> CAPE Law Unit 1: Caribbean Legal Systems, Principles of Public Law, Criminal Law Lecture Notes & Study Guide v.2 Antonn Brown, BA.; (Hons.), LLB., MSc. Canadian Education Specialist Suite 19, Brumalia Town Centre ‘Mandeville, Jamaica (876) 961 5561 jamaica2canada@gmail.com | Www JAMAICAZCANADA.com ©2010(CHAPTER ONE: CARIBBEAN LEGAL SYSTEMS This chapter seeks to describe: ‘The definition of law; Different concepts of law, such as: natural law and positive law; ‘The nature of law; ‘The origin of law; ‘The role and function of law; “The relationship between law and morality; The sources of law, such as: ‘The Constitution; Legislation and Judicial Interpretation of Legislation; ‘Common Law; Equity; and The role and function of law; ition of morality and ethics; ction between the law and ethics; and The Interdependence of law and morality. i. Definition of Law Poplar conceptions or dintons of aw ince ‘The legislative pronouncement of rules to mandate, pro situation or circumstances; 2. The total of those rules of conduct put in force by established authority, [such as legislative, Judicial or by local customs); 3. ‘An institution which is essential to the soctal nature of man and without which he would be a very different creature; and 4. The enforceable body of rules that govern society ‘or guide conduct or behaviour in a Rules ate normative in that they establish a standard or benchmark of how one ought to conduct himself, ‘There is a penalty for breaching the law and failing to comply with an obligation or prohibited action, li The Role and Function of Law ‘The role and function of law is to maintain and regulate: © Order, + Structure, © Control, + Peace, + Subiliy, © Unity, and Cohesion in society. ‘The nature and characteristics of law must take into account: Its role in society and the purposes served; the reasons why law is obeyed; its relationship with morality; and its relationship with justice. The function of law may be seen as allowing individuals to survive in a community. Selfrestraint is, necessary for protection from others over the competition of scarce resources. Therefore, laws are Page 2 of 120 ‘Antonn Brown, B.A. (Hons.), LL.B. MSé. https JAMAICA2ZCANADA.com ‘Study & Work in Canada to Earn Citizenship.established governing self-restraint to protect property and persons, which are subject to penalties for non-conformance. As such, the law is a minimum standard or benchmark of behaviour. iii_Morality, Religion, and Ethics ‘The morality and ethics of a society are concerned with disapproval with what is deemed to constitute unacceptable conduct, It entails BELIEVS and VALUES shared by society or a section of society regarding the perception of right or acceptable conduct and wrong or inacceptable conduct. Morality determines right from wrong, Morals are beliefS and values which are shared by a society or subculture. It is based on predominant and socially-acceptable attitudes and behaviour. Religion isthe recognition of some higher unseen power as having control of one’s destiny, and thus entitled to obedience, reverence and. ‘worship. It consists of established rules based on animism or belief in the supernatural jons which convey notions of morality, including: ‘The education system, Peer groups, ‘The mass media, ‘The legal system, and © Religion, ‘©The hegemony of the government. iv. Distinction between Law and Morality ‘The term ‘law’ refers to a system of rules or guidelines, These rules are made for the purpose of guiding, the conduct of individuals in a particular jurisdiction whether itis a community, state, nation, or the sea. Laws must require or forbid specific acts or conducts. Laws must be established or promulgated by a recognized authority, such as a state or government in the form of: Legislation or statutes; Common law; ‘Custom or convention; or Treaty. Laws impose an obligation for obedience by individuals within ther jurisdiction. Laws must be subject to the legitimate enforcement by the authority for infractions, such as the police, military, cours, and other State or government agencies. Laws may be dynamic, rather than static, which means thet laws may change over time due to human experiences and change in values. Morality consists of core values and beliefs that guide conducts and render certain thoughts or actions as, right or wrong. Laws are distinguished from rules of morality because: Mandatory 1. Laws are prescribed by a binding authority; 2. Morality and ethics are not binding; Enforcement 3. Infractions of laws are subject to legitimate enforcement, sanctions or consequences; 4. Infractions of morals are enforced informally through informal social pressure, such as: disapproval of family, friends and the community, loss of status or stigmatization, rather than legitimaze sanctions; Interdependence of Law and Morality ‘There is a very strong interconnected relationship between the law, morals and religion. It is a complex relationship. The law influences, as well as reflects morality. However, sometimes there is no connection between law and morality such as filling out prescribed forms or the established side ofthe road to drive on Some laws do not address morality such as good manners, Some laws can be considered immoral. ‘Criminal law upholds and defines what is right or wrong based on principles of morality [and religion]. Examples include the legal issues of: Prostitution, homosexuality, abortion, age of consent, rape, marital rape, sterilization of the mentally and physically challenged, the defence of provocation for women with Page 3 of 120 Antonn Brown, B.A. (Hons.), LL.B., M.Sc. hitp://.JAMAICA2CANADA.com ‘Study & Work in Canada to Ear Citizenship.violent partners, pedophiles, and the discipline of children. However, the law changes in some cases a step head of morality, and in other times a step behind changes in morality ‘A more specific historical example is women being ostracized by the church for fornication, Sex before marriage was considered morally wrong. The law as result denied the recognition of children born out of ‘wedlock. IN Guyana the Bastardy Act was created. However, over time the moral stigma decreased due to the number of children being born ut of wedlock. As s result, the Act was repealed. Law and morals juxtapose to uphold desired socal behavior to achieve order and structure. For example, natural law theorists argue that law should reflect morality or law should be inspired by God, ‘The law exists to enforce existing morality. However, the law also changes as morality in society changes. Religion has also strongly influenced the content and substance of law. Religious rules were often given statutory force and validity. For example, the religious notion that one should love one's neighbour as ‘one loves one's self is reflected in tort aw - the neighbour principle of negligence law in which one may not unreasonable cause damage to one's neighbour, who is defined as anyone who is foreseeably or likely to be affected by one’s actions. ‘The law upholds or influences morality. The criminal law imposes sanetions as to warrant loss of fieedom or fines or other punishment for the commission of offences considered sufficiently serious. The Jaw attempts to deter the offender and other members of society from wrongful actions, The law also attempts to punish and rehabilitate the offender. It adopts terminology suggesting the wrongdoing and. censure, such as guilt, offence, prosecution, sentence and regulation of conduct which by any standards should be wrong or anti-social. However, they are not absolute. For example, murder is considered wrong, ‘whereas killing in selfdefence or for one’s country is accepted or even honourable, The argument is even ‘more complex with issues such asthe death penalty abortion or euthanasia, In SHAW v DPP [1962], Shaw had published a Ladies Directory with he aim of helping prostitutes to ply their trade. The magazine contained names, addresses and telephone number of prostitutes with photographs and nude female figures. There were also details revealing that the prostitutes would be available not only for ordinary sexval intercourse, but also that they would be willing to engage in various perverse practices, Shaw received fees form the prostitutes, as well as profit from the magazine. He was convicted of: conspiring with others to corrupt public morals; living wholly or in part on the eaming of prostitution; and publishing an obscene publication. Shaw appealed. The issue was whether the offence of ‘conspiracy to corrupt public moral was an indictable misdemeanor at common law. Lord Diplock said: “Shaw's act of publishing advertisements for prostitutes soliciting fornication tended to corrupt publi rmorals. Therefore, Shaw’s agreement to do that act was a crime at common law. ‘The Court of Appeal ‘upheld a conviction against Shaw on the charge of ‘conspiring to corrupt public morals. In Rv KNULLER [1972] the appellants were directors of a company which published @ fortnightly ‘magazine. On an inside page under a column headed “Males” advertisements were inserts inviting readers ‘to meet the advertisers for the purpose of homosexual practices. The Appellants were convicted on counts ‘of conspiracy to corrupt public moral and conspiracy to outrage public decency. The legal issues were Whether an agreement by two or more person to insert advertisements in a magazine amounted to “conspiracy to corrupt public morals or the offence of conspiracy to outrage public decency since it was on sale in public places and was read individually at different places by an umber of people, The House of Lords held that while the offence of ‘conspiracy to outrage public decency” was unknown to law, the appellants by their actions were nevertheless guilty of ‘conspiracy to corrupt public morals 2-Concepts of Law Conceps of law entail the theories or paradigms of law. The two [2] main theoretical paradigms ae: 1, Natural Law and 2. Positive Law 4. Natural law [Fuller] Page 4 of 120 Antonn Brown, B.A. (Hons.), LL.B. M.Se. hitp://JAMAICA2CANADA.com Study & Work in Canada to Eam Citizenship.[Natural law is a system of rules and principles for the guidance of human conduct which, independently of ‘enacted law or of the systems peculiar to any one people, is considered universal. It addresses the rational intelligence of man and would be found to grow out of and conform to the mental and moral aspects of ‘man. This paradigm suggests that there are objective moral values which can justify positive law. Natural law is viewed as a higher system of law to which positive law [or man-made law] should conform. Originally, this was seen as being based on God-given objective moral values. It is now seen as based on ‘reason, rather than theology. Positive law that is contrary to the law of nature is NOT seen as legitimate law. If is instead seen as unjust, unreasonable, or repugnant to the law. Natural law is believed to be a rational foundation for moral judgment. ‘Natural law is directly shaped by religious, moral, or ethical considerations. It is concemed with what should or ought to exist and measure man-made law against a divine or higher natural law. Individuals are seen to be justified in disobeying the law that is deemed to be immoral. Natural law is perceived to be the law that is shaped by 2 divine being and guides proper moral behaviour of those subject to law. ‘The political realty is that laws always refer to some social or moral goal or policy objective. Therefore, Jaw and morality are mutually inclusive. (However, although law and morality are fused, it is acknowledged that some morals are not codified in law, and some legal formalities do not deal with morality issues.) Therefore, a rule cannot be a law, unless it has moral justification. This justification ‘makes individuals morally obliged to obey laws ONLY if they are moral. Natural law is seen as universal, immutable and superior above ll other rues. To illustrate the influence of natural law pri 1. Charters of Rights and Freedoms; 2. International Law, such as The Universal Declaration of Human Rights by the United Nation, ‘which incorporates natural law as a central component ofthe international postive law; and 3. The development of Human Rights Law. iples, one need only contemplate: Artick 2 Is Jamaica ready for a Charter of Rights? ‘Sunday, August 06, 2006 Dear Editor, | write in reference to the Joint Select Committee's deliberations regarding the Charter of Rights Bill, including the submissions made by Lawyers Christian Fellowship, the National AIDS Committee, and the Jamaica AIDS Support for Life. ‘A Charter of Rights normally guarantees rights and freedoms to individuals that are subject only to reasonable limits prescribed by law in a democratic society. Examples of such rights and freedoms include, but are not limited to: Freedom of conscience and religion; Freedom of expression or speech: Freedom of association; “The right to life and liberty; ‘The right against cruel and unusual punishment; ‘The right to the presumption of innocence in a court of law; and Equality before and under the law with equal protection and benefit of the law without unjust discrimination. Page $ of 120 Antonn Brown, B.A. (Hons.), LL.B., M.Sc. hitp:!JAMAICA2CANADA.com ‘Study & Work in Canada to Earn Citizenship.