FOUN 1301

LAW LECTURE 1

SOURCES OF LAW &

HIERARCHY OF COURTS
 INTRODUCTION

A] Defining law

B] Categorizing the law

C] Explaining the judicial system in Caribbean countries

D] Explaining judicial precedent & common law

THE LAW

A] the system of rules which a particular country or community

recognizes as regulating the actions of its members and which it
may enforce by the imposition of penalties:
"shooting the birds is against the law" · "they were taken to
court for breaking the law" · "law enforcement“

B] The discipline and profession concerned with the customs,

practices, and rules of conduct of a community that are recognized as
binding by the community. Enforcement of the body of rules is through
a controlling authority.
1] Laws are categorised into subject areas for convenience
which can be subsumed under two major categories.
Thus, we have the study of the following two major
categories:
A] Criminal law, which deals with the rules of law
relating to, say, the elements of the crime of murder
and the various defences which might be available.

B] Civil law, which deals with wrongs committed by

one private individual against another. These would
include situations where injury is suffered by one
person as a result of negligence by another, say, in
a motor vehicular accident.
 Functions of Law
A. To Legitimise – to establish the recognition of the law as the supreme
law applicable to all

B. To allocate power - which individuals and/or bodies are to exercise

power over public functions, to impose authority to perform a public function –
Police, Customs

C. To order society – control over the conduct of affairs in society e.g.

Industrial Relations Act- sets out procedure for strikes, collective
bargaining

D. To control individuals – Ensure peace and order in society and

protection from infringement of rights, Criminal law
E. To resolve conflicts - Courts established to enforce law, create law
and resolve conflicts – Contract and Tort

F. To dispense justice – enactment of legislation to protect society from

exploitation and abuse from the capitalist class e.g. Maternity Protection
Act 1998- “An Act to provide a minimum level of maternity leave benefits and
protection”
(1) Subject to this Act, an employee is entitled to—
(a) leave of absence for the purpose of maternity leave;

(b) pay while on maternity leave;

(c) resume work after such leave on terms no less
favourable than were enjoyed by her immediately prior
to her leave.
G. To change society and individuals - to adapt to the
demands and needs of the society and to prevent moral
decay and misbehaviour by enacting legislation or
development of common law
Issue of social media – dissemination of photos, cyber
bullying, defamation of character
Cyber Crime Bill
Court’s Comments on sharing of intimate photos without
consent
A. There is a tendency for persons to hide behind the perceived anonymity that
comes from using a ‘username’ and/or a user profile while sitting behind a
computer screen or when using a hand held device to engage in offensive,
hurtful, divisive and destructive discourse

B. The Court found as a fact that it was the Defendant who first breached the
confidentiality by distributing/sending the photographs to ………without obtaining
the Claimant’s consent. The Court also found as a fact that the Defendant’s
actions were motivated by a desire to cause the Claimant upset, embarrassment
and distress. In the circumstances therefore the Claimant is entitled to relief.
 Sources of Law
• Constitution
• Legislation
• Common Law
• International Law: Treaties
• Different Sources are not independent of each other
 The Constitution

A] The most important legislation of any country in the

Commonwealth Caribbean is the Constitution. The Constitution
of a country declares itself to be the supreme law of the land. Any
other law which might be inconsistent with the Constitution is null and
void, to the extent of that inconsistency. Part of the work which our
judges are involved in is to determine whether laws passed by
Parliament have run contrary to any constitutional provisions, and
if so, to strike down such legislation. But the importance of the
Constitutions does not lie merely in its supremacy over all other
laws, but more significantly in its content.
B] Each Constitution in the Commonwealth Caribbean
contains a Bill of Rights. The Bill of Rights sets out the
fundamental rights and freedoms to be enjoyed by
everyone and which neither Parliament nor any other state
authority, including the police, is permitted to violate.
Included among the rights and freedoms are the right to
life, liberty and property; the right to associate freely, and to
freely hold and express opinions; the freedom of press
and freedom of religion.
B] The Constitution is also important because it establishes
and regulates the various social institutions which make up
the democratic system. Thus, the Constitution spells out,
among others:

1] rules governing entry into the upper and lower houses

by way of either appointment or election;
2] the power which Parliaments possesses to make
laws, including laws which might amend the
Constitution;
3. the procedure which must be followed to enact such
laws.
C] Moreover, the Constitution also does the following:

1] Establishes the Supreme Court.

