From the way it looks, there seemed to have no problem regarding the application of the doctrine of the precedent in so far that the case in point bears similar circumstances. Besides, the doctrine of the precedent had been utilized in various countries particularly in Europe and America.
However, the Caribbean Court of Justice which implements the doctrine of precedent represents a legal system that does not reflect the particular values and needs of the Caribbean communities in the sense that under the present legal system of the Caribbean community, wherever a court or tribunal considers a decision on a question pertaining to the interpretation or the application of revised treaty, referral requirement is automatic and the court or the tribunal is oblige under article 214 of the Revised Treaty of Chaguaramas to refer the case to Caribbean Court of Justice (CCJ).
The implication of this is that CCJ will formulate decision on the case which maybe based on the previous decision or the doctrine of the precedent, to be respected and followed by the tribunal or the court as under the principle of stare decisis or the doctrine of the precedent, within the judicial system, all courts are bound by decisions made on the same matter by superior courts within that self-same system. The irony is that according to Duke E.
Pollard (2004) the system regarding the imposition by the Caribbean Court of Justice of the doctrine of judicial precedent appears to have “some room for conflicting judgments of national courts or tribunals on the interpretation and the application of the revised treaty” (p. 96). Delano Franklyn (2005) pointed out that the present form of CCJ “threatens to undermine fundamental human rights of Caribbean nationals” (p. 277). The inability of the doctrine of the Precedent to the social values and need of the Caribbean society
The debate on the issue of the scope of responsibility of CCJ implied that the Caribbean legal system does not reflect the social values and need of the society as according to those who are pushing for the CCJ as a trade court, the CCJ does not address matters of justice. Pollard stressed that the doctrine of the judicial precedent should serve as a guide to lead towards justice and truth and it should not to be interpreted as “a potent force for petrifaction of law. The application of the doctrine of precedent in the Caribbean legal system however, has made some obvious glitch.
H. R. Lim A Po in an address to a Symposium on the Caribbean Commonwealth entitled “Bridging the Divide:”The Interface between the Civil Law system and the Common Law system, with Specific reference to the role of the Caribbean Court of Justice pointed out that the application of the doctrine of the precedent in the common law courts made the court decide not only arguments, but are also expected to provide precedence as to how similar case could be settled in the future.
The problem with this application according to H. R. Lim A Po is that the rule of binding precedents is applied also in the interpretation of statutes which may not be on the same legal justification with the civil law courts. In this case, the application of the doctrine of the precedents might not reflect the social value and need of the Caribbean Community as most of the statutes were not formulated in the context of the Caribbean Community but in the context of the English law.
Thus, according to Antoine, despite of the attempts to fashion new identities since they became independent, the legal expression of the Caribbean community still ‘remains largely British. ’ The doctrine of precedent in its basic intent inhibits change. While the law should serve as a mirror of the society, which means that the law must change and that it should always be contextual to reflect the needs of the changing times and changing conditions of the society, the doctrine of the precedent restrain this change.
According to Albert K. Fiadjoe (1999), society is not static and “social conditions demand change. ” (p. 200). Fiadjoe pointed out that the economic conditions in young Caribbean Commonwealth countries “require a fresh look at the laws which govern trade and commerce. ” (p. 200). The Caribbean legal system functions through the Caribbean Court of justice which has two forms of jurisdiction: appellate and original jurisdiction.
Lim A Po stated that the Caribbean Court serves as international tribunal in the interpretation and application of the treaty of Chaguaramas by applying rules of international law in exercising original jurisdiction. In this system, the court exercised exclusive jurisdiction and is not allowed to bring in other findings or evidences on the grounds of stillness or weakness in the law. The court simply cannot avoid making judgment on the grounds stated, and employing the doctrine of the precedent the court judgment shall comprise a legally binding precedent.