‘The purpose of a Charter is based on the presupposition that certain rights and freedoms are intrinsically entrenched in a democracy. For a democracy to have meaning, such rights must have guaranteed protection, despite oppasition. This allows for even the most basic conceptions about society to be challenged. ‘As such, Parliament and the courts are to be guided by certain values and principles essential toa free and democratic society which embody, inter alia: Respect for the inherent dignity of the human person; ‘commitment to social justice and equality; and accommodation of a wide variety of beliefs, behaviour, practices and identities. ‘The pith and substance of a Charter is to protect interests which often affect minorities that are often disenfranchised, subordinated and discriminated against, rather than protecting the popular views, trends, and perspectives of the majority whose de facto position does not necessitate de jure protection, The ‘purpose is to accommodate dissenting views and practices, so long as deleterious effects do not outweigh ‘the benefits of freedom and democracy for al. ‘Ultimately, a Charter sets the parameters within which the competition between individual rights and those of society must be resolved. However, it is admonished that utilising the hegemony of a Charter to enshrine ‘codes of morality and ethics of the political, economic or social elite, or the pluralistic majority is diametrically opposed to, and antithesis ofthe purpose of a Charter bring the legal tool into disrepute. Accordingly, 1 question whether Jamaica is ready for a Charter of Rights at this particular stage of its democratic history, based on the undue consideration by the Joint Select Committee regarding submissions that appear grossly inconsistent with the purposes of a Charter in particular and international conventions of ‘uman rights in general Antonn Brown Manchester brown.ant@gmail.com li, Positive Law [Hart] Hartecogizs the min components of postin, namely Law as a command enforced by coercion; 2 tawand morality are essentially separate; 3. Analysis of legal concepts is distinct from historical and sociological studies and moral {judgments cannot be proven by rational argument; and 4, “A legal system is based on logie so that correct decisions can be deduced from legal rules. Positive law is secular or man-made law. This paradigm views valid laws as the command or imposed system of sanetions by a Sovereign. The sovereign is one who is given obedience by members of society, but obeys no one. Therefore, there is an obligation or duty to act based on the commands given. However, the desire to act is always based on subjection to penalties. ‘There is no limitation to the power of a sovereign. The extemal aspect deals with sanctions, while the internal aspect deals with attitudes. In other words, for all practical purposes, the law is merely the declaration of the decision-makers. The law deals with the reality, rather than the ideal situation, This is interpreted as justifying the separation of law and morality. ‘The law should NOT be based on moral criteria. It should be analyzed separately from the moral and social context, Analyzing the merit of laws is seen as a fruitless exercise It is suggested that no matter how bad the law is, or the system by which it is made, if the recognized procedures for law making have been complied with, the law should be obeyed. However, itis shaped by Page 6 of 120 ‘Antonn Brown, B.A. (Hons), LL.B. MSc. https JAMAICA2CANADA.com ‘Study & Work in Canada to Ear Citizenship.specifically-approved or accepted procedures for law-making. Laws CANNOT be disobeyed by citizens as long as it remains in force. The sovereign must change unjust laws. Separated at birth, U.K. twins got married Jan 11, 2008 12:56 PM THOMAS WAGNER ‘THE ASSOCIATED PRESS LONDON - Twins who were separated at birth got married a legislator told the Britain's House of Lords. they were brother and sister, ‘A court annulled the British couple's union after they discovered their true relationship, Lord David Alton said. ‘The legislator provided few other details about the case when he mentioned it during a five-hour debate about a bill that would change regulations about human embryology. He said he had been told about the ‘unusual case by a judge, who he did not name. “Twas recently involved in a conversation with a igh Court judge who was telling me of a case he had dealt with,” Alton said during the Dec. 10 debate. "It involved the normal birth of twins who were separated at birth and adopted by separate parents. "They were never told that they were 1s. They met later in life and felt an inevitable attraction, and the judge had to deal with the consequences of the marriage that they entered into and all the issues of their ‘The case was first reported Friday in London's Evening Standard. The High Courts Family Division declined to discuss or confirm Alton's account about the twins. ‘Alton, an independent legislator who works at LiverpooT's John Motes University, said in a telephone interview Friday that the twins’ inadvertent marriage raises the wider issue of the importance of strengthening the rights of children to know the identities of their biologial parents, including kids who ‘were bom through in vitro fertilization. Under British law, only a mother has to be named on a birth certificate. Such certificates also are not required to identify births that result from IVF orto identify the sperm donor. In addition, British law does not require parents to ever tell children that they were the result of donated sperm, Alton believes this should be changed. “"Bveryone has a right to knowledge about their lineage, genealogy and identity. And if they don't, then it will lead to cases of incest,” he sad. Page 7 of 120 Anton Brown, B.A. (Hons), LLB., M.Sc. ‘hnp://JAMAICA2CANADA.com ‘Study & Work in Canada to Earn Citizenship.‘Alton said he favours an amendment to the Human Fertility and Embryology bill ~ which is still being. debated in the House of Lords ~ that would require birth certificates of children born from donated sperm. to say that and to identify the genetic father. Referring to the twins! case, he sai If you start trying to conceal someone's identity, sooner or later the truth will come out. And if you don't know you are biologically related to someone, you may become attracted to them and tragedies like this may occur.” Should the twins be arrested for incest based on positive laws? 3 Nature of Law ‘According to Wollhelm, the nature of aw has long perplexed legal and political philosophers. This results from the view that it is a broad and vague concept ‘The nature of law may be found in the definition of law, structure in society by molding behaviour. . characterized by its rules that seek order and ‘The purpose of law is to establish: 1. Order; Control; Maintenance; 2 3 4, 5. 6. Resolve disputes ‘based on the conduct, behaviour, actions and prohibited actions of citizens. However, law also has distinct funetions such as: Administrative/regulatory; Conferral of social benefits; and Private arrangements, ‘Therefore, the law mandates or prohibits action through procedures and attaches a penalty for non- conformance. Given the social nature of humans, and that people operate in groups and institutions and fenter into relationships with others for the fulfillment of needs and wants, we need standards and guides to behaviour, ie. what is socially acceptable and the consequences of participating in socially unacceptable behaviour. Sociological Analysis ‘There are several groups such as: women, children, Rastafarians, Indigenous Peoples, the poor and minority ethnic groups who are discriminated against via societal institutions including the law. These groups ate marginalized by the legal system via statutes that disadvantage the group. Examples include legislation against the use of marijuana affecting Rastafurians or legislation outlawing abortion affecting ‘women. The law cannot be divorced form the proper social context. Pound Pound stated that law makers are engaged in social engineering and thatthe law identified and protected various interests by way of rights and duties. Law provides a means of securing interests. Interests on the same level must be weighted to ensure that as many as possible are satisfied. Interests on different level CANNOT be weighted against one another. Interests include: 1. ‘Those of the Individual, such as personal, domestic and property interests; Page 8 of 120 Anton Brown, B.A. (Hons.), LL.B., M.Sc. hitp:/.JAMAICA2CANADA.com Study & Work in Canada to Eam Citizenship.2. Social Interests, including general morals, social institutions, security and order; 3. The Public Interest ofthe State as the guardian of Social Interests. Durkheim Durkheim argued that society was held together by social solidarity, The law had a central role to play in taining order during the transformation from: ‘+ Simple solidarity systems based on similarity of roles and values; 10 © Complex systems based on division of labour and secularism, in which the law replaces religion as the means of socialization and solidarity. Weber Weber defined Taw in terms of an order imposed by those with recognized authority and one in which ‘eoercion would be applied where the law was broken. Marx Marx thought law was a tool used by the economic elite to control the masses for class domination and ‘oppression. The economic infrastructure controls the superstructure of society, which includes all societal institutions such as: laws, religion, the mass media, education system, politics, the family, the criminal justice system, and the military. The institutions control the minds and bodies of individuals in society Law was necessary in a capitalist society, but would NOT be necessary in communism with a classless society. Article: Abortion issue not merely one of morality Sunday, January 20, 2008 Dear Editor, I write in reference to the recent call by the Abortion Policy Review Advisory Group to repeal current laws prohibiting abortion in order to allow conditions under which medical termination of pregnancy would be lawful. I have observed that in this developing nation, many observers collapse the complexity of the issue to one of morality, ie, whether it is right to kill a human being (during the early stages of life). Ironically, the argument that is often overlooked here Is that the decision to terminate a pregnancy is based on conscience, which is supposed to be protected by the Constitution. Accordingly, freedom of conscience for an individual must be paramount to that of the state, It is a decision that deeply reflects the way the woman thinks about herself and her relationship to others and to society. By prohibiting abortion, the government unjustly endorses one view regarding abortion at the expense of another. It is denying freedom of conscience of women who would like to have control over their person. It is suggested that the foetus should be thought of as part of the mother, rather than a separate self-sustaining human being, due to the fact that the foetus and mother share circulatory, respiratory and digestive systems. Accordingly, the debate regarding abortion is about whether the government should be allowed to infringe on Page 9 of 120 ‘Antonn Brown, B.A. (Hons.), LL http: JAMAICA2CANADA.com Study & Work in Canada to Ear:the right of a woman to control her body, rather than the right of a mother to “murder her baby". 