the United States, some states allow adolescents to become ‘emancipated’ if they support themselves while living separately from their parents. This emancipation indicates that the

juvenile will be considered an adult for legal reasons. While laws may occasionally specify the minimum age for majority or emancipation (NY Social Services Law, Section 83 (a)),377 common law is generally used to make this determination, as well as any other resolution surrounding matters of emancipation. For instance, in the Delaware case of Christenson v. Tanner21 , according to the family court, the daughter's marriage had allowed her to become independent of her parents' care, custody, and control. In Delaware, the common law applied unless otherwise specified by statute. Delaware accepted the common law rule that the marriage of a minor had the effect of emancipating the minor since the legislature had not passed any laws addressing the issue. The family court was persuaded by this reality, as well as legislation and case law from other states, such as New York and New Jersey, that the marriage of a minor released the child from parental care, custody, and authority.

A person as young as 14 or 15 can get married in the US in states with no minimum age limit. This is possible if the minors receive their parents' permission. New York is not one of those states though, where anyone under the age of 14 is not allowed to marry in New York. The legal age for marriage (without consent) has been raised from 14 to 18. It is illegal to marry anyone where one of the participants is under the age of 18. But with the approval of the New York Supreme Court or Family Court, a 17-year-old can get married.

As maturity differs from person to person, governments must establish a boundary someplace, even if it is somewhat arbitrary, to achieve legal competence. In contrast to some jurisdictions with a specific age at which a juvenile may become emancipated, New Jersey law does not have a set age; instead, it is determined on a case-by-case basis. The legislation also addresses issues including a person's capacity to contract, their capacity to bring a lawsuit, and the age at which they can provide their permission for medical care

378

There are age restrictions on marriage in several places that permit children to wed under specific conditions. However, as of 2018 New Jersey introduced a minimum age of 18 with no exceptions. New Jersey became one of the first states to outlaw child marriage. In several places in the US, child marriages are still permitted. This remains law despite the fact that several studies have revealed that child marriages are linked to several unfavourable consequences.

377 A grant of public assistance or care may be made to an emancipated minor in his own right if he is otherwise eligible, for this purpose, emancipated minor means a person over 16 years of age who has completed his compulsory education, who is living separate and apart from his family and is not in receipt of or in need of foster care. 21 980 A.2d 1059.

378 NJ Stat. § 37:1-6

These include issues with one's bodily and mental health, poverty, and illiteracy. Child marriages are currently prohibited in twenty-seven US States as of 2019.

The Caribbean has seen a significant decline in child marriages over the past few years. This is due to several factors, including increased awareness of the adverse effects of child marriage, changes in social norms, and improved access to education and economic opportunities for girls. Abolishing child marriages in the Caribbean has positively impacted the lives of girls and young women in the region. It has helped to reduce the prevalence of early pregnancy and maternal mortality and has improved girls’ access to education and economic opportunities.

In the Caribbean, Trinidad and Tobago was the trailblazer, much like New Jersey in the US. The practice of child marriage was abolished with the adoption of the Miscellaneous Provisions (Marriage) Act 2017; only one other Caribbean Country, Antigua and Barbuda, has since done the same. Since Trinidad and Tobago has raised the legal age of marriage to eighteen, there is no longer a need for consent, authorisation, or dispensing with consent. A person cannot get married if they are under the age of eighteen. Except for Trinidad and Tobago and Antigua and Barbuda, the various other Commonwealth Caribbean nations have varying laws governing who can agree to an underage person getting married.

In other Caribbean jurisdictions party to the United Nations Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage, 1962379, inclusive of Barbados and Jamaica, anyone who has attained the minimum age required can marry, and no consent is needed. Parties may get married without the approval of anyone else if they are at least eighteen years old or younger but are a widow or a widower. An individual under the age of majority may receive consent where they must get married. In Anguilla, Barbados, Dominica, Grenada, Guyana, Jamaica, Montserrat, St. Kitts and Nevis, and St. Lucia, the specified age is sixteen years.