2] Identifies the persons who have the authority to
appoint judges.
3] Prescribes the qualifications for such appointments.
4] Addresses issues such as the remuneration which
judges are to receive, and the procedures to be
followed in order to remove a judge from office,
etc.
5] Deals with the institution of the President or the
Governor General, including the powers of this
highest institution in a country.
Functions of the Constitution

A] The Constitution defines citizens’ rights and the shape of

both the legal system and the political system.

B] The Constitution lays down mandatory procedures for

government. It is the foundation for judicial review, States
basic human rights, including avenues for redress of
violations of such rights and promulgates new remedies
C] The definition of the territory of the State; the creation and
establishment of State institutions and the distribution of
the functions of the State;

D] the granting of authority to make laws; the furnishing of

legitimacy to the State through the existence of an independent
body of law which regulates the State.
A] Form and structure of the Constitution The typical Constitution in
the region contains the following chapters or sections:
1] a preamble;
2] chapters on citizenship;
3] a section on fundamental rights and freedoms, called a
Bill of Rights;
4] chapters defining the powers of the Head of State and
Parliament;
5] chapters defining the powers and establishment of the
Executive and Judicature; chapters establishing and
defining the role and functions of the Public Service and
Judicial Commissions;
6] chapters on finance;
7] in addition, there is a statutory formula giving Parliament
power ‘to make laws for peace, order and good government’
 Legislation
• Refers to the body of laws enacted and Parliament

• Parliament derives this authority from the Constitution

• Section 53 of T&T Constitution

• Most important source of law

• Also referred to as codification

A] Based on the Civil Law tradition

B] Deliberate law making function

C] Parliament can create law, repeal and abolish law

D] Legislation is its own legal source unlike the common law-

statutory interpretation
 The Making of Legislation

1] Starts with a Green Paper- introduces to the Public the

proposals for discussion and invites comments.
Note that a Green Paper contains ideas about a
particular subject, published by a government. The
purpose of a Green Paper is to allow people to discuss
these ideas before the government takes any decision
2] White Paper- after consultations the government sets
out its firm proposals for the legislation

In other words, a White Paper shapes the government's

policy in the form of a legislation. This is then put forward
in a draft form, called a Bill. A Bill is a document
containing the various provisions on which the members of
Parliament are asked to vote and bring into law. It usually
contains explanatory notes, setting out the rationale for its
various provisions.
 The Role of Parliament

A] Bill- Draft legislation to be presented to the Parliament for

debate and voting

B] Bill must achieve the required majority in Parliament after

voting

C] If majority achieved the Bill is forwarded to Head of State

for Assent after which is becomes law
Function of Legislation
A] Revision of previous laws and the common law that may
be archaic, problematic or the need to reflect modern
demands

B] Consolidation- different laws for a particular topic- e.g. In

T&T, we have several pieces of legislation for land ranging
from 1950 Ordinance to 2020 amendments

C] Codification- Turning case law or precedent into statute

Subordinate/delegated legislation

A] To save parliamentary time, the main principles of an Act

are usually presented in numbered sections. The other
details are presented as schedules at the end of the Act.

This is to facilitate debate on the sections. Though it does

save the time to a certain extent, there are other
procedures, such as fixing the commencement date to bring
the Act into effect or getting a technical input, etc., which make
a considerable demand on parliamentary time.
B] To circumvent these time exhausting procedures, Acts of
Parliament contain provisions which empower the Head of
State, Ministers or some other authority, to make
regulations with a view to effecting the purposes of the main or
parent Act. These regulations are referred to as subordinate
or delegated legislation.
 Functions of Delegated Legislation

A] Speed and Efficiency – Delay in passing legislation

B] Technicality and Special Knowledge - some legislation is

quite technical and therefore left to experts

C] Flexibility – can be revoked or amended very easily

D] Bulk- too much information to put before Parliament

 Common Law
A] One of the major sources of law in the legal systems of the countries of
the Commonwealth Caribbean is the common law. But what do we mean
by the common law?

B] Common law is a body of rules developed over time by judges in the

course of resolving disputes between private individuals or between citizens
and public authorities. For this reason, the common law is also referred to as the
judge-made law.
A] Developed in an ad-hoc and case by case basis

B] Depends on an efficient system of recording cases and

judgments-Law Reports

C] Applies today if there are cases where there are no previous

precedents- discuss such cases

D] Argued that the common law does not merely declare the law
but creates it

E] Provides for stability in the application of the law

F] Common law harsh and rigid – details of your case had to
fit in the common law rules that were developed over time

G] Development of the principle of equity and rules of equity

which add to the common law

H] Equity applies notion of good sense and fairness

D] Collection of revenue- Legislation designed for the
collection of revenue

E] Implementation of Treaties- legislation must be passed to

ensure the state is adhering to Treaty obligations

F] Public Policy- Covid-19

G] Response to pressure groups – marijuana?

