by Sir Lawrence A Joseph
In recent weeks quite a lot of references have been made about the decisions of courts in India, Gibraltar, United States and in Belize especially in relation to the Rights Bill which is scheduled for Referendum on 24 November next. These references were made in order to suggest that the “Eastern Caribbean Supreme Court” in which Grenada is a participant may well be obliged to follow the decisions of those courts regarding the interpretation of sex, gender and gender equality. These terms are contained in the proposed Rights Bill. The question, therefore, arises: How far can the Eastern Caribbean Supreme Court rely upon decisions of courts outside of the jurisdiction in order to make its own decisions?
Adjudication, which is the process whereby judges make determinations upon disputed legal matters which come before them is not usually done in a vacuum but is dependent upon rules principles and standards. Whilst a number of laws are settled laws which are either established by constitutional provisions, legislation or by case decisions, there will always be new situations which will tax judicial discretion and reasoning. The existing 1973 Constitution of Grenada and even the proposed Rights Bill may well present new situations for adjudication. In such new situations, judges would have to rely on precedents which were established in other cases in order to guide their deliberations. A precedent in effect is a statement made of the law by a judge in deciding a case. It is only the reason for the decision (the ratio decidendi) that is conclusive and not the obiter dictum. This approach relieves the judge from rethinking each problem anew because he now relies upon past experiences.
However, these precedents are only binding within the same court system. This type of precedent is referred to as an “authoritative precedent” constituting a legal source of law. With this type of precedent, the doctrine of stare decisis has been generally relied upon over the years as a measure to restrain judges from overruling previous decisions. The term comes from the Latin maxim: “Stare decisis et non quieta mavere” meaning “to stand by decisions and not disturb the undisturbed”. The doctrine has been facilitated by an established hierarchy of courts and a reliable system of law reporting in common law jurisdictions. A decision of a superior court constitutes a binding precedent which an inferior court within the same jurisdiction cannot change. Parallel Courts within a single jurisdiction are not bound by each other’s decision and a decision of a lower court cannot bind a superior court.
It is generally agreed that a court system cannot be bound by decisions which were made outside of that court system. Therefore, a Supreme Court decision which was made in India, in Gibraltar, in the USA or in Belize cannot be binding in the Eastern Caribbean Supreme Court. Such a decision may only have persuasive influence where the judges are under no obligation to follow it, but it remains one which they will take into consideration, and to which they will attach such weight as it seems appropriate. In such situations, all the cultural and sociological experiences of judges will, in fact, have tremendous influences on their decisions.
During the Maurice Bishop murder trial in 1985, President Haynes of the Grenada Court of Appeal expressed appreciation for the significant number of Commonwealth cases which were cited by counsel, but he correctly made the point that those cases were not binding on the Court, but could only have had persuasive influence. He then endorsed the general principle of a previous case (Republic v Ibrahim) which was heard in Cyprus in 1964 which stated that “the mission of the supreme judicial organ in any state is to lay down authoritatively its own law and not (automatically) to apply the law of any other state, though past precedents anywhere are always of great help.”
This is one of the reasons that the case for Grenada to adopt the Caribbean Court of Justice (CCJ) as its final court of appeal is being made out so strongly by many. Whilst the judges of the Privy Council in keeping with their own cultural and sociological experiences may lean towards allowing same sex marriages and relationships, it is most doubtful that in the Caribbean context, the judges of the CCJ would follow the same path. For example in the Gibraltar case of Rodriguez v Minister of Housing, the Privy Council in 2009 overruled the courts in Gibraltar stating that the non-allocation of a joint tenancy to a same-sex couple was discriminatory and unconstitutional despite the policy of the government there that joint tenancies were to be given only to married couples or unmarried couples with at least one child in common. It is most doubtful that the judges of the CCJ would be minded to so decide in the Caribbean context.
