Judicial Policy Construction by Apex Courts | The Rt. Hon. Lord Reed | MonaLaw Distinguished Lecture

“Exploring the Non-Black Letter Law Impact of Socio-Economic, Cultural, Historical, International Messaging and Other Factors in Decision-Making“
Decision-making by the judiciary at any level requires the interpretation and application of law. In the decision-making process, the tribunal, comprising one or more judges, will have as their natural point of departure what the letter of the law provides. The letter of the law is, however, not the only factor that contributes to the making of a decision by any judge anywhere in the world. Accordingly, judges, whether this is readily acknowledged or not, will, as they consider matters coming before them, engage a process of policy construction in their decision-making, which process is ordinarily informed by socio-economic, cultural, historical, international messaging and other factors. In the Common Law system, which applies in Jamaica and across the Commonwealth Caribbean, there is a hierarchy of courts, with an apex, in our regional context being either the Judicial Committee of the Privy Council (“JCPC”) or the Caribbean Court of Justice (“CCJ”), where the decision-making buck stops. In short, the system operates on the basis that precedents established in higher courts bind lower courts. These precedents include the application of black letter law and judicially considered to be relevant policy.
This reasoning session follows a distinguished lecture delivered by Lord Reed, President of the JCPC. It will focus on the extent to which apex courts, in particular, apply policy considerations in their decision-making, with obvious implications for other courts in their hierarchy. What happens in court is, of course, reflective, or in substance prescriptive even, of how the society develops. This reality does not always sink, as it should, in the consciousness of a society; however, when and where it does, persons come to recognise or at least begin to understand that the court is perhaps the most important arm of government, certainly insofar as the rights of any citizen is concerned. In short, legal norms shape behaviours and courts are able to, and in a very significant way, influence how cultural or other norms remain staid or shift, however far, fast or gradual, to become more evolutionary and progressive.
As shifts are enabled by courts under their judicial policy construction function, societies change. Whether the change is for the better or not will always be a matter of contention. It must, however, be accepted, without contrarian views, that getting to a better understanding of how courts rely on judicial policy construction is in the public interest. It is anticipated that the reasoning session will clarify some issues that were before it bothersome, while also contributing to the establishment of a better platform from which debate about a final court of appeal for Jamaica or any other country in the Caribbean region can be further engaged.
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