Although the United States is a signatory to The United Nations Convention on the Rights of the Child, it has not ratified The UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979380 but many Caribbean Commonwealth

379 Article 2

“States Parties to the present Convention shall take legislative action to specify a minimum age for marriage. No marriage shall be legally entered into by any person under this age, except where a competent authority has granted a dispensation as to age, for serious reasons, in the interest of the intending spouses.”

380 Article 16(2): The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.

Countries have. An increase in the pace of change in the laws surrounding child marriages and raising the legal age of consent to eighteen years old is necessary. According to research conducted by the United Nations, by 2030, more than 150 million girls will be child brides worldwide if action is not taken.381 The two regions seem to be on par here, as they are both only in the beginning stages of the mass abolition of the marriage of minors within their societies. Much like New Jersey and Trinidad and Tobago, the other states in the US and countries in the Caribbean should follow suit. Until then, governments should continue to work with civil society organisations to create awareness about the harmful effects of child marriages and the importance of delaying marriage until adulthood.

IV. Prenuptial and Postnuptial Agreements

Marriage is a legal contract. Once married, a person's property is commingled, and additional rights and obligations arise. However, prenuptial agreements382 can be used to approach marriage practically. Postnuptial agreements function in substantially the same way. These legally binding agreements, recognised and upheld by New York courts, place certain restrictions on the marriage contract, and often impose financial safeguards such as alimony payment caps or the designation of particular assets as ‘separate’ and so exempt from distribution in the event of divorce28. In the United States, there is the Uniform Premarital Agreement Act 1983; a multi-state statute passed to specify the circumstances under which prenuptial agreements should be honoured. The legislation lets parties pick which State's marriage laws will apply to their union. Although New York has not ratified this Act, prenuptial agreements are upheld by New York Courts if they are fair and entered into voluntarily, where there is full disclosure of financial information, where both parties have independent counsel and the document has been duly acknowledged (witnessed by a third party).

Prenuptial and Postnuptial agreements are governed by state-specific regulations, which outline the content that may be included and the formal criteria for one to be enforceable. Prenuptial agreements are known as premarital arrangements (and postnuptial agreements are known as

381 ‘Child Marriages’ (UNICEF 2019) <https://www.unicef.org/protection/childmarriage#:~:text=Globally%2C%20the%20prevalence%20of%20 child,likely%20to%20remain%20in%20school> accessed on 5 October 2022.

382 Uniform Premarital Agreement Act § 52B-2.

(1) "Premarital agreement" means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. (2) "Property" means an interest, present or future, legal or equitable, vested, or contingent, in real or personal property, including income and earnings. 28 New York Consolidated Laws GOB § 3-303

post marital agreements) in New Jersey and are permissible under a civil union. According to State law, a prenuptial agreement must be in writing and signed by both parties, and it only takes effect after the couple is married. Prenuptial agreements in New Jersey may contain a range of clauses, but they cannot include clauses that "adversely affect the right of a child to support." Only a formal document signed by the couple can revoke or modify a prenuptial agreement.383

A contract established between individuals to get married continues to be valid after the wedding. A prenuptial agreement might cover each spouse's property-related rights and duties and the authority to govern and administer property, designating separate property and ensuring that certain assets are not commingled after marriage. It may consolidate marital property and determine how this property would be divided in the case of a divorce, death, or any other event. Often, after marriage, certain assets that were previously regarded as being under distinct ownership come to be treated as jointly held property. The agreement may also outline the ownership rights to and distribution of a life insurance policy's death pay-out. Guidelines for support in the event of divorce or determining which spouse is financially responsible for the other during the marriage and which party would thus be responsible for paying spousal maintenance upon the dissolution of the marriage is also considered.

In the Caribbean, prenuptial and postnuptial agreements are generally not a part of the practice of family law. They are generally not legally binding and are only recognized in Jamaica (and in the Bahamas to a lesser degree). Although the Property Rights of Spouses Act 2004 does not use the phrase "Prenuptial Agreement" (which is an American term), it does have provisions in Section 10 that allow spouses to enter into a contract outlining how their assets should be divided in the case of a divorce, death, or separation. Much like in the US, prenuptial agreements are permitted in Jamaica only if they are in writing, legally required to be witnessed, and both parties have separate legal representation unless the court determines that doing so would be unfair.384

