In her second book (published May 5, 2011), Caribbean legal expert and friend to this site, Abiola Inniss discusses and presents solutions to some of the major issues which plague Caribbean law today. I recently caught up with her and asked her to share some of the details of her book with us, and she obliged by answering the following questions I posed.
Q: What do you see as the most pressing issues in Caribbean law today?
I certainly believe that the issues of law and policy which have direct and immediate application and effect on people’s lives are the ones which we need to deal with at once. If someone is trying to earn a living in a way that has become largely acceptable in society but which is prohibited by law as in the case of street vending of Cd’s and DVD’s which have been copied, then we have to ask and answer several questions. The first would be, ‘Is there any harm which results to society by this practice?’ Second, ‘if so how much?’ Third, ‘Are the benefits greater than the harm?’ Fourth, ‘Is it then necessary to revise the law to completely eliminate the practice or is it possible to find means of balancing the interests of all concerned?’
Intellectual property rights and law are hugely important issues of direct effect. So many people have come to depend on the vending of high demand works which are normally subject to copyright as a means of taking care of their families, that some governments are willing to simply turn a blind eye to the issue instead of finding innovative means of balancing the interests which will take account of the country’s unique circumstances while providing protection and financial security to copyright holders.
Next in line would be access to Justice for Caribbean people. The common way of thinking about justice and access to it normally encompasses being able to afford an Attorney and going to court quickly to resolve matters. Access to justice is far more than that because a justice system which is comprehensive includes access to alternative ways of settling disputes, known as Alternative Dispute Resolution (ADR). This includes mediation, where the parties sit with a trained neutral who helps them to come to a settlement. The mediator is not a Judge and so the decision which the parties arrive at is of their own making. It has been found that people tend to stick to these arrangements and that there is a lot less acrimony than following a court decision. There are also Arbitration which settles business disputes and negotiation which is close to mediation except that the negotiator is a go between.
Jamaica’s Dispute Resolution Foundation created by Donna Parchment Brown has demonstrated the success of ADR. It has helped to solve all kinds of problems both criminal and civil in orientation. Issues with gangs and communities have been successfully mediated; family disputes, commercial disputes and others have been resolved using ADR method. All Caribbean countries need to have these methods included in the Justice systems in order that there can be greater efficiency and higher levels of compliance and satisfaction with the legal system .At the same time many systems need to be modernized so that these methods can work to make a difference.
Included in access to justice is the whole issue of the acceptance of the Caribbean Court of Justice as the final Court of Appeal for Caribbean countries .The CCJ has the all-important task of shaping Caribbean jurisprudence, something which regional judges are more than capable of doing since they have proved time and again at the international level that their Judgments are sound and based on good legal theory and methodology and which the CCJ is actually doing. It has pronounced on difficult cases in Guyana Land law which is Roman-Dutch in make up as against the major part of the Caribbean which comprises English common law. In so doing the court has cleared the way for there to be better understanding and correct application of the Guyana land law system. The Privy Council, because of their distance and lack of local knowledge, would have been more likely to treat the matter differently.
I believe that the politicians, who claim that the CCJ is not good enough to be the final court of Appeal for the entire region, are not really interested in the development of a Caribbean region in which citizens are happy to remain because there is adequate protection of their rights through adequate and affordable justice, where our culture is understood and incorporated into the system of justice, where we can take pride in our contribution to world jurisprudence and display systems which earn international respect among other things. These politicians seem incapable of a vision bigger than their own petty egos and more importantly cannot answer questions regarding the jurisprudential, systemic and economic future of the region.
Europe has not hesitated to get on with the task of developing its Court of Justice and its Economic Community , but unfortunately for us some politicians who hold power, claim that it is necessary to hang on to the frock coats of English jurists who will make decisions for us. Incidentally the House of Lords (the highest court in the UK) was retired in 2009 and in its place is the Supreme Court of the UK, these reforms indicate a constant re-examination of legal systems and a willingness to find ways of developing systems to make life better.
A Caribbean politician will tell you “If it ain’t broke don’t fix it!” and then hold countless meetings to discuss the problems of regional integration. In the Caribbean we need to consistently evaluate how our legal systems are working and to seriously investigate and invest the intellectual and other resources to make them better.
Q: How pressing are legal issues concerning gay, lesbian, and transgender people in the Caribbean.
Historically, Caribbean culture has not been particularly accepting of alternative lifestyles to the point of serious physical violations being meted out to those who adhere to those lifestyles. In these circumstances the law makes anyone who purposefully harms another criminally liable and civil liability may be found for damage to property etc. There is no distinction there. People who follow an alternative lifestyle are entitled to the same human rights as those who do not. Unfortunately, some people in some communities see openly homosexual people as less than deserving of those rights; it is these perceptions that social activists have been working to dispel, and as with anything which has been culturally entrenched, it will take some time to do so. In some countries the law still makes sexual activity between two persons of the same sex an offence and attaches a term of imprisonment. Interestingly, while under Guyana law sexual intercourse between two men, whether consensual or not, is an offence and carries a two year term of imprisonment, no mention is made of relations between women. Violations of human rights are always deserving of pressing attention and it is not necessary to wait for catastrophe before the issues are addressed. LGBT activists are doing quite a bit to bring these issues to attention. It will take time, work and a few lawsuits which challenge the status quo for there to be change in attitudes towards LGBTs.
Q: How might a general reader--someone not particularly knowledgeable about Caribbean law--benefit from reading your book?
The essays are constructed to be readable and I use contextual examples to help readers to understand the arguments. It is important that people understand that law exists to help regulate life and that they have a say in how this is done. The law is very technical much of the time, and these essays help to explain what the law says, what it means, and how it applies to important issues in everyday life. I expect that readers will become more aware of legal issues and the impact on their lives, and more knowledgeable about how the law works.
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Abiola Inniss blogs at Caribbeanlawbytes.blogspot.com and can be contacted there for further comment. You can also visit her Amazon author page for more information on her books.