Topic one: charActeristics and sources of law

What is law?
Generally, a set of rules which governs a society.
Governs the way members of a society Act towards one another.

Classification of law
Criminal Law
1. Regulates behavior perceived as being antisocial and dangerous to the public.
2. Criminal matter generally initiated by the police.
3. Prosecution must prove the guilt of the accused beyond all reasonable doubts.
4. Aim is the punish the criminal.
Civil Law
1. Gives legal rights the individuals to govern their formal and informal relationships with
each other.
2. Initiated by the person who claimed they have been wronged.
3. Claimant must prove the defendant is liable on a balance of probabilities.
4. Aim is to compensate the claimant for the wrong committed against them.

Sources of law
Where does the law come from?

 Customs
 legislation [primary and delegated legislation]
 judicial precedent/common-law
 the Constitution
 equity
Customs
 Arise out of the switch on Moore’s and prActices of a people.
 Exception to the common law.
 Rules of law which apply in a particular locality and form a body of law distinct from the
common law.
 Evolve over time to become law.
 Customs are not judicially recognized until they are settled by a judicial decision.
 The party who pleads a customary right must prove that it exists.
Test:
1. Antiquity: it must have existed from time immemorial (proof, as far back as living
memory goes)
2. Continuance: it must have existed continuously without interruption from the accepted
date without interruption.
3. Peaceable enjoyment: it must have existed peaceably by common consent or without
opposition.
4. Mandatory: it must be obligatory or mandatory.
5. Certainty and clarity: it must be certain and clear.
6. Consistency: one custom cannot contradict another.
7. Reasonableness: it cannot be unreasonable or unfair.

Legislation
legal rules which derives authority from Parliament/National Assembly.
What gives National Assembly this authority:
1. Belize Constitution section 68 – “subject to the provisions of this Constitution, the
National Assembly may make laws for the peace, order, and good government of
Belize.”
2. Separation of powers doctrine
a. Parliament is also given the power to confer or delegate such lawmaking power
on other authorities or functionaries.

Functions of legislation:
1. Revision – revision of substantive rules of the common law.
2. Consolidation of enActments – to clarify and simplify the status of an existing law.
3. Codification – to clarify and simplify the status of case law by legislation.
4. Collection of revenue or monetary control
5. Implementation of treaties – incorporation
6. Social legislation – to deal with the day-to-day administration of the country
7. Public policy
8. Response to pressure groups – to respond to pressure groups within the society.

Types of legislation:
1. Primary Legislation
2. Delegated Legislation

Primary Legislation
 Created by the legislative arm of the National Assembly
 Two types:
  Private Acts – proposed by a corporation, company, or private
organization.
 Public Acts – proposed by the people through its representatives in the
National Assembly.

Procedure to create an Act:

 Bill is proposed/introduced by a member of the National Assembly

 three readings in the Lower House
 consideration of bill by the Upper House
 Governor General’s assent
 published in the Gazette

Delegated Legislation
 Parliament delegates powers to subordinates or statutory bodies to create legal rules.
 Main types of delegated legislations are bylaws and regulations or orders.
Qualities Of Delegated Legislation:
 Speed and efficiency
 Technicality
 Flexibility
 Bulk

Common-Law
Doctrine Of Judicial Precedent
“where there are no applicable statutes on a particular issue, the judge must look to the case
law, that is, cases decided previously on the said issue, to find the relevant law upon which to
base his or her decision.”
Judicial precedent is the actual principle of law in the previously decided case.
Types of judicial precedents:
1. binding precedent
2. persuasive precedent

Binding Precedent
comes from the doctrine of binding judicial precedent, stare decisis.
Judge has a legal obligation to use the cited cases, not merely for guidance, but is bound to
apply the principles of law found in such case.
Case: London Tramcars Company Limited versus London County Council [1898], 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 if it was res
integra and could be re-argued.”
Binding precedents
advantages
1. legal certainty and precision
disadvantages
1. the excessive volume of reported cases makes the location of legal principles difficult
2. illogical, technical distinctions in the process of distinguishing precedent
3. rigid

Persuasive precedent

 Legal principles contained in judgments which merely offer guidance

 Judge will refer to these precedents, but they are not binding
 May also originate from courts lower in the hierarchy and the decisions of courts in other
jurisdictions
 In Commonwealth Caribbean, precedents from other Commonwealth Caribbean
jurisdictions and the uk are usually highly persuasive

Case: Boodram v AG and Another (1994) the Court of Appeal of Trinidad and Tobago, in being
persuaded by a decision from the Jamaican Court of Appeal on the question of pretrial publicity,
referred to Jamaica as a: “country which shares with us… A common history and jurisprudence
[and]… A strong common bond which we share with… The other islands of the region.”
The degree of persuasiveness of such a precedent depends on a variety of factors. These
include the jurisdiction from which it emanates, the status of the court which makes the decision,
and its date.

