History was made on March 6th 2015, when The Commonwealth of Dominica acceded to the appellate jurisdiction of the Caribbean Court of Justice (CCJ). What this means is that now, appeals from the State of Dominica from the Court of Appeal of the Eastern Caribbean Supreme Court (ECSC) will now be directed to the authority of the CCJ. Formally, final appeals from The State of Dominica were directed to the Judicial Committee of the Privy Council (Privy Council). This means that as of March 6th, Dominica joined the states of Barbados, Belize, and Guyana as having their court of last resort being the Trinidad based, CCJ. Dominica’s move is historical in essence. Though it may not be the first Caribbean State to subscribe to the CCJ’s appellate jurisdiction, it is the first member state of the Organization of Eastern Caribbean States (OECS) sub-region to make this move. This is where the heart of this discussion lies.
ECSC and OECS
It all begins with the ECSC, which serves as the superior court of record for the OECS. This is inclusive of the six independent states of Antigua and Barbuda, the Commonwealth of Dominica, Grenada, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, as well as the three British Overseas Territories of Anguilla, British Virgin Islands, and Montserrat. Consider this to mean that the Court is by and large, overseeing judicial matters of the OECS member states as a whole body. Those of us from the region, who operate within the legal profession, as either students or practitioners, have come to understand the uniqueness of these circumstances. The large umbrella that is the ECSC, allows for our law as a whole to develop within each territory, for the benefit of the wider region. We are fortunate enough to be able to access a wide scope of legal precedent, reasoning and argument, from across the region and use them to breathe life into any matter before the courts. A decision reached in one member state, on one particular matter aids in determining a similar matter in another member state. This is especially so when statutes and other guiding material are similar or same. The doctrine of Judicial Precedent makes it so that the stream of judicial decisions made throughout the region runs through each and every state, uniting our law. Unless specific circumstances apply to a specific state (such as a difference in the wording and construction of a statute) one can feel fairly certain that the courts considerations in one member state should be consistently considered in another.
The ECSC is charged with the vital task of preserving and simultaneously developing a substantial part of the legal framework of all of its member states. This is achieved through its single appellate body which sits atop its lower court structure. The court of appeal is a single panel of four (4) Justices of Appeal as well as the Chief Justice who heads the Judiciary. They hear the appeals from the lower magistrate’s courts and high courts of the member states. The other part of the sub-region’s legal framework was dealt with by the Privy Council, who heard final appeals from the ECSC (court of appeal division) for all of the member states; until now. Dominica’s move marks a noteworthy shift in the states jurisprudence. However, it may also be argued to have marked a deviation from the collective judicial direction of the OECS.
Dominica is now in the unique position within the OECS to have its first instance and first appeal matters heard by the ECSC, but unlike the other territories within the ESCS’s jurisdiction, any further appeals from Dominica will go to the CCJ, with all of the other member states still having to direct their appeals to the Privy Council. This raises at least two (2) points of discussion.
Doctrine of Judicial Precedent
Applying this doctrine, the rules set by a higher court must be adopted and applied by all the courts below it. This means that in the hypothetical instance of the Privy Council deciding in a case that “all contracts for sale of cars must be in writing,” this rule will be applicable by the ECSC, through both the Court of Appeal and lower courts which fall within it. With that said, it will be fairly safe to say that the rule that “all contracts for sale of cars must be in writing” is the “law” in all of the OECS states. This is of course, with the exception of Dominica. For if the CCJ in deciding a case of a similar nature, rules that “all contracts for sale of cars need not be in writing” then the ECSC must apply this rule as “law” only in the jurisdiction of Dominica. In essence, Dominica will have a different rule from the rest of the OECS, being applied by the same court as the rest of the OECS. This is not a problem, per se. However, it represents a sub region which is in danger of being united by many aspects, but being potentially divided in its laws.
The CCJ has demonstrated, in the case of Joseph and Boyce v AG of Barbados  CCJ 3 (AJ), its ability to rule effectively on a matter previously heard and decided by the Privy Council. In essence, the factual effect of the rule set by the CCJ was not very different from the Privy Council. However, the CCJ’s use of the legal doctrine of “Legitimate Expectation” is clearly different in application to the Privy Council’s approach, which sought to utilize wider Constitutional protection to extinguish the death sentences of the appellants. In essence, the CCJ still gave effect to the Pratt v Morgan rule that a death sentence not carried out within 5 years of its declaration should be commuted to a sentence of life imprisonment. This ruling may have come as a disappointment to persons who looked to the CCJ to dispose of the time limiting rule set by the Privy Council. With that said, the legal future to Dominica should be monitored closely, as it requires an effective marriage of all of the elements which now play a part in the sub regions legal development.
It can be said that the other subscribing states to the CCJ’s appellate jurisdiction stand in a different position. That is because the states of Barbados, Guyana and Belize fall within the legal jurisdiction of the Supreme Court of Judicature (Barbados), the Supreme Court of Guyana and the Supreme Court of Belize, respectively. Each one manages lower court and first appeal court matters for their relevant states. The major difference between these three (3) systems and the ECSC is that each of the three (3) are serving a single state, as opposed to the ECSC which serves nine (9) separate and independent states.
Now, one must look to the current state of affairs. The Commonwealth of Dominica is still very much under the umbrella of the ECSC. However, unlike its sister OECS states, the canopy of wider shelter which exists above that umbrella is provided by a different source. Has Dominica potentially segregated itself in the development of OECS jurisprudence? Or has it provided an initial spark for the framework for regional debates on a collective and effective move of the sub-region to the CCJ?
Each of the OECS States, with the exception of the British Overseas Territories, is a sovereign state. This means they are free to decide independently and for their own benefit, their state of affairs. This includes the direction in which their legal development goes. Some may say that a collective move may aid in establishing, or re-establish (which ever the case may be) one solid system under which all of the states operate. This of course, would be as opposed to a fragmented approach of territories independently and asynchronously moving towards the CCJ’s rule. Especially over a long time period. It may be best to ensure that if the region as a whole intends for this move, that the region should come together to ensure that it is done in such a manner, so as to preserve and protect an accessible, effective and applicable system of law.