1 do not believe that a woman should have an unfettered right to choose whether an abortion is appropriate. However, I also do not believe that it is the legitimate business of the government to dictate what a woman can and cannot do with her ‘own body as a matter of principle. The notion that women are merely human incubators that, once pregnant, are forced by the government to see the pregnancy through seems archaic. The profound physiological trauma, psychological stress of an unwanted pregnancy, as well as trans-generational economic and social consequences of the state-imposed denial of a woman's right to choose the best course of action for herself under the circumstances interferes with the physical and bodily integrity of women, Therefore, this violation of the liberty and security of the person are other constitutional rights undermined by prohibiting abortions. It is only reasonable to acknowledge that security of the person must include a right of access to medical treatment without fear of criminal sanction. In conclusion, It should be observed that the right to liberty should guarantee a degree of personal autonomy over important decisions intimately affecting one's private life. Liberty in a democracy does not require the state to approve the personal decisions of women. However, it does require the state to at least respect such decisions, or at least the constitution rights of women. As such, I agree that the existing laws should be repealed. Antonn Brown Hatfield, Manchester brown.ant@gmail.com 1.4 The Origin of Law ‘The origin of Commonwealth Caribbean Law is based on RECEPTION after: 1, - The unification of English law after the Norman Conquest; 2. Slavery; and 3. Colonization, ‘The Norman Conquest ‘The Norman Conquest in 11" C, A.D. established 2 unified legal system in England. William, the Conqueror gained the English throne in 1066 and established a centralized government which standardized the law. This created a common law for the country. The laws were once fragmented and ‘the King had litle centralized control over the whole country. However, for the first time, different areas of the country were NOT governed by different systems of law. Throughout the early history of England, various invaders of England settled and established different sets of laws. Reception ‘The English brought common law and equity as they colonized Caribbean teritories. Equity and common law were brought to the Caribbean through colonization in a process known @s reception, European law displaced existing laws. Europeans imposed their laws in the Caribbean on indigenous peoples or natives, slaves and indentured servants. The territories or colonies received the law and even gave them statutory Page 10 of 120 ‘Antonn Brown, B.A. (Hons.), LLB., M.Sc, hitp:/TAMAICA2CANADA.com, ‘Study & Work in Canada to Ear Citizenship.\@/or constitutional force. Caribbean territories were ruled European countries. different periods by different European nation such as Spain, France, and England had different influence at different times. Examples include: ‘© Guyana’s rule by the French, Dutch and English in successive times; ‘* Trinidad’s rule by the Spanish, and then the English; ‘© St Lucia’s rule by the French, and then the English; and ‘* Jamaica's rule by the Spanish, and then the English, L.7 Sources of Law Sources of law refers to the where the law is found and the origin of laws, such as the Constitution, Treaties, statutes and customs. Sources of law also refer to the authoritative or reliable works, records, and documents to look for an understanding of what constitutes the law. Scholarly or academic textbooks may also assist in applying the rule of procedure, evidence or substantive law. ‘The sources of law for documentation and promulgation will be examined for: I. The Constitution; Legislation and dial Interpretation of Legisation: 3. Common Law; 4. Equity 5S. Precedent and 6. Custom. i The Constitution ‘The constitution isthe highest or supreme source of law for any jurisdiction the State, usually in the form of a written, legally-binding document. Any law that Constitution shall to the extent of the inconsistency be mull and void. In general, constitutional law is the branch of public law of a nation dealing with the distribution of political power and govermental branches, authorities and functions. It deats with ‘The basis of which system of government is created; ‘The relationship between the government and citizens; ‘The method established for which public affairs are to be administered: ‘The framework for the government system; and The limits or restition of goverament sovereignty. More special, te Consituon outlines: ‘The Fundamental rights forthe protection of citizens. 2 Eases andreas the ree [3] ams of government, namely the legis, exceutive and judiciary, with their respective jurisdictions, functions, and powers; 3, The establishment of Service Commissions; and 4, The establishment ofthe office, role and function of the Ombudsman, ‘The Constitution defines the three types of governmental power and the relationship between each of them and their relationship with the citizen. Constitutional rules are also found in conventions, ie. unwritten rules by which those subject to them feel obliged to be bound. ‘The government may enact any type of law under its jurisdiction, However, the government is limited by the constitutional rights and freedoms that citizens enjoy, which may not be infringed upon without formal and legal justification, such as freedom of thought, belief, opinion, and expression. Any statute or Jaw that is inconsistent with fundamental constitutional rights and freedoms would be subject to judicial review and legal scrutiny to justify any reasonable limitation placed on the constitutional right or freedom or the offending legislation, law or provision. Without justification, laws will be deemed unconstitutional and without force and effect. Page 11 of 120 Antonn Brown, B.A. (Hons.), LL.B., M.Sc. hitp:/ JAMAICA2CANADA.com, Study & Work in Canada to Bam Citizenship.‘The Jamaica Constitution came into force with the Jamaica Independence Act, 1962 of the U.K. Parliament, which gave Jamaica political independence. Ten Chapters ‘The Jamaica Constitution, 1962 contains ten chapters dealing with: 1. Interpretation and Effect; 2. Citizenship; 3. Fundamental Rights and Freedoms; 4. The Governor Genera; 5. Parliament; 6. Executive Powers; 7. The Judication; 8. Finance; and 9. The Public Service; and 10, Miscellaneous. Interpretation and effect (Chapter 1) Chapter 1 explains the meaning of terms and ideas expressed in the Constitution and makes clear that: 1. The Constitution is the supreme law of Jamaica; 2. All other laws are secondary to it and depend upon it; and 3. Ifany other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void" (Section 2). Citizenship (Chapter 2) Under Chapter 2, persons born in Jamaica and persons bor outside Jamaica of Jamaican parents have an automatic right to Jamaican citizenship. ‘Women who have married Jamaican men and former citizens of the United Kingdom and Colonies who hhad become naturalized or registered as British subjects in Jamaica can also register as Jamaican citizens. Parliament is given power in the Constitution (under Section 11) to make further provision for the ‘acquisition, deprivation and renunciation of citizenship; and the Governor-General (under Section 8) is given power to deprive oftheir Jamaican citizenship those Jamaican citizens who acquire citizenship or the rights of citizenship of another country. B ter ‘Chapter 3 provides that every person is entitled to certain fundamental rights and freedoms, regardless of: Race, Place of origin, Political opinions, Colour, Creed, or 6 Sex ‘The fundamental rights and freedoms include: 1. ‘Therightto life; ‘The righ to personal liberty; Freedom of movement; Freedom from inhuman treatment; Enjoyment of property; Freedom of conscience; Freedom of association; Respect for private and family life; and Freedom from discrimination, een enaen Page 12 of 120 Antonn Brown, B.A. (Hons), LL.B., M.S¢. bttp:// JAMAICA2CANADA.com ‘Study & Work in Canada to Barn Citizenship.‘The enjoyment of these rights and freedom is “subject to respect forthe rights and freedoms of others and for the public interest”. In the public interest, individual rights may be also suspended in a manner prescribed by the Constitution (e.g, in the event of war, calamity of threat of subversion). ‘Any person who believes that his rights are being violated or threatened may apply to the Supreme Court (or on appeal to the Court of Appeal) for enforcement of rights and for redress. ‘Governor-General (Chapter 4) Under Chapter 4, the Governor-General is given authority, as the representative of Her Majesty the Queen, to: 1. Name the date of a general election, 2. Appoint: a. Ministers and assign them responsibilities; Parliamentary Secretaries, ‘The Attomey General, Senators, Privy Councilors, ‘The Chief Justice, ‘The President of the Court of Appeal, The Director of Public Prosecutions, and Members of the Services Commissions, © a £ & bh i. In most cases the Governor-General acts in accordance with: ‘The advice of the Prime Minister; Consultation with the Leader of the Opposition; ‘The recommendation of The Services Commissions; and ‘The Privy Couneil [as appropriate under the circumstances). In only a few matters the Governor-General may act in his own discretion. The Governor-General’ formal Assent is also required for Bills of Parliament to become law. Parliament (Chapter 5) Under Chapter 5, Parliament is given power to make laws for the peace, order and good government of Jamaica Parliament consists of 1. Her Majesty the Queen, represented by the Governor-General, and 2. Two @ legislative Houses, « nominated Senate and an elected House of Representatives. ‘The Senate consists of 21 members, appointed by the Governor-General, 13 nominated by the Prime Minister and eight nominated by the Leader of Opposition. ‘The Governor-General opens Parliament once a year with the "The Speech* and gives the Royal Assent for each Bill, passed by the two Houses, to become iaw. A Bill may be introduced by any member of either House. (However, in practice most Bills are introduced in the House of Representatives). Money Bills can only be introduced in the House of Representatives. ‘The House of Representatives can end the term of office of a Government if'a majority, of all its members, supports a motion of no confidence. ‘Any Jamaican citizen of 21 years or over or any Commonwealth citizen 21 years or over living in Jamaica for atleast one year, can become a member of either House of Parliament. Executive powers (Chapter 6) Page 13 of 120 Antonn Brown, B.A. (Hons.), LL.B., M.Sc. Intpd!JAMAICA2CANADA com ‘Study & Work in Canada to Ear Citizenship.