Caribbean Court of Justice

Court of Appeal
Supreme Court
Lower Courts (Magistrate Court and Family Court)

Each court is bound by the decision of the court above it.

Important concepts to the doctrine

 Ratio decidendi: principle, rule or ruling of law contained in the decision.
 Obiter dicta: Statements of law which are ‘by the way’.
 Per incuriam: Decisions made “through a lack of care’
  Per curiam: relevant to the issue at hand but not essential to determining the case

Constitution is a source of law

 A body of law containing the rules which determine the structure of the state and its
principal organs.
 Establishes the fundamental principles according to which the state is governed.
 Parent law by which all other laws are measured, or the supreme law of the land.
Section 2(1) of the Belize Constitution: “this Constitution is the supreme law of Belize and if any
other law is inconsistent with this Constitution that other law shall, to the extent of the
inconsistency, be void.”

 All other sources of law are measured against the Constitution

 governs the exercise of power or authority in the state.
Functions of the Constitution:
 Defines citizens’ rights and the shape of both the legal system and the political system
 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
 The fountain for procedural fairness, or due process of the law.
 Defines the territory of the state;
 Section 1 of the Belize constitution:
1. “Belize shall be a sovereign democratic state of central america in the Caribbean
region.
2. Belize comprises the land and sea areas defined in schedule one to this
constitution, which immediately before independence day constituted the colony
of belize.”
 Creates and establish the state institutions and the distribution of the functions of the
state;
 Grants authority to make laws;
 Belize constitution section 68 “subject to the provisions of this constitution, the National
Assembly may make laws for the peace, order and good government of Belize.”
 Gives legitimacy to the state through the existence of an independent body of law which
regulates the state
 Defines and protects fundamental human rights
Form and structure of the Constitution:
The preamble
Part One – The State And The Constitution
Part Two – Protection Of Fundamental Rights And Freedoms
Part Three – Citizenship
Part Four – The Governor General
Part Five – The Executive
 Part Six – The Legislature
Part Seven – The Judiciary
Part Eight – Public, Security, Judicial And Legal Services Commissions
Part Nine – Finance
Part 10 – Miscellaneous
Part 11 – Transitional Provisions
Part 12 – Repeal, Revocations, And Government Control Over Public Utilities

Saving Law Clauses

 attempt to preserve pre-independence law, often at the expense of human rights
provisions in the Constitution, with the result that the Constitution is viewed as merely
codifying existing rights and not creating new ones.

Belize Constitution section 21:

“nothing contained in any law in force immediately before Independence Day nor anything
done under the authority of any such law shall, for a period of five years after Independence
Day, be held to be inconsistent with or done in contravention of any of the provisions of this
part.”

Separation of powers
 Describes the separation of powers between different branches of government.
 No branch of government should infringe or interfere with the powers of another branch.
 Very important for the administration of justice.
 Ensures that the balance of power is maintained within each arm of the state.
 The legislative branch is responsible for enacting the laws of the state and appropriating
the money necessary to operate the government.
 The executive branch is responsible for implementing and administering the public policy
enacted and funded by the legislative branch.
 The judicial branch is responsible for interpreting the constitution and laws and applying
their interpretations of controversies brought before it.
Note: all the constitutions in the Commonwealth Caribbean contain provisions for
entrenchment, whereby certain of their provisions may not be altered except by a special
majority of parliament or, in some cases, a referendum.
e.g. Section 69 of the Belize Constitution

Equity is a source of law

 Equity involved so as to correct the often rigid and inflexible rules of common law, which
could prevent justice.
  A separate and distinct body of English law which grew up alongside, but not together
with, the common law
 Discretionary remedy
 Equity is manifested mainly in the areas of property and contract law

Statutory Interpretation And The Aids To Interpretation

What is statutory interpretation?
Statutory interpretation is the process by which courts interpret and apply legislation. It refers to
the key methods that are used by the courts to get the meaning of statute.
The grounding principle in the exercise of statutory interpretation is that it is parliament’s
intention, and not the will of judges which is to be given expression.
Factors which may cause doubt in the language used in statutes:
a) ellipsis – The drafter may refrain from using certain words which are regarded as
implied;
b) the drafter may use a broad term and leave it to the reader to ascertain to which
situation applies;
c) ambiguous words may be used deliberately.
d) Unforeseeable developments may change the original meaning of the statute;
e) there may be inadequate or inappropriate wording which could be the result of a printing
error or poor drafting
The rules or approaches are:
a. the literal rule;
b. the golden rule;
c. the mischief rule;
d. the rule of purposive construction
e. the policy approach; and
f. the unified contextual approach.
The interpretation clause and the interpretation Act
first thing to look at in interpreting statutes
Case: The Public Counsel Versus The Fair Trading Commission.
“The approach I adopt in interpreting the Act is that where a word or term is not defined within
the specific piece of legislation it is obligatory to first look within the Interpretation Act for
assistance.”
The literal rule
 Follow the literal rule or natural meaning of the words in the statute.
 It is the primary rule of statutory interpretation. Only if the literal approach produces
difficulty to the other rules of statutory interpretation are employed
Case: Brown versus Brown et al
The Supreme Court of the Bahamas, contemplating S33 of the Matrimonial Causes Act, found
that, taken in its entirety, it contemplated that orders could be made for the benefit of children of
the marriage who were past 18 years but remain dependent adults and that if parliament had
intended that no order for maintenance could be made unless the application was made before
the child’s 18th birthday, it would have said so in clear and explicit language.
The Golden Rule
 If the statute is ambiguous, the court will apply the least ridiculous meaning in order to
avoid an absurd result.
 Rule of common sense
 The rule allows the court to alter the structure of a sentence, give unusual meanings to
particular words, alter their collation, or reject them altogether.

