Maintaining the rule of law

DIANA MAHABIR-WYATT

The stability of a society depends first on the existence and the acceptance of the rule of law.

Even a cursory analysis of the political and socio-economic status of Caribbean cultures reveals gaps in the structures we have established to ensure that stability.

None is perfect, because none of the founders were perfect, but they were guided by their understanding of the history of law and the needs of human society.

One of the most important, albeit admittedly still imperfect, is the Caribbean Court of Justice (CCJ).

For some countries in the region (unfortunately not TT), it has replaced the Judicial Committee of the Privy Council as a final court, and makes those awards deeply relevant within the hermeneutics of the Caribbean, not those of the UK, which were founded in a different history and culture (still the one the TT courts traditionally draw from).

Where society rests on the concept of all humans being granted equality before the law in complex, intersecting and evolving legislation, this is seminal.

In a recent decision by the CCJ, Nicholson v Nicholson (2024) CCJ 1 (AJ) BZ, the demonstrable value of that approach to the observance of human rights should be a mandatory reading in every industrial relations tribunal and labour court in the West Indies and every academic curriculum that references human rights.

It is gratifying that in its analysis the CCJ took into account an examination of its procedures, as all courts should but seldom do, including "the reality of unconscious bias."

It said, "No human is free from unconscious bias, judicial officers included. The unconscious is understood to be the course of how our human brain works."

It records our life experiences from the time we begin to activate our senses. Before we have words to label them, we are aware in our awakening consciousness of what we experience, sometimes even in utero, and those experiences influence our lives thereafter.

Gender bias, therefore, in relation to our own gender, appears very early and must be deliberately and consciously guarded against in adults charged with ensuring equality before the law, disposing of the rights of beneficiaries of power and property and equality of familial and domestic arrangements.

This does not mean that everyone must be given equal divisions of family property or corporate status, which would be impossible as well as impractical, but in that disposition by those who have the power to do so, hermeneutics must be taken into consideration, acknowledging that established ownership of property or power and the establishment of the desire of its disposal will be respected.

In Nicholson v Nicholson, which involved a married man with two adult children (male and female), his share of property owned jointly by him and his wife, with both their written consents, was left in his will jointly to his wife and his daughter.

Before the complexities of property law had been carried out, and the daughter’s title to the land registered, the mother, influenced by whatever force of persuasion by her son, had her own and her daughter’s name removed from the will and placed her son’s name there instead. She subsequently disavowed any memory of signing permission for that change, so the court used the term "purported" to bear her signature. It didn’t look much like her signature, and the judges did not believe she would have willingly divested herself of all her property rights; but, perhaps out of family shame, she did not charge the son with fraud.

Not surprisingly, the legality of overriding the father’s expressed and legally recorded decision was challenged in the court of that country, at which time, in court, the mother apologised, saying she had made a mistake.

She testified in court that in her grief over her husband’s death, she had no recollection of ever having signed any document removing her daughter’s right to that property, and before the court, declared that that portion of the land belonged to her daughter, according to the wishes of both herself and her deceased husband.

Whether the resultant case should have even been accepted by the court for consideration is a question that is subject to judicial analysis. Could the father’s desires, written years previously and made clear to the family in his will, be overridden by cultural or historical factors? In the socio-economic structure of the country, would only the inheritance of male offspring be acceptable, thus making it reasonable for a case disinheriting a daughter, contrary to an adult property owner’s wishes? Should a tradition of both children inheriting equally have replaced the father’s declared wishes? Should a tradition of male inheritance have replaced the registered but not yet implemented legal bureaucratic processes that gave ownership to the daughter?

The question arises, how did that case even get to the Court of Appeal? Is there an unconscious gender bias still lurking in judicial panels that can overturn the wishes of a property owner going back to Blackstone? Four of the five judges on the panel were male.

The question of unconscious judicial bias is not a forbidden one to ask. It comes up not irregularly in the bitterness of abusive domestic-violence cases, when, for the safety of herself and her children, a woman has to flee the home she lives in because, it is argued, "a man’s home is his castle" – and no one questions in court where a woman’s castle is.

Ultimately, for reasons too lengthy to go into here, the court, with one dissenting voice still resting in colonial legal precedents and traditions, returned the property to the daughter, as her father and mother originally had wished.

But only after almost five years of litigation, 37 case references and a close examination of the legislation of several jurisdictions.

The CCJ genuinely overcame the traditional biases allowed by the colonial jurisprudence by going deeply into the monumental hermeneutics, including all possible relevant influences: traditional, cultural, ancestral, present legal records and potential future environmental references – which would be unlikely to happen in a Privy Council hearing, and is testimony to the quality and relevance to the Caribbean of that court.