‘Under Chapter 6, the Governor-General is required to appoint as Prime Minister the member of the House ‘of Representatives who is best able to “command the support” of a majority ofthe members of that House. ‘The Prime Minister selects the Ministers, Ministers of State and Parliamentary Secretaries to be appointed by the Governor-General. He forms the Cabinet and presides over it. ‘The Prime Minister advises the Queen on the appointment of the Governor-General. He has the power to advise the Governor-General to dissolve Parliament and to name the date of a general election at any time within the five years of the life of a Parliament. Important acts by the Governor-General are carried out on the advice of or after consultation with, the Prime Minister; and for some measures the Leader of the Opposition is also consulted. ‘The Cabinet is responsible for the general direction and control of government. It consists of the Prime Minister and not less than 11 other Ministers (there is no maximum). All Cabinet Ministers must be ‘members of one of the two Houses of Parliament but not more than four from Senate. Each Cabinet Minister is assigned one or more areas of responsiblity (e.g. “agriculture”, "health" or housing") sometimes called portfolios. ‘The Cabinet es a whole must account to the people through Parliament for its actions. Each Cabinet Minister is also individually responsible for the subject’subjects assigned to him/her. Cabinet Ministers are assisted by Ministers of Senate and Parliamentary Secretaries. However, the day-to- day work of each Ministry is administered and supervised by a senior civil servant called a Permanent ‘Secretary is assisted by the staff of the Ministry who are civil servants. Other important executives are Attorney General, a political appointee chosen by the Prime Minister, who is legal adviser to the Government; and the Director of Public Prosecution, who is responsible for starting, continuing and discontinuing criminal prosecutions. The Director of Public Prosecutions is a ‘qualified attomey-at-law. In exercising his functions, he is not subject to the direction or control of any person or authority. He cannot be removed from office except on the recommendation of a special judicial tribunal. His salary is constitutionally safeguarded. ‘The Constitution secures the office of Leader of the Opposition. The Leader of the Opposition, appointed by the Governor-General, is the member of the House of Representatives who commands the support of a ‘majority of those members who do not support the Government. The Leader of the Opposition must be ‘consulted on a number of important matters such as appointments of the Chief Justice, the President of the Court of Appeal and members of the Services Commissions. The Opposition Leader nominates eight ofthe 21 Senators. ‘The Judicature (Chapter 7) ‘A network of courts, ranging from Petty sessions of the Court of Appeal, and even beyond, to the Judicial Committee of the Privy Council in London, is responsible for the administration of justice in Jamaica ‘The head of the judicial is the Chief Justice whose office, like that of all judges, is made secure by the Constitution. ‘The judges' salaries and conditions of service are secured by the Constitution and judges can be removed from office on the advice of the Judicial Committee of the Privy Council in London. ‘Any petson dissatisfied with a judgment by any of the courts (except Petty Sessions) can appeal to the ‘Court of Appeal. Pretty Sessions are heard by judge in chambers. Page 14 of 120 Antonn Brown, B.A. (Hons.), LL-B., M.Sc. bitp://JAMAICA2CANADA.com ‘Study & Work in Canada to Earn Citizenship.‘The Supreme Court administers both criminal and civil law. Its criminal cases are handled by Circuit Courts after committal by Resident Magistrates, The Supreme Court deals with civil actions involving negligence, breach of contract, slander, trespass, divorce, equity, guardianship of infanis, and estates of Iunatics, I also issues writs and summonses. ‘There are special courts desl ‘with revenues, gun crimes, and traffic offenses and family matters. Judges are appointed by the Govemor-General on the advice of a Judicial Service Commission, which includes among its members the Chief Justice, who is its Chairman, and the President of the Court of ‘Appeal. The Governor-General on the advice of the Prime Minister appoints the Chief Justice and the President of the Court of Appeal, after consultation with the Leader of the Opposition. Finance (Chapter 8) Under chapter 8, except where a law provides otherwise, all revenues of Jamaica are paid into a "Consolidated Fund” and then become very difficult to get out. The Constitution specifies how money may bbe moved out of the Consolidated Fund, “The Minister of Finance must prepare a budget showing estimates of revenue and expenditure for each “financial year” (April 1-March 31). The estimates are tabled in the House of Representatives and must be debated and approved by the House, Proposed expenditure isin the form of an "Appropriation Bill”, which When passed becomes the Appropriation Act. The Minister of Finance may then issue "warrants" permitting payments out of the Consolidated Fund. Before the Appropriation Act is passed the House of Representatives may allow expenditure of a carry-on allowance known as a "vote on account". The Minister of Finance ean authorize payment for unexpected expenditure through a Contingencies Fund. He ‘may also get approval from the House of Representatives for additional expenditure during the financial yearby introducing Supplementary Estimates. ‘The Constitution provides for the appointment of an Auditor General who is responsible for auditing the accounts of all Government departments except his own. The audit of the Auditor General's department is carried out by the Minister of Finance. The Auditor General is subject to the direction and control of no ‘other person or authority, His salary is secured by the Constitution and he can be removed from office only ‘on the recommendation of a specially constituted judicial inquiry. Public Servi ‘There are a Public Service Commission and a Police Service Commission, provided under Chapter 9 of the Constitution, with the responsibility for: ‘* The appointment, . sal; and © Disciplinary control of civil servants and police officers. ‘The Governor-General makes appointments to the Services Commissions on the recommendation of the Prime Minister after consultation with the Leader of the Opposition. The GG has the power to make appointments to public offices and to remove and to exercise disciplinary control over persons holding or acting in any such offices acting on the advice of the Public Service Commission. The Public Service Commission is composed of three to five members appointed by the Governor-General under Section 125 (2) of the Constitution of Jamaica. The Public Service Commission is guided by the Publie Service Regulations, which are administered by the Office of the Services Commission. ‘The Office of the Services Commission is an administrative body made up of public officers. Is role is to: 1. Administer the Public Service Regulations on behalf of the Public Service Commission; and 2, Provide documentary support for the recommendations, which the Commission sends to the ‘Governor-General. age 15 of 120 ‘Antonn Brown, B.A. (Hons), LL-B., M.Sc. ‘ttps/JAMAICA2CANADA.com ‘Study & Work in Canada to Earn Citizenship.Before the Governor-General acts in accordance with the advice of the Public Service Commission that any public officer should be removed or that any penalty should be imposed on him by way of disciplinary ‘control, he shall inform the officer of that advice and give the officer the opportunity to apply to the Privy Council. The Privy Council shall consider the case and shall advise the Governor-General what action should be taken in respect of the officer, and the Governor-General shall then actin aceordance with such advice. Permanent Secretaries ‘Notwithstanding the control exercised by the Services Commissions in general, Permanent Secretaries and. the Financial Secretary are appointed by the Governor-General acting on the recommendations of the Public Service Commission after consultation with the Prime Minister. A Permanent Secretary may be transferred by the Governor-General on the advice of the Prime Minister, and power to appoint ‘Ambassadors, High Commissioners or other principal representatives abroad is vested in the Governor- General acting on the advice of the Prime Minister, provided that where the appointment involves a civil servant the Prime Minister must consult with the Public Service Commission. Amendment of the Constitution ‘The Constitution lays down the procedure for its own amendment (Seetions 49 and 50), In some cases, here no great basie principal is involved, the Constitution may be amended by a relatively simple process =a majority ofa the members of both Houses. ‘There have already been four amendments by this simple procedure resulting in: © Modification of the provision dealing with categories of appointments to the Judicial Service ‘Commission, as a result of fusion of the legal profession; Lowering of the voting age from 21 to 18 years; Increases in number of Senators who could be Ministers without portfolio and in Parliamentary Secretaries who could be appointed from the Senate, and ‘+ Eligibility of Ministers from Senate to hold portfolio responsibilities (subject to a maximum of four Ministers from the Senate). In the case of provisions considered to involve important basic principles, the provisions are “entrenched! ‘or, inthe more extreme cases, "specially entrenched". The entrenched provisions include those relating to: ‘© Fundamental rights and freedoms; ‘The establishment and security of offices such as those of judges; ‘The Auditor General; ‘The Director of Public Prosecutions and of the Services Commissions; and ‘The arrangements for control of public finance. ‘These “entrenched” provisions may be amended by the votes of two-thirds of all the Members of each of the two Houses of Parliament, after the amendment Bill has gone through especially long review periods in the House of Representatives. ‘The "specially entrenched” provisions include those relating to: ‘The establishment and constitution Parliament; Dissolution of Parliament and holding of general elections; ‘The executive authority of the Queen; and ‘The dominance of the Constitution itself overall other laws. Specially entrenched provisions may be amended by the same procedure as “entrenched” provisions but ‘additionally, for their amendment, the support ofthe majority of those voting in a national referendum held ‘a specified period after passage of the amendment Bill is required. An entrenched or specially entrenched provision may be amended without the necessary majority in the Senate. This is possible in ceases where the amendment gets the required approval in the House of Representatives twice in one Page 16 of 120 ‘Anton Brown, B.A. (Hons.), LL.B., MSc. http: JAMAICA2CANADA.com ‘Study & Work in Canada to Earn Citizenshisession, is rejected by the Senate within stipulated periods, and gets the required support in a national referendum the required support then being three-fifths of those voting to approve amendment of a specially entrenched provision. ‘The Office of the Services Commission The Office of the Services Commissions (OSC), which is headed by the Chief Personnel Officer, is the administrative secretariat for five Services Commissions: 1 The Public Service Commission 2 The Police Service Commission 3 The Judicial Service Commission 4 The Municipal Service Commission 5 The Parish Couneils Service Commission ‘The Public Service Commission Under the Constitution of Jamaica (1962) Section 125, the Governor General has the authority to appoint, remove and to exereise disciplinary control over employees in the Central Civil Service. The Public Service ‘Commission, - which is also enshrined in the Constitution, - assists the Governor General in exercising this authority by providing advice and making recommendations in relation to appointments, separation, disciplinary and training matters ‘The Public Service Commission is appointed by the Governor General, who acts on the recommendation of the Prime Minister after consultation with the Leader of the Opposition. The Commission should consist of ‘no more than five (5) members, and not less than three (3), including a nominee from the Jamaica Civil Service Association, the largest staff association in the Civil Service. The Police Service Commission ‘The Police Service Commission is also enshrined in the Constitution of Jamaica, under Section 129 (1). ‘This Commission is also appointed by the Governor General, who acts on the recommendation of the Prime Minister, after consultation with the Leader of the Opposition. The Police Service Commission makes recommendations to the Governor General in respect to the appointment and discipline of police personnel from the rank of inspectors upwards, and retirements, selection for study leave, and appeals for the entire police force. ‘The Judicial Service Commission Section 111 of the Constitution of Jamaica provides forthe appointment of a Judicial Service Commis ‘The members of this Commission are: + The Chief Justice ~ who is the Chairman + The President of the Court of Appeal + The Chairman of the Public Service Commission; “Three (3) other members who are appointed in a similar manner as members of the Public Service ‘Commission. Two (2) of these members of nominees of the Jamaica Bar Association. The role of the Judicial Service Commission, is to make recommendations in relation to the appointment, removal and exercise of disciplinary control over Resident Magistrates, Judge of the Traffic Court, Registrar of the ‘Supreme Court, Registrar of the Court of Appeal, Puisine Judges, Judges, and Judges of the Court of Appeal. the process of making or enacting laws, which may be classified as being ether: 1. Primary legislation; or 2. Secondary [or subsidi | legislation. Page 17 of 120 Antonn Brown, B.A. (Hons), LL-B., M.Sc. hups/,JAMAICA2CANADA.com ‘Study & Work in Canada to Earn Citizenship.Primary Legislation Primary legislation is made by Parliament. Primary legislation may also be referred to as statutes. A statute is a formal written enactment of a legislative body. It is an act of the legislature declaring, ‘commanding, or prohibiting conduct. ‘The statute is deemed to be the most important source of law. A bill becomes a law after the formal process of both Houses of Parliament and receipt of royal assent. The doctrine of sovereignty of Parliament ensures that no other body can pass law in conflict with that of Parliament- courts per se, ‘cannot question the validity of Acts of Parliament. No court will be able to declare a domestic law invalid. They may only be found to be incompatible with the constitution. It is the obligation of Parliament to amend the offending legislation. In other words, Parliament is able to make or unmake any laws provided that itis in accordance with constitutional limitations. Parliament has the authority to repeal ‘or modify any principle set out in the case law or judicial statutory interpretations. Secondary Legislation Statutes can only be enacted pursuant to legislative competence. Parliament is NOT equipped to deal with every matter. In many cases it does NOT have the requisite expertise. Therefore, Parliament enacts governing or enabling legislation, As such, the power to make statutory instruments is delegated to a inferior body. The inferior body may enact subordinate legislation based on enabling statute. In other ‘words, the inferior body must act only in accordance with the authority granting it power, passed by the sovereign legislative body. However, the inferior body may NOT exceed the jurisdiction of the enabling statute. Moreover, a delegated body may not re-delegate except based on the expressed provision in the ‘enabling statute implying re-delegation. Examples of such bodies in Jamaica which regulate and monitor their respective areas as a matter of public policy based on authority granted by the government include: Airports Authority of Jamaica, The Port ‘Authority of Jamaica, Commissions in Jamaica include: The Financial Services Commission, The National Water Commission, The Consumer Affairs Commission, Fair Trading Commission, and the Broadcasting, Commission of Jamaica ‘Secondary legislation is made by the government authority or functionary that is granted power by Parliament to make such legislation, ie. Service Commissions to make Regulations, municipal councils, ‘administrative tribunal. Examples include by-laws, ordinanees, rules and regul: ‘Common law refers to decisions of courts in adjudicating particular matters. As distinguished from statutory law created by the enactment of legislatures, the common law consists of a body of principles and rules of action derived from the usages and customs of courts. In other words, itis a body of law that, develops and derives through judicial decisions. ‘The courts set out in writing: 1. the material facts of particular cases; 2. the issues of law involved; and 3. the reasons for the decisions, ‘The reasons for the decision or ratio decidendi, is to form the precedent for future courts to follow as reference for when similar fact situations are adjudicated again. ‘A precedent is a case or decision of a court, considered as an example or authority for an identical or similar case afterwards arising ora similar question of law. Courts attempt to decide cases on the basis of principles established in prior cases. Prior cases which are close in facts or legal principles to the ease under consideration are the precedents. Courts are bound to follow precedent cases in accordance to the doctrine of stare decisis. This doctrine uides judges in deciding future cases through the body of case law. The set of legal principles through decisions are to be followed. As new fact situations arise, the judges decide new cases, the existing principles are broadened, and exceptions are developed and a body of case law is expanded. The role of precedent and stare decisis are extremely important in the development and evolution of common law. It Page 18 of 120 Antonn Brown, B.A. (Hons. LLB., M.Sc. htp:/JAMAICA2CANADA.com Study & Work in Canada to Earn Citizenship,also allows the common law to respond to changing social conditions. ‘The courts interpret the meaning of legislation passed by a sovereign Parliament. The judge interprets the meaning to be placed on statutory provisions relied on when a case comes to court for settlement. Statutory provisions may be interpreted narrowly or widely, which gives a judge potentially great power in ‘determining the future scope ofthe law. ‘The overall approach to interpreting statutes should consist of: |. The judge should look at the context ofthe provision to be interpreted and apply the grammatical or ordinary, literal or technical meaning of the words, if they are clear, even if it results in unjust consequences; ‘The judge should use discretion to apply a secondary meaning if the first leads to an absurdity; ‘The judge may read in words necessarily implied by the statue and may add to, alter or ignore ‘words in order to prevent a provision from being absurd, unintelligible or unworkable; 4, The judge may make use of intrinsic aids to determine the intent of presumptions of legislation. Rules of interpretation have been created to aid the judicial role of applying the law, which include: 1. Literal rate, which dictates thatthe words and phrases ina statute should be given their ordinary and literal meaning and once the ordinary meaning is clear the court should apply it even ifto do so woul result in injustice [See RAMSONAHAI Case]; 2, Golden Rule, which provides that ifthe literal and ordinary meaning of the words ofa statute give rise to ambiguity, repugnancy, inconsistency, or absurd results which Parliament could not have intended, then reasonable meaning may be substituted or necessarily inserted in light of the statute as a whole, which reinterprets a statute to cure absurdity that results from a literal interpretation, but no further [See DAVIS Case]; and 3. Purposive rue [or mischief rule), which states that ajudge must consider: i, The law before the statute was passed to obtain the purpose of the lav; The problem/misehiet the statute was to eddress; ‘The remedy Parliament intended to provide; and iv. The reason for the remedy [See GEORGE GREEN Case} The application of the literal rule does NOT always or usually resolve problem of interpretation. Therefore, it is necessary to apply the golden rule or the mischief/purposive rule under particular circumstances. Other rules include: |. Ejustlem generis, which ensures that the general words which are preceded by particular ‘words which form a clas or genus that is interpreted in accordance with the class words; 2, Noscitur a soctis, which provides thatthe meaning of a word is to be gathered from its context; and 3. Expressio unius est exclusion alterius, provides that where something is expressed it must be taken to exclude something else. In BAPTISTE v ALLEYNE the defendant was found outside a house with his hand through a window choking a female occupant, He was charged and convicted of the offence “..found. ding with intent.,.”” There must be clear and unmistakable evidence that the offender was found inthe building. The ‘Appeal found that the defendant could NOT be said to have been found in the building on a literal meaning or ordinary interpretation ofthe words. InR vRAMSONAHAI AND DUKE, the appellants had conspired to and did plant two bottles of bush rum ‘on Mohamed Ali whom the Police found to have had in his possession. Charges were laid against the appellants fora conspiracy to prosecute Mohamed Ali, knowing him to be innocent of the offence. It was argued that the offence is NOT committed if the evidence discloses an intention merely to cause a public prosecution by conspiracy. ‘The ordinary meaning of the words “to prosecute” is to commence proceeding, Page 19 of 120 ‘Antonn Brown, B.A. (Hons), LL.B; MSe. biups/JAMAICA2CANADA.com ‘Study & Work in Canada to Earn Citizenship.by laying information. If the legislature intended the meaning of the words to include “to cause to be prosecuted” then Parliament would have stated it explicitly as it had in other laws. In DAVIS v R [1962] the defendant was convicted of the offence which probibits parking a vehicle ‘elsewhere than in a place provided for that purpose and in a manner required by an authorized officer. It ‘was held thatthe intention of the Regulation was to create two separate offences of parking otherwise than in a place provided by the Minister for that purpose, and the other, which is parking otherwise than in a manner required by an authorized officer. To reconcile the issue, one must interpret it as mecessary to insert the words “Otherwise than” between the word “and” and “in the manner.” in the Regulation. In R. v GEORGE GREEN [1969] the Appellant was convicted on indictment of the offence of cultivating. ganja, contrary to the Dangerous Drugs Act. At tril, the evidence did not disclose whether the plants ‘which the Appellant was found to be cultivating contained any pistilate plant known as cannabis sativa. ‘The court held that the term ganja as defined in the Act is referable omly to the pistilate known as ‘cannabis sativa and did NOT include other strains of cannabis ‘The court stated that the reason for the law was to follow international standard by conforming with legislation in other countries who were signatories to the International Convention on Dangerous Drugs. ‘This case is an example of the Court analyzing the nature of the statute to discover the reasoning behind its creation, iii, The Development of Equity ‘The development of uty ena he following ‘The state of common law before equity; ‘The practice of equity in early Courts of Chancery; ‘The remedies of Equity; ‘The reception of common law and equity into the commonwealth; ‘The development and application of equity in contemporary ti ‘Common Law Before Equity In general, the common law is a body of law that develops and derives through judicial decisions. Historically, the common law was the ONLY law practiced in England. Litigants coutd only initiate a lawsuit by way of Writ. However, the problem with