Thursday, July 26, 2007

Stare decisis: formalism, pragmatism and habeas corpus

The problem of whether to depart from a recent decision of the same court was the subject of Gibson v USA (The Bahamas) [2007] UKPC 52 (23 July 2007). A 7 judge Board decided, 4 – 3, that it would overrule Cartwright v Superintendent of HM Prison [2004] 1 WLR 902 (PC). Cartwright was itself a split decision.

Gibson concerned an enactment that gave a right of appeal against a refusal of habeas corpus, but did not mention any right of appeal against a grant of habeas corpus. All 7 members of the Board held that the decision not to order extradition and to grant habeas corpus, against which the USA could not appeal, was wrong. Indeed, the Privy Council judges who dissented in the result of this appeal described that decision of the judge of the Supreme Court of the Bahamas (the Court below the Court of Appeal) as “extraordinary pedantry” (para 32). The majority agreed, calling it “an astonishing conclusion”. This phrase repeated that used by the Board in Cartwright, which was an appeal by a co-accused of the present appellant Gibson, concerning the same ruling.

The problem was that, pursuant to Cartwright, the co-accused had been extradited to Florida to face the charge of conspiracy to import cocaine and cannabis, because Cartwright had held that an appeal against the grant of habeas corpus had properly been heard by the Bahamas Court of Appeal. The reasoning of the majority in Cartwright was unanimously held in Gibson to have been wrong. The minority in Gibson would, apparently (para 40), not have gone so far as to call it “very wrong”, but it is plain they accepted that it was wrong, because the majority judgment notes (para 14): “each of the seven members of the Board as presently constituted is of the clear view that the minority opinion of the Board in Cartwright was correct and that the Court of Appeal had had no jurisdiction to hear the USA's appeal in these cases.”

Nevertheless, Gibson was split over whether to follow the earlier decision, even though it was wrong. The minority noted that overturning a previous decision required some special reason, and put its reasons for upholding Cartwright as follows (para 40):

“What special reason exists in this case? The decision in Cartwright is not impeding the proper development of the law. On the contrary, it has been, so to speak, adopted by the legislature of The Bahamas which has amended the 1994 Act to put the matter beyond doubt by giving a right of appeal against a decision to grant habeas corpus as well as to refuse it. It is speculation as to whether other jurisdictions have the same statutory provisions. If there are, and nothing has been done to alter the law since Cartwright, one could infer that the local legislature is satisfied with the decision. Nor has the case led to results which are unjust or contrary to public policy. On the contrary, the decision allowed the correction of a plain miscarriage of justice and supported public policy in allowing The Bahamas to comply with its international obligations. But the majority proposes to perpetuate injustice and a breach of the extradition treaty simply on the grounds that they think that Cartwright was wrong, or, despite the views of three members of the Board, very wrong. In our opinion this would encourage attempts to revisit cases decided by a narrow majority, which are likely to be the most difficult. We therefore do not think that this is a proper case in which to exercise the power to depart from precedent and would dismiss the appeal.”

On the other hand, the majority in Gibson took a formalist approach to jurisdiction (para 27 - 28):

“There can be no getting away from the fact that this appellant is wrongly imprisoned through the misunderstanding or misapplication of the law by the Court of Appeal (and by the Board in Cartwright) with regard to rights of appeal under the Bahamian legislation then in force.

"Of course the view could be taken that the appellant had faced overwhelmingly strong evidence justifying (indeed requiring) his extradition to the USA on the gravest possible charges of drug dealing, that his habeas corpus challenge to committal ought certainly to have failed, and that the erroneous decision in Cartwright has fortuitously enabled the Bahamian Court of Appeal to correct a serious miscarriage of justice. Their Lordships, however, reject that view. The Board's task is to ensure justice according to law. According to law the Court of Appeal had no jurisdiction to entertain the USA's appeal, however meritorious that appeal was. So much is plain. The Board should not now shrink from saying so. The appeal must accordingly be allowed.”

This contrast between the minority’s pragmatism and the majority’s formalism reminds me of an observation by Aharon Barak in “The Judge in a Democracy” (2006), p 159:

“The guiding principle should be this: it is appropriate to deviate from a previous precedent if the new precedent’s contribution to the bridging of the gap between law and society and to the protection of the constitution and its values, after setting off the damage caused by the change, is greater than the contribution of the previous precedent to the realization of those goals.”

While Gibson will remain controversial, it contains useful dicta on habeas corpus and stare decisis. Its quirkiness reveals a reversal of the usual positions taken by formalists and pragmatists: here, the formalist majority overruled the precedent, whereas the pragmatist minority would have followed it. Precedent and stare decisis play a stronger role in the English legal tradition than they do in legal systems based on Roman law (see Thomas, "The Judicial Process" (2005), Chapter 6). As Thomas points out (eg at p 161) precedent preserves the bedrock principles propounded in the law, but wide application of stare decisis can become an "imprisonment of reason" if precedent is allowed to perpetuate "the false presumption that there is an impersonal law." Gibson is, however, a "bedrock" case in that its concern is with the jurisdiction of an appellate court. Jurisdiction is a condition precedent to justice according to law.

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