The inclusion of a prenuptial agreement in a couple's affairs has benefits and drawbacks. Although establishing a prenuptial agreement might be emotionally taxing, it can safeguard your assets in the case of a divorce. This is particularly crucial if you are starting a second marriage or have substantial assets. The financial goals of each spouse might be made clear in

a prenuptial agreement. Future arguments and conflicts may be avoided as a result. Nevertheless, drafting a prenuptial agreement might take a long time. If you are getting married soon, this can be an issue. Hiring an attorney to draft a prenuptial agreement can also be expensive. Nevertheless, the pros outweigh the cons. A prenuptial agreement can give peace of mind knowing that assets are protected. This can be especially important in what is known as big money cases. Generally, the enforcement of a prenuptial agreement would make the process of litigation easier on the parties in the event of divorce.

Discussions surrounding Prenuptial agreements (and, by extension, postnuptial agreements) are becoming increasingly common. These documents are a way for couples to protect their assets in the event of a divorce. The Caribbean is a region with a high divorce rate, and prenuptial agreements could provide some stability for couples.

V. Domestic Partnerships

Domestic partnerships are two people's legally recognized unions that offer some of the same rights as marriage, such as time off to care for a partner, but also taking specific circumstances into account. Before Obergefell v. Hodges, for instance, same-sex couples in states that forbade the union of same-sex partners occasionally registered as domestic partners in order to benefit from the some of the legal advantages of marriage. Several states still offer alternatives to marriage even if same-sex unions are no longer prohibited by the law and are thus not limited to solely domestic partnerships. Domestic partnerships, however, may be desired by persons for a variety of reasons in jurisdictions where they are still an option, such as non-romantic partners who rely on one another's business and financial resources. State laws governing domestic partnerships vary, and not all states approve of them. Nevertheless, certain municipalities and counties may do so even if their state does not. In New York, candidates for domestic partnerships must meet criteria that are very similar to those for marriage. In New Jersey, a civil union, domestic partnership, or marriage can constitute a relationship that is legally binding. Each of these agreements does, however, have some limitations to qualification.

A person who has entered into a domestic partnership under U.S., state, local, or foreign law, or who is legally designated as the beneficiary or covered individual under another person's employment benefits or health insurance is referred to as that other person's "domestic partner" in New York State. Moreover, they have to be listed as a domestic partner.385 To be eligible to

create a domestic partnership, each partner must be at least 18 years old and a resident of the county or city where the application is being made. The parties must not be married or related by blood. The applicants must be engaged in an intimate, committed relationship, have been companions for six months, and at no time during that time period may either of them have participated in another domestic partnership. The application process is broken down into three phases. To verify their eligibility to form a domestic partnership, the parties must swear to their eligibility via affidavit. Each city or county clerk has a different format and procedure. Like marriage license applications, the applicants must appear in person at the clerk's office, and both partners must be present to file an application. Third, both partners must sign the agreement. The clerk's office will then notarize the application. The parties are then granted a number of privileges, including access to health benefits provided by specific cities such as Albany and Rochester, eligibility for benefits similar to those offered to married couples alone, such as health and life insurance, death benefits, and other similar benefits, family leave for child care and mourning, visitation in hospitals, jails, and other facilities run by New York State, added as a family member to a rental agreement, access to health benefits offered by specific cities.

When the Domestic Partnership Act (DPA) first became effective in New Jersey in July 2004, it permitted same-sex couples older than 18 and opposite-sex couples older than 62 to register as domestic partners. The DPA was modified to only be accessible to couples (whether samesex or opposite-sex) who are older than 62 years old after the New Jersey Civil Union Act was passed in February 2007. Couples under 62 who formed domestic partnerships before February 2007 and those who did so outside New Jersey are also covered by the DPA. Applicants must submit affidavits of Domestic Partnership and the necessary fees to a local registrar of vital statistics. A couple may register as domestic partners in New Jersey if they are not related by blood or by marriage, up to and including fourth-degree consanguinity, and they are both beyond the age of 62. Further, if they dwell together in New Jersey (or another state), one applicant must be a participant in a New Jersey retirement system). Both parties must be equally responsible for each other's welfare and basic living costs; there must be a committed relationship of mutual care. Neither partner can have legally terminated a domestic partnership within the previous 180 days. Neither partner can be a part of a marriage, civil union, or marriage or domestic partnership with anyone else.