The mischief rule

 Looks at what defect, wrong or mischief parliament was trying to correct when it enacted
the particular statute.
 Four things to be considered:
o What was the status of the law before the Act was passed?
o What was a defect or mischief for which the law had not provided?
o What remedy did parliament propose to cure the defect?
o The reason of the remedy
 The judge’s duty is to interpret the legislation so as to suppress the
mischief and advance the remedy and to add force and life to the cure
and remedy, according to the true intent of the makers of the Act.
The unified contextual approach
 Any disputed words must always be interpreted within the context of the statute as a
whole.
 Case: Ag Versus Prince Ernest Augustus Of Hanover
 Context defined to include not only other acting provisions of the same statute, but its
preamble, the existing state of the law other statutes in pari materia and the mischief
which can be other legitimate means, discern what the statute was intended to remedy.
 The defect of the statute is also to be considered as part of the context.

The purposive approach

 Requires the court to interpret the statute by looking beyond its words to determine the
general purpose behind it
 Emphasize that words are to be read with context and assumes that context may
change.
 Appears to be the most accepted approach to statutory interpretation today.
The policy approach
Where there is an ambiguity within the statute, judges will choose the interpretation that best
suits their view or policy.
In addition to the six approaches mentioned above the courts can apply certain presumptions
when dealing with ambiguous statute.
The main presumptions are:
 1. Presumption against changes in common law,
2. Presumption against ousting the jurisdiction of the courts
3. The presumption against altering existing rights.
4. The presumption that persons should not be penalized except under clear law.
5. The presumption against the retroactive operation of statutes.
6. Presumption the ordinary statutes do not bind or affect the crown.
7. The presumption toward fairness and justice
8. The presumption of constitutionality.
9. The presumption that the later statute repeals the former.
10. The presumption where the provisions within the statute conflict.
Aids to interpretation
Materials the judge may consult when he seeks to give meaning to the words in the statute.
Internal aids – found in the second itself
External aids – found outside of the statute
Internal Aids

 the long title

 the preamble
 the short title
 headings
 marginal or side notes
 interpretation clause
 punctuation
External Aids
 interpretation Act
 law commission reports
 parliamentary debates
 dictionaries
 judicial precedents

Reception Of Law
 The doctrine of reception of laws the process by which the law of one
territory/environment is intentionally exported into another
 In the Caribbean our legal systems are created out of our colonial experiences. The laws
of our colonizers were transplanted into the region. This is the reason why the legal
systems in the Caribbean mainly belong to the common law legal tradition with some
historical connections to the civil law traditions
 Some scholars argue that it can be said that rather than receiving english common law it
was imposed on the commonwealth caribbean.
 The reason for the reception or imposition of law in the caribbean was mainly to maintain
social order
  Since the adoption of reception of laws closely tied to the Caribbean’s history, it is
important to make a distinction between settled or conquered territories. Whether the
territory was settled or conquered determines how the English law was imposed on
them.
 Settled territory – a territory where there were no previous inhabitants for example
Antigua, Anguilla, Bahamas, St. Kitts, Barbados, and Montserrat.

 Conquered territory – a territory where there were previous inhabitants but was
subsequently transferred to another conquering power after battle. For example Belize,
Dominica, St. Lucia, Guyana, Trinidad and Tobago and St. Vincent.

The English common law was introduced into the Commonwealth Caribbean by two methods:
a. With respect to settled colonies, the colonists carried with them only so much of the
English laws as was applicable to their own situation and the condition of the infant
colony. The date of the establishment of the colony was the date of reception.
b. For conquered territories, the colonists retain the existing legal system only in so far as it
was not repugnant to natural justice. The existing system was retained until such time as
other arrangements could be made for English law to be introduced.

Two types of English lower imposed on the Caribbean:

1. English Common Law,
2. English Statute Law
3.
This imposition of English common law was achieved via two main methods:
a. The use of the incorporation clause
b. by way of proclamation

Reception of English statutory law was imposed in three main ways:

a. By express extension by the UK Parliament of particular statutes to apply generally to all
territories or to a named territory.
b. Incorporation by reference in the colonial legislation.
c. Incorporation by repetition: this was the most common method