THE DOCTRINE OF JUDICIAL PRECEDENT – CHARACTER
AND RATIONALE

A] Central to the notion of the common law as a legal source

is the doctrine of precedent, in particular, binding
precedent.

B] The doctrine provides the impetus and scientific rationale

for the development of the common law on a case-by-case
basis. It is, therefore, an important source of law
C] The doctrine of judicial precedent proceeds on the
assumption that where there are no appreciable statutes on
a particular issue, the judge must look to the case law, that is,
cases decided previously said issue, to find the relevant law
upon which to base his or her decision.

D] There are two types of judicial precedents: ‘binding

precedent’ and ‘persuasive precedent’
1] Binding Precedent: The doctrine of binding judicial precedent,
stare decisis, is based on the premise that the function of judges is not
to create law, but to find law in conformity with existing legal rules.
Thus, the judge legal obligation to use decided cases, not merely
for guidance, but is bound to apply the principles of law found in such
case. This coercive character of the doctrine of precedent is a
feature peculiar English legal tradition. One of the first judicial
pronouncements on the doctrine of binding precedent and stare
decisis is to be found in the case of London Tramcars Co Ltd v
London County Council, where Lord Halisbury stated that ‘a decision
of this House once given upon a point of law is conclusive upon the
House afterwards, and it is impossible to raise that question again
as it if was res integra and could argued’.
2] Persuasive precedents
In converse to binding precedents, persuasive precedents
are those legal principles contained in judgments which
merely offer guidance. The judge will refer to these
precedents, but they are not binding
Persuasive precedents may also originate from courts
lower in the hierarchy and the decisions of courts in other
jurisdictions. In the Commonwealth Caribbean, for example, the
decision of the Court Appeal of Barbados is only of persuasive
authority to a court in Jamaica
International Law: A Fourth Source of Law?

A] International Law is the body of legal rules which apply to

States in their international relations. So, for example, if an
ambassador from, say, State X is arrested and beaten up
by the police in State will be a breach of International Law
because the ambassador is protected by applicable rules of
this system of law.

B] For the present purposes, we may assume that two main

sources of International Law are of primary concern to
States. These are: (a) treaties, and (b) custom
1. Governments of the countries of the Commonwealth Caribbean are
signatories to a number of international treaties. Among the most
important treaties for the present purpose, are the:
(i) International Covenant on Civil and Political Rights;
(ii) American Declaration of the Rights and Duties of Man;
(iii) Convention on the Elimination of all Forms of Discrimination
Against Women.

The first two treaties mentioned above declare the existence of the
fundamental rights and freedoms, most of which are already
incorporated into the Constitutions. As its title suggests, the third treaty
declares the principles of equality between the sexes and its
signatories are mandated to take all necessary steps, not limited to the
enactment of law, to ensure the eradication of all remaining vestiges of
inequality between men and women.
2] Is international custom automatically a part of the law of T&T? This
issue could give rise to much discussion, and the answer is not
entirely clear. No court has accepted that custom is automatically a part
of the country's law, and this certainly supports the idea that customary
international law is not part of T&T law. On the other hand, there are
some cases from the United Kingdom suggesting that, in some
respects, customary international law is a part of the domestic law of
England. Even here, however, the matter is open to some doubt.16 In R v.
Jones (Margaret), example, the United Kingdom House of Lords held
that a crime recognized by customary international law is not
automatically recognized as a crime in English Law. In the
circumstances, we may that the question whether customary
international law is automatically part of T&T law awaits a final
decision, but the better view appears to be against the automatic
incorporation of customary international law in Jamaican law
HIERARCHY OF COURTS

A] The law in force in any country of the

Commonwealth Caribbean is administered by the
Courts, or Tribunals, established under the
Constitution, or by specific legislation enacted for the
purpose.
Courts of limited jurisdiction
A] There are a number of courts and tribunals of limited jurisdiction. By this is
meant that the specific court or tribunal may only hear and determine
those specific matters which the Statute identifies, and over which it gives
its authority. Limited jurisdiction courts and tribunals include:
1] Industrial Courts (as in Trinidad and Tobago and Antigua): Their
jurisdiction is limited to the hearing and determination of industrial
disputes between employers and employees, and their trade unions, over
a variety of matters, such as the conclusion and enforcement of
collective agreements and disputes over disciplinary action
taken.
2] Rent Tribunals: They are set up to resolve disputes between
landlords and tenants.
3] Public Service Disciplinary Tribunals: The sole purpose of these
tribunals is to examine and determine the facts in relation to disciplinary
charges laid against public servants.
Magistrate’s Court