A civil union is comparable to marriage in New Jersey law. Gay and lesbian couples regrettably do not receive the same federal advantages and protections as heterosexual spouses since the

federal government does not recognise civil unions. And when they visit, reside, or work in other states, they might face legal issues. In New Jersey, it is thought that to give same-sex couples all the rights and privileges that married heterosexual couples have, the Domestic Partnership Act's protections should be expanded to include civil unions between same-sex partners. The New Jersey Supreme Court's recent landmark ruling in Lewis v. Harris386 , wherein the Court found that the State Constitution's equal protection guarantee was broken by statutorily denying committed same-sex couples the same rights and benefits as their heterosexual counterparts, set forth the constitutional mandate that the Legislature must abide. This is the intention of the Legislature. According to the Court, there are two ways the State might satisfy this fundamental obligation. It can either change the marriage legislation to include same-sex couples or adopt a parallel statutory framework with a different name under which same-sex couples would not only benefit from and shoulder the duties of civil marriage but also enjoy its rights and privileges. The Legislature decided to create civil unions by expanding the definition of marriage under the existing law to include same-sex couples. By granting same-sex couples the same rights and benefits as heterosexual couples who decide to be married, the Legislature is continuing its longstanding tradition of ensuring equality under the law for all New Jersey residents.

Although New Jersey is very progressive, as seen concerning its outlawing of child marriages and the recognition of same-sex marriages, like New York, New Jersey does not recognise common law marriages. A common-law marriage occurs when a pair cohabitates and portrays themselves as husband and wife. They never held an official ceremony recognised by their state of residence or the Federal Government, nor did they get any official legal documents. In New Jersey, this prohibition of Common Law Marriages was, however, not the case before 1939 when this type of arrangement was legal. Has New Jersey taken a step back? Not everyone wants to get married in today's society for practical and personal reasons. Because of this, some people decide against getting married and instead cohabitate. Some couples may prefer cohabitation to marriage since it gives several partners a different method to bind their relationships without being wed.

Cohabitation is a "mutually supportive, close personal partnership in which a couple has assumed obligations and rights often associated with marriage or a civil union" cohabitation legislation in New Jersey387. It is impossible to "officialise" cohabitation. You must either be

married to each other or get into a domestic partnership if you want to enjoy certain legal benefits with your spouse, such as the tax reductions or health care provisions frequently connected with marriage. However, younger opposite-sex couples normally must legitimise their union through marriage if they desire legal advantages for their relationship because opposite-sex people under the age of 62 cannot have a domestic partnership with one another. While common law marriages are sometimes thought to be related to how long a couple has been together, this is not the case. Seven years together often comes to mind when discussing a common-law marriage in the United States. However, most states that recognise common law marriage still see a year of cohabitation and intimacy as sufficient time. The timing of it is entirely up to the couple's choosing, just as in a real marriage.

Common law marriages are no longer recognised in New Jersey. Only common law unions formed before 1939, when New Jersey modified its rules, would still be recognised.

In the Caribbean, there are two types of non-marital unions recognised by law, one of which is the cohabitational relationship. Within the Caribbean context, some couples may live together without marriage, while others may be in committed relationships but choose not to live together. This arrangement is widely practised in the region as it speaks to the Caribbean culture of devoting one’s life to another without the official processes prescribed by law. Interestingly though this is catered for in the Caribbean context, it is a natural part of the human condition. There is no reason why individuals should be denied the opportunity to enter common law marriages throughout the United States legally. There are a few reasons why common-law marriages should be legal in New York and New Jersey. They provide stability and security for couples who have chosen to live together without getting married. This can be especially important for couples who have been together for a long time and built a life together. They can provide couples with many of the same legal rights and responsibilities as traditional marriages, such as the right to file joint tax returns and the right to inherit from each other. Finally, common law marriages can provide couples with a way to formalise their relationship in a way that is recognised by the state, like it is in the Caribbean.

