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School of Law
Faculty of Humanities and Social Sciences
Phone number: +44 (0)1865 484912
Location: Headington Hill Hall, H1.07
Dr Derek O’Brien studied English and Philosophy at Leeds University before converting to law by studying for the Common Professional Examination and Solicitors Finals Examination at the College of Law. He qualified as a solicitor in 1985 and worked for a number of years as a solicitor in private practice before taking up a lecturing position at the University of Westminster in 1992. After a sabbatical at the Cayman Islands Law School he joined the Law Department at Oxford Brookes in 2002. His main research area is the constitutional law of the Commonwealth Caribbean and the constitutional implication of economic integration within this region. In addition he is interested in the operation of legal systems within small jurisdictions and is one of the founding members of the small jurisdictions project at Oxford Brookes.
The Oxford Handbook of Caribbean Constitutions offers a detailed and analytical view of the constitutions of the Caribbean region, examining the constitutional development of its diverse countries. The Handbook explains the features of the region's constitutions and examines themes emerging from the Caribbean's experience with constitutional interpretation and reform.
Beginning with a Foreword from the former President of the Caribbean Court of Justice and an Introduction by the lead editor, Richard Albert, the remainder of the book is divided into four parts. Part I, 'Caribbean Constitutions in the World', highlights what is distinctive about the constitutions of the Caribbean. Part II covers the constitutions of the Caribbean in detail, offering a rich analysis of the constitutional history, design, controversies, and future challenges in each country or group of countries. Each chapter in this section addresses topics such as the impact of key historical and political events on the constitutional landscape for the jurisdiction, a systematic account of the interaction between the legislature and the executive, the civil service, the electoral system, and the independence of the judiciary.
Part III addresses fundamental rights debates and developments in the region, including the death penalty and socio-economic rights. Finally, Part IV features critical reflections on the challenges and prospects for the region, including the work of the Caribbean Court of Justice and the future of constitutional reform.
This is the first book of its kind, bringing together in a single volume a comprehensive review of the constitutional development of the entire Caribbean region, from the Bahamas in the north to Guyana and Suriname in South America, and all the islands in between. While written in English, the book embraces the linguistic and cultural diversity of the region, and covers the Anglophone Caribbean as well as the Spanish-, French-, and Dutch-speaking Caribbean countries.
Freedom of movement has generally been regarded as one of the defining characteristics of a common market, of which the European Union is probably the best known example; expanding from a right of free movement for workers into a right of European ‘citizenship’. By contrast, the Caribbean Community and Common Market (CARICOM) originally made no provision for freedom of movement for its nationals and has only latterly introduced a limited right to free movement. It would be wrong, however, to infer that the right of free movement within CARICOM will evolve into a right of Caribbean ‘citizenship’ for two interconnected reasons. The first derives from the absence of any desire on the part of the Heads of Government of CARICOM to use freedom of movement as a stepping-stone towards a political union. The second is linked to the institutional and legal infrastructure underpinning CARICOM, which makes it difficult for a right of Caribbean citizenship to evolve without the support of the Heads of Government.
This article argues that the distinctive form of economic integration within the Commonwealth Caribbean can best be understood if account is taken of the imprint of colonial rule both upon relations between these former colonies and upon the political consciousness of the region's leaders. The legacy of colonial rule, including the abortive attempt at a West Indies Federation, resulted not only in a profound mistrust of any form of political union but also established the ideal of island self-government as the centre of the region's political culture. This is clearly manifest in the institutional structure and governance of the Caribbean Community and Common Market (CARICOM), which is based on the principles of intergovernmentalism. Notwithstanding some recent changes to that institutional structure, such as the introduction of the Caribbean Court of Justice, Member States remain firmly committed to the pursuit of regional integration through cooperation and association without any transfer of their sovereign decision-making powers. It will be argued, however, that this will not only make it increasingly difficult to achieve the economic objectives of CARICOM, but will also make it increasingly difficult to maintain the fragile sense of regional unity, originally forged in the crucible of colonial rule, in a post-colonial world as new alliances both within and without the region begin to emerge.
CARICOM, established under the Treaty of Chaguaramas, in 1973, has since its inception suffered from the repeated failure of member states to implement at the national level decisions taken by the Heads of Government at the regional level. The Caribbean Court of Justice (CCJ,) which has been vested with a compulsory and exclusive jurisdiction to interpret and apply the Revised Treaty of Chaguaramas, is intended to bridge this implementation gap. This has aroused expectations that the CCJ will play a role similar to that played by the ECJ in promoting legal integration. However, it is important to recognise that the ECJ has functioned within a particular jurisdictional framework and has benefited from the contribution of a diverse range of actors within the wider European legal community. It cannot, therefore, be assumed that the CCJ will be able to replicate the role played by the ECJ. The aim of this article is, accordingly, to review the jurisdictional framework within which the CCJ will function; to explore how this is likely to affect its relationship with the wider legal community within CARICOM; and, finally, to consider how this will impact upon legal integration within the region generally.
This chapter focuses on the differing approaches of the Judicial Committee of the Privy Council and the Caribbean Court of Justice towards the interpretation of the independence Constitutions of the Commonwealth Caribbean. Critiquing the lack of autochthony and the lack of meaningful public participation in the drafting of the region’s independence Constitutions, a number of influential Caribbean constitutional scholars have advocated a much more judicially creative approach to the interpretation of the region’s constitutions than the more conservative approach that has dominated the JCPC’s more recent jurisprudence. I call the approach advocated by these scholars the holistic approach because it treats the constitution as a whole as greater than the sum of its parts. The Caribbean Court of Justice in two recent judgments on appeals from Barbados and Guyana respectively has now adopted this approach. Notwithstanding its undoubted attraction in terms of resolving some of the deficiencies and flaws in the region’s independence Constitutions, it will be argued that the holistic approach risks undermining not only the whole interpretive process, but also the whole constitutional order.
When British public lawyers proclaim Magna Carta's influence in Britain's colonies around the world, they generally do so, even if obliquely, as a way of reconciling Britain's colonial past with its liberal-democratic and multicultural present. A narrative is thus constructed in which Magna Carta is presented as a symbol of a tradition of ‘English liberty’, which Englishmen took with them when they went abroad to settle these colonies and which endures to this day. English liberty, thus conceived, includes the right to personal liberty, the right to personal security, freedom from imprisonment without just cause, and the free use and enjoyment and disposal of all property. To this list could be added the right to representative government.
In this chapter, I wish to challenge the foregoing account of a tradition of English liberty, as symbolised by Magna Carta, which England bequeathed to its former colonies, insofar as it relates to the so-called ‘sugar colonies’ of the Commonwealth Caribbean. In particular, I wish to argue that the version of English liberty that was exported to the West Indies in the seventeenth and eighteenth centuries by the first English settlers is not adequate to the task of reconciling Britain's colonial past with modern conceptions of democracy or multiculturalism. More than this, I wish to argue that the legacy of English liberty in the Commonwealth Caribbean is no mere matter of historical interest, but continues to be deeply problematic because of its lingering influence on contemporary human rights jurisprudence in the region.
I will begin by linking the transmission of Magna Carta, and the other bundle of rights associated with the concept of English liberty, to the arrival of the first settlers in the region who were determined to claim English liberty as part of their ‘colonial birthright’ as Englishmen. I will proceed to examine how these settlers succeeded in claiming the rights and privileges associated with English liberty for themselves while at the same time denying these rights and privileges to the West Africans transported to the region to work as slaves on their sugar plantations, who were subject to a set of brutal and oppressive Slave Code laws.