1. MARCO TEÓRICO
1.4. Epidemiologia de las lesiones en el fútbol
While, in theory, the legal systems of the Commonwealth Caribbean may adhere to the strict theory on the doctrine of judicial precedent, the doctrine may not always operate in the way in which it was intended. This is due to the peculiarities in the region’s legal systems which relate both to structure and outlook.
A complex hierarchical structure of courts
An important practical difficulty with respect to the operation of the doctrine of precedent in the region relates to the concept of the hierarchy of courts. The emphasis placed on a hierarchical structure of courts assumes that there is an identifiable and uncontested line of authority existing between the courts in the hier-archy. In the Commonwealth Caribbean, the nature of this relationship of authority is not always clear.
Although we do not have a problem with a multiplicity of courts within the
138 Chapter 7 (‘The Written Constitution as a Legal Source’) and Chapter 14 (‘The Rules of Statutory Interpretation’).
139 Lord Wright ‘Precedents’ 8 CLJ 118 at 135.
140 Above, fn 87.
hierarchy, there are other problems. There is a fairly simple structure within the hier-archy, but a complex system of courts when one considers the region as a whole. For example, there is a psychological nexus between all courts in the region because of the fact that, with the exception of Guyana, and more recently, Barbados, all the jurisdic-tions share the Privy Council as their final Court of Appeal.141 This nexus is reinforced by political, sociological and economic similarities and a notion, however ill defined, of a single CARICOM community and identity. While this exerts an unifying influ-ence on the legal system, it creates a confusion in the operation of precedent, as discussed below.
In addition, due to the maze of courts existing and previously existing under colonialism in the region, it is not easy to reconcile the status of decisions emanating from courts in the hierarchy. The CCJ will not automatically resolve these difficulties.
Consequently, the following discussion will still be pertinent.
Thus, the question of which courts are to bind which in the hierarchy of courts does not evoke a simple response in the Commonwealth Caribbean. For example, are modern courts bound by pre-independence courts? Further, how should we place decisions emanating from existing sub-regional courts and previous regional courts, such as the Eastern Caribbean Supreme Court142 or the defunct Federal Supreme Court respectively?
The complexity of the above questions is increased when one considers the inadequate system of law reporting in the region.
Pre-independence courts
The status of pre-independence courts presents the least difficulty. Most writers and judges agree that these, even if from the same jurisdiction, are persuasive rather than binding.143 This approach was followed in Hanover Agencies v Income Tax Commis-sion,144 which is still the defining authority. The rationale of this rule is based on the different constitutional status of the two courts and the principle of ‘judicial com-ity’.145 The Hanover case was decided during the initial period after independence, when Commonwealth Caribbean judges were perhaps as yet unaccustomed to their new found freedom. It discussed the status of the newly constituted independence Court of Appeal of Jamaica. In particular, the court considered whether the decisions of the pre-independence Court of Appeal were binding on the new Court of Appeal.
It was stated therein:
I am satisfied that this court is not bound by the decisions of the former Court of Appeal. This court was established by s 103 of the Constitution . . . as a superior court of record, and although by s 8 of the Judicature (Appellate Jurisdiction) Law 1962, the jurisdiction and powers of the former Court of Appeal were vested in this court, the
141 When the full reach of the appellate jurisdiction of the CCJ is assumed, a similar situation will ensue.
142 Organisation of the Eastern Caribbean States. These share a subregional court, discussed in Chapter 15 (‘The Court System of the Commonwealth Caribbean’).
143 See, eg, Burgess, A, ‘Judicial precedent in the West Indies’ (1978) 7 Anglo-Am LR 113.
144 (1964) 7 WIR 300.
145 Ibid. The concept of ‘judicial comity’ refers to the respect which courts of equal status accord each other. It was used, for example, in the Cayman Islands case of Re BCCI [1994–95] CILR 56.
court is separate and distinct . . . This court, however, will always regard the decisions of the former Court of Appeal with the greatest of respect and as being of strong persuasive authority.146
Again, in Glen v Sampson,147 the now independent Court of Appeal of Guyana said:
‘there is no alternative but for us to overrule former judgments of the British Caribbean Court of Appeal, and refuse to follow even those of the Privy Council, if they conflict with later decisions of our Court of Appeal.’148
Decisions from other Caribbean Courts of Appeal
With regard to post-independence courts, it is well established that decisions of a Court of Appeal in a West Indian jurisdiction other than its own are of persuasive and not binding authority. This was confirmed in the case of Aziz Ahamad v Raghubar.149 Indeed, Burgess suggests that the ‘overwhelming weight of the authorities . . . seem to show that these precedents are of a persuasive nature only’.150
Sub-regional courts
The status of decisions from sub-regional courts, such as the OECS Court of Appeal, may be more problematic. These may be treated as either a single court sitting in several jurisdictions, or as a separate Court of Appeal for each jurisdiction. If one takes the latter approach, then, consistent with the above rule on courts from other jurisdictions, decisions from the court which do not come from the particular jurisdic-tion should merely be persuasive. In contrast, in the former scenario the decisions should be treated as binding.
The OECS court differs from the Privy Council in that it was deliberately and formally constituted as a regional court. This provides good argument that decisions should be treated as binding even on courts in another OECS jurisdiction.
Some help may be gleaned from dicta which discussed similar subregional courts which are now inoperative. In Wigley v Bellot,151 for example, the Court of Appeal of the Windward and Leeward Islands, then a sub-regional court, felt that it was bound, in a St Kitts case, to follow a precedent from St Vincent, enunciated by the same court.
The court in this case relied on the dicta in Young v Bristol Aeroplane152 on the doctrine of stare decisis, that the Court of Appeal must follow its own decisions.
In practice, the status of such decisions do not seem to present difficulty. The OECS Court of Appeal simply treats them as binding. The question is perhaps only of concern for academic clarity.
146 (1964) 7 WIR 300, pp 306–07, per Waddington JA.
147 (1972) 19 WIR 237.
148 Ibid, 244, per Crane JA. Note that Guyana had already abolished appeals to the Privy Council.
149 (1967) 12 WIR 352.
150 Op cit, Burgess, fn 143, p 113. He justifies this assertion on the basis of cases such as White v Morris (1965) 12 WIR 421 and Ahamad v Ragubar, (1967) 12 WIR 352.
151 (1965) 9 WIR 193.
152 Above, fn 49.