In Barbados, a union other than marriage is defined as a connection created when a man and a woman who are not married to one another have lived together continuously for at least five years.388 In Jamaica, Section 3 of the Maintenance Act 2005 and section 2 of the Property

Rights of Spouses Act 2004 have a similar definition.389 Common law marriage has become established in the culture, and even Parliament has acknowledged its significance. There is little to no substantive difference between it and legal marriage in this jurisdiction. Most often, there is even some kind of ceremony. Such marriages are not socially stigmatised in modern culture, and many honourable and influential individuals are offspring of such a tradition390. These couplings are regarded as normal and, for the most part, faithfully follow the definition of marriage set down in Hyde v. Hyde. There is a minimum period of five years necessary for the validation of a cohabitation relationship. This is coupled with the physical aspect of living together and/or the requirement of Consortium Vitae (the implication of a partnership for life). These requirements, all of which need not be proven, are the duration of the relationship as prescribed by the legislation and whether a sexual relationship exists between the parties. The degree of financial dependence or independence and any arrangement for financial support between the parties is also considered. Further, the degree of mutual commitment to a shared life, the care and support of children, if any and the performance of household duties are all important. As well as the reputation and public aspects of the relationship.

On the flip side to the aforementioned, the Caribbean should consider domestic partnerships and civil unions to provide legal recognition and protections for same-sex couples. Currently, there is no legal recognition of same-sex relationships in the Caribbean, which can lead to several problems for couples, including issues with property rights, inheritance, and immigration. Domestic partnerships and civil unions would provide same-sex couples with many of the same rights and benefits that are available to opposite-sex couples, which would help to ensure equality and fairness for all couples in the region. In the meantime, as the region slowly reconsiders its stance on same-sex marriage, recognising these other types of unions may be a significant step taken in the interim to serve the needs of the current society.

VI. Maintenance and Property

When a married couple files for divorce in the United States, the court may, either based on an agreement between the parties or a ruling by the court itself, grant "alimony" or spousal support

389 “spouse” includes –

(a) a single woman who, for period of not less than five years, has cohabited with a single man as if she were in law his wife; and

(b) a single man who, for a period of not less than five years, has cohabited with a single woman as if he were in law her husband.

to one of the former spouses391. Maintenance is not usually guaranteed; rather, it is decided based on necessity. Most States have legislation that serve as a broad framework for determining alimony payments. This is handled on a case-by-case basis and is distinct from the split of marital assets. Child support payments are distinct from alimony since they can only be used for the benefit of minor children while they are under the custody of the custodial parent. By giving a lower or non-wage-earning spouse a steady income, alimony aims to reduce any unjust economic impacts of divorce. A former spouse may have opted to forgo a profession to provide for the family, therefore they need time to learn employment skills so they can support themselves. Helping a spouse maintain their quality of living during the marriage may be another reason for alimony, particularly in higher-income households.

Courts have broad discretion in deciding whether to award spousal support, unlike child support, which is typically imposed in accordance with extremely precise monetary guidelines. The family law judge also determines how much and for how long if it is ordered. The Uniform Marriage and Divorce Act, which served as the model for spousal support laws in many states, advises that some considerations be taken into account by the court when determining alimony awards. These include the former spouses' age, health, mental health, and financial situation. Also, the amount of time the recipient would need to complete their education or training in order to become independent, the standard of living for the couple during their marriage and how long the marriage has lasted. The payer spouse's capacity to provide for the receiver while supporting themself is also taken into consideration.

An alimony decree often stays the same from year to year, unlike child support, which may occasionally increase to account for cost of living. Even if the ex-spouse earns a sizable raise in their taxable income or substantial bonuses at work, they won't profit from it like a kid may with an increase in support. On the other side, if the spouse who is paying alimony has a severe decline in income to the point that they are no longer able to pay it, they may ask the court to lower their alimony payment. Reviewing their tax records may persuade the family court judge to lower their alimony payments.