the Writ System was: 1, The limited number of available Writs and 2. The Writs were designed to fit very specific claims, which meant 1 not fit an existing Writ, the only remedy was to petition the King. tif the litigant’s claim did ‘Over time, the harshness, rigidity and limitations of the common law became increasingly problematic. ‘As such, petitions for the King's Bench or Queen’s Bench increased significantly. The Crown had a residual prerogative over the administration of justice, As such, the Crown had a power capable of being used as a corrective measure for defects or omission in the common law. The need for remedial institutions for common law court was manifested by complaints of injustice directed to the Crown. Sometimes directions were given to the common law courts to achieve justice in a given case. ‘The King was advised by the Lord Chancellor while hearing petitions. Some petitions were delegated to the Chancellor. Courts of Equity ‘The Crown eventually appointed the Lord Chancellor to hear and deliberate petitions, as well as responsibility for sealing documents and issuing new writs when it was decided that new causes of action should be recognized. As a result Special petitions were presented. This created the Chancery Division to hear cases NOT entertained by the common law courts-Thus the birth of courts of equity. Equity is inspired by FAIRNESS and NATURLA JUSTICE. It was the principal authority charged with the responsibility of assessing these special pleas. It is regarded as a court of conscience to cure the Page 20 of 120 ‘Antonn Brown, B.A. (Hons), LL.B. M.Sc. http JAMAICA2CANADA.com ‘Study & Work in Canada to Earn Citizenship.hharshmess that resulted from applications ofa rigid and technical common law. It created remedies ‘hat were not available at common law. Equitable Remedies The significant differences between equity and common law consist of: 1, The set of remedies in which equity entails diseretionary remedies to compel or prevent the actions of the partes, rather than just damages; 2. The substance of equity pertains to matters of law, [rather than finders of fact]; and 3. The source of the rules governing decisions is based on fairness and flexibility based on general guides, and NOT judicial precedent. Equity was regarded as improving and supplementing rather than replacing common law courts, It assisted and perfected, rather than destroy the common law. However, the curative nature means equity prevailed and trumped the common law. ‘The Chancery Division was based on principles of equity and offered new diseretionary remedies that were never available at common law, such as: 1, Injunctions; and 2. Orders for speeifie performance. Equity courts were eventually known as a body of fixed substantive but discretionary rules and principles. Standards were solidified over time. However, as time progressed, with changes or varied with the idiosyncrasies or philosophies of individual Chancellors, the Court of Chancery became as rigid and inflexible as the common law courts that it was supposed to remedy. Common Law and Equity Eventually, the twelve maxims of equity were created to gui the twelve (12) maxims illustrated include: Equity follows the law; ‘One who seeks equity must do equity; ‘One who comes into equity must come with clean hands; Equity will not suffer a wrong to be without a remedy; Equity regards as done that which ought to be done; Equity regards substance rather than form; Equity will not allow a statute to be used asa cloak for fraud; and bring uniformity to equity. Ten (10) of Equity imputes an intent to fulfill an obligation. In 1873 and 1875 the Judicature Acts allowed matters of common law and equity to be heard in the same court. The restructure fused courts of law and equity. ‘There were two sets of rules in one court system. As such, there were still legal and equitable remedies. Damages were available only at common law and equitable remedy could be sought at equity. Once equity became a body of law, rather than an arbitrary exercise, there was no need for separate courts. Equity in Modern Times Equity remains a distinet area of law. Equity is justice that is administered according to or inspired by ideas of fairness and natural justice, es contrasted from strictly formulated rules of common law. In other words, there was an acknowledgment that sometimes, one must look to the consequences of applying the law to analyze whether justice is achieved. The term equity denotes the spirit and habit of fairness. Moreover, sometimes treating everyone equally, regardless of the circumstances may lead to injustice. Equity remains a distinct branch of law. New remedies were developed, such as; Page 21 of 120 : Antonn Brown, B.A. (Hons.), LL.B., M.Se. hp: JAMAICA2CANADA.com Study & Work in Canada to Ear Citizenship,1. Reetifieation, which forces a party to a contract to change the terms of a contract in order to achieve faimess between the parties; 2. Restitution; 3. The Anton Piller Injunction, which preserves intellectual property material such as written or recorded information inclusive of that found on CDs and software; ‘The Mareva Injunction, which prevents the removal of assets from the jurisdiction of the court. ‘The law of trusts; and Estoppel THE DEMERARA TURF CLUB v PHANG held that the principle of assessment of the balance of ‘convenience between the parties must be done before an injunction is granted COOSALS QUARRY LTD. v TEAMWORK held that where the plaintiff possesses material favourable to the defendant, the plaintiff when applying for injunctive relief, should mention all of the material in an affidavit. vy. Precedent “The doctrine of stare decisis (“to stand by decided matters”) mandates that judges of a particular court follow previous decisions of the highest court in a jurisdiction. Decisions of the highest court in the same jurisdiction are binding authority on lower courts in the same jurisdiction. The decision of a cour of another jurisdiction is only persuasive authority. The persuasiveness depends on the type of legal system, and level of court ‘The principle of precedent is that decisions of cases taken at a higher court are to be followed by a lower ‘court. However, it focuses on the requirement that a judge, in resolving a particular case, follow the decision in a previous case, where the fact scenarios in the two cases are similar. Decided cases serve as examples or authority for an identical or similar case afterwards arising on a similar question of law. Courts attempt to decide eases on the basis of principles established in prior eases. Prior cases which are close in facts or legal principles to the case under consideration are precedents-a course of conduct once followed which may serve as a guide for future conduct. A lower court is bound to follow a precedent of ‘a high court ony when the case is similar in facts and principles. Technically, a decision of the Court is, final only for the parties involved in the case. Yet, because the justices in their opinions give general principles for deciding a case and because they generally adhere to precedents, the Court's rulings are usually considered controlling for other similar cases and the larger political controversy they represent. ‘A High Court is NOT obliged to follow the previous decisions of another High Court based on the princi of stare decisis. The court may depart from this concept for good reasons. However, it must follow precedent from higher courts of its jurisdiction, The decisions of all other courts are merely persuasive. Judicial decision-making involves social and economic considerations. Judges must respond to these Conditions. “The work of judges entails an interpretive function. The law must be applied to particular facts. However, judges are bound by precedent to limit the scope of reasonable interpretations. It guides discretion in modifying the law in response to changing social conditions and prevailing attitudes. The interpretive role of judges is tempered with justice, faimess, acknowledging social conditions to foster acceptance and credibility. However, there must be certainty, predictability, and consistency in the role of the judiciary. The Constitution is the ultimate standard for which the law is measured in any national Jurisdiction. ‘A lawyer would not be capable of rendering advice to his clients ifthe law lacked the predictability and certainty which arises out of the operation of stare decisis and precedent. Precedent and stare decisis are rules of aw that are needed to prevent judges ftom imposing their personal whim on socity under the {use of the law, They also avoid additional costs of appeals and unnecessary litigation. It forms the bi Page 22 of 120 ‘Antonn Brown, B.A. Hons), LL-B., M.Se. hitp/JAMAICA2CANADA.com ‘Study & Work in Canada to Earn Citizenship.{In summary, the doctrines of precedent and stare decisis work to: Stand by precedent, NOT disturb settled points, ‘Adhere to set principles, Apply the law to future cases with similar material facts, and Uphold: Consistency; Certainty: Uniformity; Stability Objectivity; Continuity; and Decrease bias. cere ape ee Issues Related to Precedent Relevant principles to Precedent include: ‘* Ratio Decidendi, which isthe reasoning of the case or principle of law thatthe court uses to make its decision, which is really the ratio of the previous case which the lower court examines to make a decision; '* Obiter dicta, which is reasoning or statements that are not essential to the decision of the case and does not create a binding precedent, although it may become persuasive authority in a subsequent ‘+ Stare decisis, which isthe principle of standing by decisions in that itis necessary to abide by precedents when the facts of cases are similar, in which judges of @ particular court must follow the previous decision ofthe highest court within that particular jurisdiction; «Distinguishing a case, is determining that a previous case i different based on dissimilar facts or circumstances and thus does not have to follow precedent; and ‘© Overroting a case, which is the seting aside of @ decision of an earlier court ruling or of a lower court decision Criticism of Precedent ‘Disadvantages of the operation of precedent and stare Rigidity: Inflexiility in the law; ‘The danger of illogical distinctions; and ‘The magnitude and complexity of detail in the common law. ‘The Supreme Court may be too rigid in adhering to precedent which may lead to injustice and unduly restrain proper development of law. There may be compelling reasons to NOT mechanically follow precedent. It may unduly restriet the proper development of the law. ypuishing Cases In order to overcome the rigidity and inflexibility inherent in a system of precedent and stare decisis and to promote justice, the courts may avoid a binding or persuasive precedent by distinguishing the case. If a material fact of facts is be absent in a precedent case, a judge will then be in a position to deny the necessity of following the precedent. Judges may avoid precedents by reinterpreting the ratio decidendi of a case to obiter dieta, which are statements of law made by a judge tht is part ofa case but which do NOT contain the particular rule of law ‘upon which a case is decided. Thus, obiter is NOT binding. In the absence of a compelling reason or distinguishable fact situation, the decision of court of co-ordinate jurisdiction should be followed. Where Page 23 of 120 Antonn Brown, B.A. (Hons), LL-B.. M.Se. hutp://JAMAICA2CANADA.com Study & Work in Canada to Ear Citizenship.Judges of the same jurisdiction differ in the interpretation of the same statute, a judge does not have to follow a previous interpretation. VIERRA v WINCHESTER [1966] held that a Court of Appeal is bound by its own decision unless it ean bbe shown that such a decision was given in error. vi. Custom Custom isthe oldest source of law. 1t is unwritten and passed from one generation tothe next via word- ‘of-mouth dissemination. Most general customs have been incorporated into legislation or case law. They are legally recognized and legally enshrined practices or usages based on: Continuous operation since 1189; Open exercise; Exercise conducted peaceably and as of right; Reasonable, certain, obligatory in nature; and Consistency with other customs and compat lity with statutes. ‘Tests used by courts to establish the existence of custom include: 1. Cert Continuity, Reasonableness, Consistence, and Legality. It must be proven that Local custom has existed since time immemorial [1189]. Time immemorial is treated as having been proved where a local custom is shown to have existed within living memory of the ‘oldest resident of the area. General customs are such that prevail throughout a country and become the Jaw of that country and their existence isto be determined by the court which fas been long established. CHAPTER TWO: CARIBBEAN LEGAL SYSTEMS ‘This chapter describes: “The classification of aw; “The Nature and Structure ofthe Court Syste ‘The Caribbean Court of Justice to replace the Privy Council; and Alternate Dispute Resolution, with an emphasis on Mediation (Classifications of Law ‘The law may be classified by: 1. Subject Matter, such as torts, contract, and real property; 2. Funetion, such as: ‘Substantive law which is the body of rules regulating the making of claims and defences in court; '. Procedural law comprises the rules by which a court hears and determines what happens in civil or ctiminal proceedings or the regulation of procedures to ensure a fair and consistent application of due process or fundamental justice to all cases that come before court; 3. Civiland Criminal law; and 4. Concepts, such as: a. Private law, which includes torts, contract, and real property; and. 