The sources of law relating to gender-based violence in the English-speaking Caribbean are: (i) the constitution; (2) Acts of Parliament; (3) common law and (4) international law.
The Constitution
Each English-speaking Caribbean country has a written constitution. The constitution is the document that explains the distribution of power between the various organs of government – legislature, executive and judiciary. It sets out the fundamental rights and freedoms of citizens and other persons within the country’s jurisdiction. The constitution balances the rights of the individual against the democratic rights of the majority (Lord Millet in Pinder v R 61 WIR 13, [2003] 1 AC 620). It is the supreme law in Commonwealth Caribbean countries and all other laws must conform to it (Collymore v AG(1967) 12 WIR 5). The constitution has been described as representing or portraying a vision of the people’s future (Dow v Attorney General [1992] LRC (Const) 623, at 632, per Amissah JP (Botswana)).
The duty of the State to protect victims of gender-based violence is one which may be interpreted from the human rights provisions in the constitution. In Francois v Attorney General of Saint Lucia[1] the judge located this duty from the Bill of Rights of the Constitution. Where a state fails to take reasonable measures to protect women and girls from gender-based violence, that state is accountable for such failure by virtue of the positive obligation under the constitution, the supreme law.
Common law
This term ‘common law’ is used to mean many different things, but, for our purposes, it refers to the law developed by judges over time which you find in written decisions or cases. It is sometimes referred to as judge-made law or case law. The common law changes over time. For example, in an old case called Llwelyn v Llwelyn (1978) 27 W.I.R. 188¸a first instance judge stated that violence by the husband against his wife was part of the fair wear and tear of marriage. The Court of Appeal later rejected this view when it heard the matter.
Common law principles can also develop as judges interpret legislation or the Constitution. For example, some maintenance statutes in the Caribbean state that a spouse can apply for maintenance if the other spouse has ‘wilfully neglected to provide reasonable maintenance’. Over time, judges have interpreted this provision to mean that a spouse who has committed adultery is barred from seeking maintenance. This latter principle, developed through interpreting legislation, has become part of the judge-made rules dealing with maintenance.
Judicial precedent orders the system of case law. This means that every judge is required to take into account the decision of other judges in earliercases on the same point or issue. Those earlier decisions are described as precedents and depending on the ranking of the court that earlier decided the issue in the hierarchy of courts and the relevance of that earlier decision, the precedent may be binding or persuasive. Everywhere in the Commonwealth Caribbean, except Guyana Belize and Barbados, the Judicial Committee of the Privy Council is the highest court, next in the hierarchy is the Court of Appeal, below that the High Court or Supreme Court, and then the Magistrate’s Courts, including Family Courts where they exist.
Legislation
Statutes enacted by Parliament are the most important source of laws relating to gender – based violence in the Caribbean. These statutes are called Acts of Parliament and there are various stages in the passage of an Act of Parliament. Initially, there is generally research conducted by experts, and consultations with relevant stakeholders. Thereafter legislative drafters prepare a Draft Bill which is introduced in Parliament, whereupon it becomes a Bill. The Bill is debated in the House or Houses of Parliament. In the case of proposed family law legislation, there is usually broad public discussion as well because, whether it deals with divorce, domestic violence, the status of persons living together or some other issue, it often involves matters of controversy. After it is debated in Parliament, and usually after some amendments, the legislation must be passed or approved by an ordinary majority of the members of each House of Parliament and then assented to by the Head of State before it becomes an Act of Parliament.
Parliament is the most important law making body and it can always enact laws that overrule the common law or the judge made rules. The supreme law is however the Constitution and both the common law and legislation must conform to the Constitution. Throughout this website, you will be provided with information about Acts of Parliament in your country that deals with gender-based violence, such as the Domestic Violence Act, Sexual Offences Act or the Criminal Code. See for example, the table below (No.3.5) which highlights the legislation governing gender-based violence in the English-speaking Caribbean.
International Law
This is defined as the body of law that governs relations between or among states. This kind of law is very important for us in the Caribbean especially in the area of human rights. When a country ratifies or accedes to an international treaty or convention, that country has an obligation under international law to abide by its terms. However, the terms of the treaty do not become local law. In English-speaking Caribbean countries, they have to beincorporated or domesticated into local law, by an Act of Parliament before they can be enforced locally. Where the terms of a treaty have not been incorporated into local law, they have a limited role in the interpretation of the country’s domestic law. Where there is ambiguity in local law, judges have a duty to interpret that local law in a manner which is consistent with the country’s international obligation under the treaty (Boyce and Joseph v R(2004) 64 WIR 37, [2004] UKPC 32).
Table showing list of relevant legislation governing gender-based violence in the English-speaking Caribbean
COUNTRY
DOMESTIC VIOLENCE
SEXUAL VIOLENCE
SEXUAL HARASSMENT