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If the West Indian States are truly to progress from colonialism to sovereignty, then there has to be recognition that their constitution now generates their own authority rather than deriving it from any Westminster model or colonial past. The Westminster system was a system used to operate legislation. Caribbean countries, although many are considered independent there are also a few that are dependent states. The Westminster system came about when these Caribbean countries were colonized. The era of Imperialism.
According to the law, although many of these Caribbean countries are considered “independent” Belle Antoine talked how the study of law and legal systems is so diverse and it isn’t separated from its social contexts. This mean that, although they are their legal system, it still is influence by the British. There were two types of laws that were imposed upon the colonized Caribbean countries, there were English statute law and English common law. These were introduced to bring about incorporation clause and a way of proclamation. Like mentioned imperialistic contract played a vital role in the countries that were being colonized. With the Westminster system comes a lot of history, legacies and contemporary implications.
According to A.V Dicey, the Westminster Model was a dispersed pattern of rule in which the judiciary sometimes played a role, which was very different.They have had practical impact in the urgency with which the region has had to implement laws against terrorism( chaptep 1 page 6 Commonwealth Caribbean Law and Legal Systems”-goes to talking about the vulnerabilities that were created out of the earlier years when colonialism and itsColonial ruleBorrowing of jurisprudence.What is jurisprudence?Sovereignty is defined as supreme power or authority. Between the year of 1962-1983 many Caribbean British colonies gained independence.
One of the independent Caribbean countries is The Bahamas. Although we’re considered an independent country, our higher court is still located in the United Kingdom (UK), Britain- The Privy Council (Like the other independent former colonized countries). As an independent country, we should have some sort of sovereignty because we’ve gained our independence and should no longer have to answer to those that once had us colonized. There should be divergence between independent countries and their colonizers.Reception of the law brings about uncertainty. It also shows how citizens and officials handle the law. Reception of the law expresses extension by UK Parliament.
According to Professor K.W. Patchett of the West Indies, he stated that the UK Parliament has lost its legislative power over the independent territories. In this case Lord Diplock, expressed the fact that no matter how independent a country may be, once you were a former Bristish colony the English common law is still incorporated, because it was once upon the colony. The issues in this case was whether or not the law which governed the interpretation of the appellants differentiates with the Ceylon Government, Roman Dutch law on if the matter is governed by English law?Nyali Ltd v AG dealt with transplantation and reception. CASE- Public Counsel v The Fair-Trading Commission, which was a Barbados caseCASE- R v VaughnCASE- Campbell v Hall, these were Jamaican cases and the crown treated Jamaica as a settled country when it came down to these cases and it was accepted by the Supreme Court.
Jamaica was one out of many Caribbean colonized countries to be conquered. It held that, as a colony and partial self-governing colony, Jamaica continued to be bound by the development of the law and equity by the stare decisis. (page 79 belle anotoine). However, this was only until the country became independent. This came from an English statute in Jamaica in the case R v Commissioner of police and others, ex p Cephas (No 2) JAMAICA- It is said that the virtue of the exercise of the crown’s prerogative was how the common law was introduced to Jamaica. The Westminster system was considered the “Independence pact” which came with minor variations for most of the territories. This dealt with change in property rights in the Jamaican constitution, the two-party system, preservation of the law (symbols, and institutions) of this colonial state, and alliance with western powers. It is clear that the template of many of the independent countries’ constitution were supplied by colonial office.
The Jamaican’s Constitution of Jamaica starts off like “At the Court in Buckingham Palace” which is then followed by eight pages of medieval sounding languages. As independent countries we should be able to make and enforce our own rules. We are no longer a colonized country so in order for us to reach sovereignty level we’d have to stop being so dependent on the crown. What is also hard to pull back from seeing that our highest court (The Privy Council) is located in England. This leaves us with the question, what would the country have to do to get to sovereignty, if possible? These laws that were made up out of the Westminster system would have to diminish completely. It seems as though although these Countries are independent it’s almost as if they admire the Westminster structure.
Prime Minister Dr Eric WIlliams of, Trinidad and Tobago declared that ‘if the Parliamentary system is good enough for England, it is good enough for us.’ we’re at a historical turning point where a change is needed and if we needed so much dependency, we should have stayed completely, under the British and not fight for our independence. Above all the compacity of the public/society would be considered sovereign. The ability to stand up for the people and what is right, including our boarders protecting them by any means necessary. Sovereignty also starts in the mind of the people. Itis obvious that the old thinking opposes regionalism. We should be able to share selected attributes of constitutional sovereignty with our regional partners. This brings about some sort of substantive sovereignty for each country. We need to be able to break free from those that colonized us and create the society we wish to have.
However, CLR James once stated that either one has to go the colonial system or democracy because both can’t co-exist. “for until a local legislature is formed difficulties must be experienced in making statutory changes”(FOOTNOTE- Jamaican law journal 18 )Parliamentary sovereignty mean that parliament can make or unmake laws and no other institution can overrule that like how the crown could now. parliamentary sovereignty implies subordination of the judiciary. This is where the separation of powers comes in. Judges don’t make laws but they’re able to make precedents.We should stick to statute law and not common law.
Certain aspect of the common law of England was preserved for these colonies that are both independent and dependent by legislation. After independence most of the former colonized states established their own courts of appeal and retained appeals to the Privy Council, which was then their higher court. English common law brought about ways in which former colonized countries still had to adapt. This was seen in Family Law (Henry v Henry). This was a case dealing with a Muslim marriage who brought about a complaint against her husband under the separation and maintenance order, stating that he willfully neglected her.
Any marriage dealing with Muslims were considered polygamousA learned Chief Justice in the course of the judgment made this comment: “It is a well-established principle of law that the only kind of marriage that entitled the parties thereto to the remedies, adjudication or relief of the matrimonial law of England (which is the basis of our general law relating to marriage) is a marriage that is monogamous in the Christian sense of the term.”Common law compromises the whole English law not to be found in legislation. This includes equity, express distinction is drawn between the common law and “the doctrines of equity” ( FOOTNOTES 31Jamacian law journal). However, one important limitation is that colonies only carry so much of the English law as is applicable to their own situation and the condition of an infant colony.
1. Norman Girvan (2015) Assessing Westminster in the Caribbean: then and now, Commonwealth & Comparative Politics, 53:1, 95-107,DOI: 10.1080/14662043.2014.993162
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