'b. Public law, which includes constitutional law, administrative law, and criminal law. Page 24 of 120 ‘Antonn Brown, B.A. (Hons. LLB. M.Se. hutp:JAMAICA2CANADA.com Study & Work in Canada to Eam Citizenship.‘Examples ofthe Classification of Law Laws may be classified in several ways, such as: ‘+ Positive law from lepal sources of law; or + Other sources, such as: morality, natural law and religion Positive law may be divided into sub-categories including: ‘Public International law, dealing with intemational affairs of nations as part of the international community based on recognized customs, covenants, rules, principles and treaties; and ‘+ Domestic law, which consists of positive laws governing affairs ofall in a sovereign independent nation, Domestic laws can be divided into the following: ‘* Substantive law, which is a body of rule regulating contract, torts or crimes that imposes liability, obligations, penalties or remedies, such as civil, criminal, public and private law; and ‘+ Procedural law which deals with the mechanism, procedure, rules for fairness of proceedings such as rules of evidence. International Law vs. Domestic Law Intemational law regulates the actions of states and the entering into of treaties between sovereign nations, WHEREAS domestic laws handles national jurisdiction. Public vs. Private Law Public law deals with areas of law in which the public interest is primarily involved, such as eriminal, constitutional, administrative and tax law. Constitutional law limits or prescribes the powers of the {government and protects fundamental freedoms; administrative law governing tribunal decision and regulatory agencies; and criminal law which outlines offences against the state and public interest. Private law deals with private interests and resolves private disputes. Examples inchude: property law which governs the rights attached to ownership and possession of real and personal propery; tort law which deals with intentional violations of private right and duty of cae to others; and contact law which deals with voluntary and binding agreements. ‘Criminal vs. Civil Law Criminal law deals with offences such as theft, robbery, burglary and murder that are classified as sufficiently anti-social to warrant punishment by the State in the form of imprisonment ofthe offender or by the imposition ofa fine Civil law, provides for making of contracts, wills, ownership and transfers of propery, and regulates employment, consumer transaction and family matters. ‘The Benefits of Classifying the Law Itis useful to classify the law forthe following reasons: 1. Understanding the purposes and functions served by law; 2. Procedures differ based on classification of laws; 3. Penalties or remedies differ according to the type of law, whether it be for imprisonment or damages; and 4. The rationale may differ from punishment to compensation. ‘The classification of law is important in terms of seeking redress. For example, if a driver caused damage as a result of drunk driving, criminal proceedings may be taken against the driver for punishment, while a civil proceeding in tort would have to be sought to obtain compensation for hospital bills and loss of income in the realm of private law. Moreover, the classification allows organization of precedent, ‘experiences and procedures. Lawyers are able to research solutions to specific problems based on information that is classified and catalogued. Page 25 of 120, Antonn Brown, B.A. (Hons), LL.B., M.Sc. hhups/.JAMAICA2CANADA.com Study & Work in Canada to Ear Citizenship.Classification also provides options for clients to seek redress indifferent areas of public and private law. ‘The classification of law also enables one to know the available remedies. One must be aware of the various heads under which the law is classified and how to obtain relevant information for each area. Knowledge ofthe classification of law isthe only means of finding the necessary legal principles to resolve the matter. This is essential to giving legal advice or taking legal action, In many cases both substantive ‘and procedural laws are applied, One scenario may illustrate that public law, or more specifically criminal Jaw applies just as much as private law, or more specifically tortor contract Iw. 22) ture of the (Criminal and Civil Courts Courts in the Commonwealth Caribbean have adopted the hierarchical structure of the courts in England. ‘The Judicial Committee of the Privy Council, although technically not a court, ACTS as the top of the ‘court hierarchy. Itis the final Court of Appeal for all the Commonwealth territories or the court of last resort. ‘The highest locally-based court in the Commonwealth Caribbean is the Supreme Court of the High Court, which consists of: 1. Court of Appeal, 2, AHigh Court; and 3. A Full Court of the High Court. “The following table isa listing of the various courts in the Commonwealth Caribbean territories, arranged in hierarchical order according to function and the power to exercise authority over other courts, Mii ata _ Ta a is 1 The Judicial Committee | The court of last resort for all Commonwealth Caribbean ofthe Privy Council _| territories, except Guyana z Court of Appeal Tn the absence of Caribbean Court of Susie, this the highest ranking locally-based court. They can send beck a ease for @ rehearing tothe High Court 3 This court makes decision based on the common law. Supreme Cour 7 ‘The Full Court ofthe | This s the court of appeal for decisions om the magistrates” sa court Family Court ‘A court vested with the power and authority to hear and determine all matters pertaining to the family, [with the exception of Divorce.] 6 Juvenile Court ‘A court vesied with the power and authority to hear and determine all matters pertaining to juveniles. 7 ‘Magistrates Court ‘Court established to deal with petty erime. Decisions are not reported and cannot produce binding or persuasive precedents. Allcriminal matters begins in this court. ‘Court established to deal with industrial relation matters. i. The Judicial Committee of the Privy Council ‘This is a body that ACTS as a court, which has the power to hear matters of a eriminal and civil nature. In civil matters, it will limit its power to hear matters concerning property above a certain value, while in Page 26 of 120 ‘Antonn Brown, B.A. (Hons), LL.B. M.Se. hitp:JAMAICA2CANADA.com Study & Work in Canada to Eam Citizenship.criminal matters there must be some serious miscarriage of justice. There isan unfettered right to appeal to the Privy Council in any case that raises a constitutional or fundamental right issue. i Court of Appeal ‘The decision of the Court of Appeal can be overtumed by the Judicial Committee of the Privy Council ‘his court ean make separate and impendent judgments in Civil and Criminal matters without having to censure that one judgment has bearing on the other. ‘The main power of this court includes: 1, The authority to send a ease back to the High Court for rehearing: 2. Impose a harsher or lighter sentence; 3. Dismiss appeals to the Full Court of the High Court; 4, Quash a decision of the High Court of the Supreme Court acting in its jurisdiction as the Court of frst instance. iii The High Court of the Supreme Court ‘This court is vested with power to handle matters of common law. including: 1. The hearing of allegations of breach of a fundamental right; 2. The hearing of allegation of an Act of Parliament being inconsistent with the Constitutions other than the fundamental rights provision; 3. Supervise any statutory functionary or public body to ensure they keep within the ambit of the powers vested in thems; and 4. To make certain determination under certain statues, such as winding up a company under the ‘Companies Act or dissolve a partnership under the Partnership Act fv. The Full Court of the High Court ‘This court bas inherent jurisdiction. This means that it is empowered at common law to make decision based on case law and statute, This court is also the court of appeal for decision from the magistrates? court. However, for Guyana certain issues which arise at Appeal Court level are sent to be heard by the court because there is no recourse to appeals tothe Privy Council y. Family Court This Court is NOT present in all Caribbean territories. This Court has jurisdiction over family law matter, ‘excluding divorce. It is found in Jamaica by the passing of the Judicature [Family Court] Act, 1995, for example. vie Juvenile Court This Court was to improve the welfare of juveniles in the court system. A juvenile is one who is under the age of 18, and has committed a criminal offence, having no parent or guardian, or is found destitute. strates’ Court All criminal matters begin in this court. This Court handles summary, hybrid and indictable offences. ‘The criminal jurisdiction deals with assault, theft, embezzlement of money and damage to property and crops. For eivil jurisdiction, the court deals with family matters, separation, child support and custody. vii, Industrial Court ‘These courts may be separate quasi-judicial bodies. ‘These cours: 1. Determine the majority union ina firm; 2. Register agreements made between union and employer; and 3. Settle industrial disputes. ‘The differences between Magistrate's Courts and High/Supreme Courts include: ‘Magistrate’s Courts High/Supreme Courts 1 [inferior Court ‘Superior Court 2 | Magistrates adjudicate on matters before the | tudges adjudicate on matiers before the Court, Page 27 of 120 ‘Anton Brown, B.A. (Hons.), LL.B., MS. http JAMAICA2CANADA.com ‘Study & Work in Canada to Ear Citizenship‘court 3 | Original jurisdiction ial and civil | Original and appellate jurisdiction in civil and matters. criminal matters. | Dual functions including: Only have a trial function for original and appellate ‘Investigative function, which consists | jurisdictions. of preliminary inguiries into indictable offences to determine whether the accused should be committed to stand trial before a jury inthe High Cour; and + _ Trial function. 3_| Limited jurisdiction in Civit matters Unlimited jurisdiction in civil matters. ‘6 | Limited jurisdiction in criminal matters. Unlimited jurisdiction in criminal matters. 