Judges are increasingly imposing alimony for ‘rehabilitative’ goals as a result of societal developments. That is, for just as long as it takes the recipient spouse (of either gender) to

391 ‘Find the help you need to represent yourself in NY Courts: Spousal Support’ (NY Courts 3 April 2017)

<https://nycourts.gov/courthelp/family/spousalSupport.shtml#:~:text=Spousal%20support%20is%20 mone

complete the additional training required for them to become financially independent. That is not to say that a court will never issue a long-term spousal support order, mainly if one spouse is elderly, incapacitated, or ill. If there is no termination date for spousal support in the divorce decree, payments must go on until the court makes an exception. In the past, former spouses of breadwinner ex-husbands received most alimony awards. Women are seen as less dependent now that most marriages include two wage earners, and males may be the primary caregivers. Spousal support awards and courts have kept up. The number of alimony orders from an exwife to an ex-husband is increasing. The Obergefell v. Hodges ruling by the US Supreme Court, which approved same-sex unions, is modifying alimony statistics as well. It goes without saying that alimony orders in same-sex divorce proceedings call for the higher-earning spouse to support a dependent same-sex spouse financially.

In New York, the determination of spousal support is generic, with little to no special rules or unique considerations. In New Jersey, this is not the case. The decision to provide alimony in New Jersey is dependent on several variables. Unless there are extraordinary circumstances, the period of alimony for marriages or civil unions that have lasted less than 20 years will not exceed the length of the marriage or civil union 392 In New Jersey, palimony sometimes known as financial assistance for ex-partners who were never married is also acceptable. However, it can only be awarded in cases where the parties have a formal written agreement stating that one would provide the other with support. The court will consider the duration of the marriage or civil union, each party's earning potential, the tax treatment, and implications for both parties, as well as each party's contributions financial and non-financial to the marriage or civil union, when determining whether palimony should be granted.393

In the Caribbean, there exist four tests for determining whether an award of maintenance should be made. They are the ‘Reasonable Requirements’ test, the ‘Equal Sharing Yard-stick’ test, the ‘Means and Ability Towards Self-Sufficiency’ test and the ‘Means and Ability’ test. These same tests are used in the determination of the property allocation upon the dissolution of a marriage. Although not explicitly outlined as these tests, states in the US follow similar considerations, especially in awarding alimony, as outlined above. It may be helpful to formally legislate the processes followed and considerations given to maintenance provisions in states like New York and New Jersey so that, like all other areas or the practice of Family Law, more precedents can

392 New Jersey Statutes Title 2A. Administration of Civil and Criminal Justice 2A § 34-23.

393 ‘New Jersey Alimony Laws’ (FindLaw 24 May 2018)

<https://www.findlaw.com/state/new-jersey-law/new-jersey-alimony-laws.html> accessed 1 November 2022.

be generated to help streamline the outcome of cases with similar facts. In the writer’s opinion, the fourth test is not suitable for implementation in the US since it is not up to date with the current global socioeconomic climate.

Trinidad and Tobago as well as other Caribbean nations can use the reasonable requirements test. The phrase ‘reasonable requirements’ was first used by Justice Ormrod in O'D v. O'D, 394 where he described the standard the court uses to determine a fair and just judgement. This test essentially follows the legislative requirements that specify the considerations to be used when determining a maintenance order, which are the last piece of legislation. These clauses direct the court to "put the parties, to the greatest extent practicable, in the financial position in which they would have been if the marriage had not irretrievably broken down and if each had dutifully discharged his or her financial obligations and responsibilities to the other party." The Equal Sharing Yardstick Test is only used when there are ‘surplus assets’, or when the parties' combined assets exceed their combined requirements. This approach only applies to high-value cases because most ancillary relief cases do not include surplus assets, making the reasonable requirements test an appropriate test for determining a fair and equitable outcome. In the case of White v. White395 it is demonstrated that applying the Equal Sharing Yardstick Test as opposed to the Reasonable Requirements Test makes a significant difference in the amount of maintenance that must be paid in ‘big money’ instances. This case demonstrates the necessity for justice and non-discrimination in situations where assets surpass both parties' financial requirements. The decision established a significant precedent for fair and equitable wealth split in divorce proceedings by focusing on equality and rejecting gender-based stereotypes. As a result, there must be equality; the wife shouldn't be limited to her requirements while the husband is left with a much bigger balance. The court's ruling in this case stressed that financial settlements should be based on each party's needs, and their contributions to the marriage financial or otherwise should be recognized equally and taken into account in the division of assets.