A] Established in districts - has conduct over criminal

offences, preliminary enquiries, limited family matters
(custody, maintenance, access, domestic violence)

B] Magistrate’s Court – hears and determine matters by a

single person (Magistrate). Must follow rules of natural justice
E.g. Bail Act
High Court
The Court is sometimes also referred to as a superior Court of
Record, so that its records are normally preserved for reference
and for legal guidance. In some Caribbean jurisdictions, the
"High Court" is used to denote the Court of unlimited jurisdiction

A] Supreme Court – administered by judges

B] Unlimited jurisdiction

C] Get its authority from the Constitution

D] Guardian of Constitution
E] Different Courts – Civil, Criminal and Family to deal with
the specific issues

F] Civil – Contract, Tort, Judicial Review

G] Criminal – Murder – trial by jury

H] Statute can limit its jurisdiction- e.g. Bail

A] For civil cases, the High Court does not normally sit with a
jury. With respect to certain serious crimes, there is usually
a jury for Court cases; such crimes include murder,
manslaughter, treason, and rape. Where there is a judge and
jury, the judge will make decisions about the law in the case,
while the jury will make decisions about the facts. In a criminal
case, therefore, it falls ultimately for the jury to decide the
guilt or innocence of the accused at the end of the trial. From
time to time, there have been government proposals to
reduce reliance on juries, including in murder cases
Court of Appeal

A] Hears appeal from High Court and Magistrate’s Court

B] Right to appeal dependent on Act of Parliament- no

general right to appeal

C] Administered by Court of Appeal Judges

D] Appeals from Magistrate Court – Sentence too severe,

Magistrate erred in law

E] Appeals from High Court – issues of law, procedural

appeals
Court of Final Appeal - The Privy Council

A] The court of final appeal for most Commonwealth

Caribbean States is the Judicial Committee of the Privy Council
(also called the Privy Council). Appeals from various countries
to the Privy Council originated during the early days of the
colonial period, when appeals were allowed from the
"colonies and plantations" to the final court in England. The
modern form of the Privy Council as a court final appeal has
its roots in the English Judicial Committee Act of 1833,
which established the Privy Council as a body "to report and
recommend" on decisions of all appeals from decisions of
the c in the British Empire
A] Hears appeal from Court of Appeal from Commonwealth countries
(T&T)

B] Located in the UK – judges of the UK Supreme Court sit as

Judges of Privy Council

C] Limited to certain matters as directed by each country

constitution. E.g. election petitions in T&T

D] Its jurisdiction is limited and restrictive

Two types of appeal to the PC- “as of right” and “with leave”
“as of right” appeals involves matters of constitutional
interpretation
In criminal cases the PC rarely grants leave unless it can be
shown that a serious miscarriage of law occurred
Caribbean Court of Justice

A] Original jurisdiction – CCJ applies international law rules in

applying the Treaty of Chaguaramas
“Guardian of the Revised Treaty of Chaguaramas by
guaranteeing accessibility, fairness, efficiency and transparency,
delivering clear and just decisions in a timely manner.”- CCJ
website

B] Appellate Jurisdiction – acts as Final Court of appeal from

member states who recognise CCJ as final court instead of
Privy Council Situate in Trinidad but can sit in any other
Member State
C] Judges appointed by a Regional Judicial and Legal Service
Commission

D] Must ensure the independence of judges who may engage

in the same circles, emerge from the same class and share
similar views
CCJ- Original Jurisdiction

A] The Revised Treaty of Chaguaramas establishes Caribbean

Community and Common Market Single market and economy
Any individual, company or member nation can bring a matter
before the CCJ in its original jurisdiction
SM Jaleel & Co Ltd & Guyana Beverages Inc
Claimants v The Co-Operative Republic of Guyana
Guyana levied the tax of G$ 10 per beverage container
No similar tax payable in respect of locally made non-
returnable containers
Guyanese manufacturers had a clear competitive advantage
over other CARICOM manufacturers
As such, the tax was, essentially, a discriminatory import duty
in breach of Article 87 of the RTC
Where are we today?

A] Guyana, Barbados, Belize and Dominica use the CCJ as its

final court of appeal

B] Antigua/ Barbuda and Grenada had a referendum on CCJ-

voted no to CCJ