Only the following islands in the area are subject to the Means and Ability towards SelfSufficiency test; Antigua and Barbuda, Barbados, Jamaica, Montserrat, St. Kitts and Nevis, and Trinidad and Tobago (with respect to cohabitants). According to this standard, each spouse is now required to acquire financial independence and become self-reliant. This means that the husband is no longer solely responsible for paying spousal maintenance. Parts of this test are

covered by legislation that has been passed in the area. It is helpful to consider Knowles v Knowles. In this case, the court noted that, in contrast to the previous guiding principle, which was to put the parties as closely as possible in the position they were in as if the marriage had not broken down, the current position as articulated in the Divorce Act was geared toward fostering independence after divorce. The court must "insofar as practicable, to foster the selfsufficiency of each spouse within a reasonable amount of time", according to the case. In the means and capacity test, which is applicable in Belize, Guyana, and Montserrat, the court should secure to the wife such sum as the court deems appropriate having respect to her wealth, the ability of the husband, and the behaviour of the parties while issuing the order. As a result, alimony payments are provided to the woman only, as opposed to Barbados and Jamaica, where achieving self-sufficiency or economic independence is a legislative goal.

Since New York is an ‘equitable division’ State, each spouse has the right to any assets that are registered in their sole name, as well as the income they accrued throughout the marriage. However, a court will decide on an equitable distribution of assets during a divorce, which may or may not be exactly equal but is typically a good place to start.396 Likewise, the equitable distribution system used in New Jersey entails the court allocating assets in a way that it believes to be fair and reasonable. Depending on how fairly each party's interests are represented, this may or may not include dividing the assets equally. Separate property is defined as everything obtained by one spouse prior to marriage, as a gift, or as an inheritance. After a divorce, this property remains separate, and is not considered by the court in the allocation of assets to the other spouse.

Family Courts in the Caribbean have the authority to order the transfer or settlement of property for the advantage of any party to a marriage or a child of the family. Either marital or nonmatrimonial assets and property are subject to the order. Although the sharing principle also applies to non-marital assets the so-called ‘needs principle’ dictates that assets be transferred to the other spouse only when doing so is required to fulfill that other party's requirements. This is seen in the case of Scatliffe v Scatliffe. 397 In this case, the Privy Council seized the chance to provide some direction and clarification on the legal handling of non-matrimonial property. Property obtained by just one of the spouses before to the marriage or property given to that person alone as an inheritance during the marriage is referred to as ‘non-matrimonial’ property. The Panel described the degree to which a party's non-matrimonial property may still

be significant in the court's division of assets when it was found that the lower courts had improperly ignored Mr. Scatliffe's guest house, which he had received from his parents. There are several reasons why courts in the Caribbean should not consider premarital and nonmatrimonial property in the award of property in divorce. First, this property is typically acquired by one spouse prior to the marriage, and as such, it is not truly marital property. Second, premarital property is often acquired with the intention of it being used for the benefit of the family, and not just for the benefit of one spouse. Third, property owned outside of the marriage may have sentimental value to the spouse who acquired it especially if it was inherited or acquired as a gift, and this value should not be ignored in the divorce process. Finally, premarital property may be necessary for the financial security of the spouse who acquired it, and this should be considered when making an award of property in a divorce.

VII. Conclusion

There can be no doubt that the United States of America can benefit from incorporating some of the principles present in the practice of Family Law in the Commonwealth Caribbean Region and vice versa. Though both regions seem to be on par with each other as it pertains to the legal age to marry and must both improve across the board in ensuring the continued abolition of child marriage, the US can borrow from the Caribbean’s recognition of marriages outside of Christian and civil bounds. The territories of the Commonwealth Caribbean can consider the liberal acceptance of same-sex marriages in the US Conversely, prenuptial, and postnuptial agreements should be introduced in the Caribbean context. In the United States, considerations can be given to common law marriage in all States as it is a natural consequence of some intimate relationships. Consideration may be given to the formal adaptation of three of the various tests applied in the allocation of maintenance in the US. The distinction between individual and marital assets should be strictly legislated in the Caribbean.