7 | Jurisdiction determined by statute only. ‘Jurisdiction determined by statute, common law and inherent jurisdiction of the Court. 8 _[ Jury absent Jury present in criminal matters. (9 | Remedies are limited. Remedies are unlimited. 10 | Jurisdiction over lesser or minor offences. | Jurisdiction over serious offences. Constitutions in each Commonwealth Caribbean State make provisions for the establishment of other tribunals, ssion. = ‘STRUCTURE OF THE JAMAICAN COURT SYSTEM ‘The Court of Appeal ‘Appeals against decisions from both the Supreme Court and the Resident Magistrate's Court are heard in the Court of Appeal It consists of the President ofthe Court of Appeal and six Judges of Appeal. The Chief Justice is an ex-officio member, but only sits on the invitation of the President in matters in which that the full Court is siting. A Judge of the Court of Appeal must be an Attoney-at-law of at least ten years standing, Judges of the Court of Appeal are appointed by the Governor General on the recommendation of the Judicial Services Commission. The Chief Justice and the President ofthe Court of Appeal are appointed by the Governor General on the recommendation of the Prime Minister after consultation with the Leader of Opposition. Page 28 of 120 ‘Antonn Brown, B.A. (Hons), LL.B., M.Se. hitp:/JAMAICA2CANADA.com Study & Work in Canada to Eam Citizenship.‘The Supreme Court The Supreme Court has unlimited jurisdiction in civil and criminal matters. It consists of the Chief Justice, 4 Senior Puisne Judge and at least twenty other Puisne Judges. Puisne Judges must be Attomeys-at-law of at least ten years standing. Judges of the Supreme Court are appointed by the Governor General on the recommendation of the Judicial Services Commission. They have jurisdiction to heat applications regarding breaches of fundamental rights and freedom as provided for under the Constitution. This Court exercises important supervisory functions over tribunals like the Industrial Disputes Tribunal and the Resident Magistrate's Court in the hearing of writs of habeas corpus and making of orders of certiorari, ‘mandamus and prohibition. Two divisions of the Supreme Court are the Revenue Court established in 1971 and the Gun Court established in 1974. The Gun Court Act was later expanded to include the Wester Regional Gun Court that hears gun offences committed in the parishes of St. James, Trelawny, Westmoreland and Hanover. The third division of the Supreme Court is the Commercial Court which began operations in February 2001. ‘The Circuit Court is the eriminal jurisdiction of the Supreme Court that is convened in Parishes for the Proper administration of justice. Itis convenient for the parties involved, as it eliminates the need to travel to Kingston for the prosecution of cases. ‘The Circuit Court held for the parishes of Kingston and St. Andrew is called the Home Circuit Court, while that which is convened in the other Parishes are named after the respective Parish, for example, the St. Catherine Cireuit Court or the St. James Circuit Cour, ‘The Resident Magistrate's Court ‘There is a Resident Magistrate's Court for every Parish and it has jurisdiction within that Parish and one ‘mile beyond its boundary line. This Court presides over both civil and criminal matters. The divisions of the Resident Magistrate's Court are the Family Court, the Juvenile Court, the Traffic Court, Gun Court, Small Claims Court, the Drug Court and the Night Court. The Resident Magistrate’s Court has limited Jurisdiction in both civil and eriminal matters; the amounts and the extent of the jurisdiction of this court is provided for in the Judicature (Resident Magistrate's) Act. The Resident Magistrate must be an Attomey- ‘at-law of at least five years standing, Resident Magistrates are appointed by the Governor General and the Judicial Services Commission. Civil maters tried at a Resident Magistrate's Court include recovery of possession, recovery of rent, granting of probate and letters of administration. The Resident Magistrate's Court has no power to hold a ‘tial for certain criminal offences including murder, treason and rape, however in such cases a Preliminary Examination or enquiry into the charge is held. In this enquiry, unlike a trial where the objective is to ‘determine whether the defendant is guilty or not guilty, the purpose is to determine whether the evidence is sufficient forthe accused to stand trial atthe Supreme Court. The jurisdiction of this Cour is defined by Stanute. Petty Session Court ‘The Petty Session Court is presided over by Justices of the Peace. The Justices ofthe Peace Jurisdiction Act confer various powers on the Justice of the Peace including the power to issue warrants consequent on non= obedience to summons. A Resident Magistrate has the power of two Justices of the Peace. aribbean Cou Cc CCJ is the regional judicial tribunal of tast resort to replace the Privy Council established in February 2001 by the Agreement Establishing the Caribbean Court of Justice. The agreement was signed. ‘on that date by the Caribbean Community (Caricom) states of: Antigua & Barbuda, Barbados, Belize, Grenada, Guyana, Jamaica, St. Kitts & Nevis, St. Lucia, Suriname and Trinidad & Tobago. Two further states, Dominica and St. Vincent & The Grenadines, signed the agreement in February 2003, bringing the {otal number of signatories to twelve. The location of the CCJ is in Port of Spain, Trinidad & Tobago, and ‘Was inaugurated on April 16, 2005. However, it was in 1970 that a Jamaican delegation at the Sixth Heads ‘of Government Conference, first proposed the establishment of a Caribbean Court of Appeal in substitution for the Judicial Committee of the Privy Council. Page 29 of 120, Antonn Brown, B.A. (Hons), LL.B., M.Sc, hitpy/ JAMAICA2CANADA.com ‘Study & Work in Canada to Earn Citizenship.‘One of the most compelling arguments forthe establishment ofthe Caribbean Court of Justice is the need to have an authoritative, regional institution to interpret and apply the Treaty, as amended, inorder to create the CARICOM Single Market and Economy. is“... to provide for an accessible, fair, efficient, innovati justice system built on 2 jurisprudence reflective of our history, values and fi ‘an inspirational, independent ‘confidence ofits people.” ‘The Mission The CCI shall perform to the highest standards as the supreme judicial organ in the Caribbean Community. In its original jurisdiction it ensures uniform interpretation and application of the Revised Treaty of Chaguaramas, thereby underpinning and advancing the CARICOM Single Market and Economy. As the final court of appeal for member states of the Caribbean Community it fosters the development of an indigenous Caribbean jurisprudence. and impartial ions while maintaining stitution worthy of emulation by the courts of the region and the trust and Its proposed thatthe CCI will possess two [2] jurisdictions: 1. An appellate jurisdiction, which will hear all eivil and criminal appeals from the common law lower domestic courts ofall Commonwealth Caribbean tetitories, and 2. An original jurisdiction to act as a compulsory and exclusive international tribune to interpret and apply international law to: a. Matters arising out of issues between Commonwealth Caribbean States; b, Matters establishing the rights of private individuals under certain international treaties; and ‘©. Matters arising out of trade disputes. n civil cases either party can appeal the decision of the court. In the Commonwealth Caribbean territories, the prosecution has NO right of appeal for criminal cases. However, the defendant can appeal to the CCI for criminal cases. For example, for criminal cases, the first instance is the magistrates court; followed by tral in the High ‘court; with an appeal to the Court of Appeal; and subsequently one obtains leave to appeal to the CCI. Ne Improvements of the Caribbean states must continue to insist on appointments of the highest quality to the Bench. There should also be a judicially inspired system of performance appraisal for the qualitative performance of the Judiciary. “Resources need to be allocated to reflect the demands and responsibilities of the court. The ‘criminal justice system needs modernization to avoid undue delay [See PRATT AND MORGAN Case,] ‘The judicial system must buy into modem management concepts for efficiency. For example, taking ‘advantage of and using technology in transcribing evidence, building information and case management system, updating libraries and creating databases. There must also be an improvement in physical facilities and infrastructure, There should also be significant effort in law revision and law reform for ‘modernized law that upholds human rights. Continuing support at the regional level for training in the legal profession should also exist. Disadvantages of the CC, Perceived disadvantages of establishing the CCS incl The Privy Council 1. The Privy Couneit is properly and satisfactorily functioning as the current final court of appeal forthe Commonwealth Caribbean territories; 2. The Privy Council is capable of being more dispassionate in interpreting and applying the law to the region by being removed from the social environment; Page 30 of 120 ‘Antonn Brown, B.A. (Hons.), LL.B., M.Sc. http: JAMAICA2CANADA.com ‘Study & Work in Canada to Earn Citizenship.Constitutional Issues 3. Constitutional reform and/or referendums are necessary to repatriate the final Court of Appeal; 4. The CCJ is NOT entrenched in the Constitutions of Member States rendering it more vulnerable to withdrawal; 5. The Agreement Establishing the CCJ provides for withdrawal ftom the. tegime, which suggests politcal convenience and impermanence; 6. Suspicion of venturing in unknown legal institution and professional resistance to change for a system which is NOT known for substantive and procedural justice; Judges 7. There may be an insufficient number of judges available with the requisite skill, personel ‘qualities, advocacy skills, common sense, vision and oral and written communication skills to enable them to function effectively, which would lead to the appointment of judges of poor guality; 8, There is lack of clarity as to whom would appoint the judges, [since the Prime Minister of each “Member State has a veto power over the appointment ofthe Chief Justice}, 9. The CCI has a system of appointment and removal of judges that is less protected which ‘increases the appearance of independence; 10. The judges of the CCJ may be vulnerable to political manipulation from member states of the Regional Judicial and Legal Services Commission; and Funding 11, Adequate and sustainable funding of the Hundreds of Millions of Dollars [USS] for operations ‘and maintenance of the CCJ may NOT be available from or shared by Member States. Citizens of member states will lose the right of appeal to the highest tier of the judicial system, which consist of Judges of the highest ealiber and so recognized before and after the independence of member States. The Privy Couneil is responsible for many decisions which have benefited many in the past. There is NO guarantee that that the quality of the CCJ will be of similar to that of the Privy Council. The removal of the Pricy Council destroys the integrity of the judicial system because Citizens have a legitimate expectation thatthe Privy Couneil will remain intake, vantages of the CCI However, the perceived advantages of establishing the CCJ include: Indigenous Culture 1. The Privy Council is geographically and eulturally removed from the Commonwealth Caribbean experience. It does not possess the knowledge and understanding to make decisions that reflect Caribbean sensitivity and determine what is in the best interest for a particular society based on an intimate knowledge of the society acquired first-hand: 2. The laws of the region would mirror the collective social ethos and be relevant and responsive and ‘would be interpreted and applied by Judges who would have internalized the values informing the content ofthat collective social ethos Independence 3. Sanetions and pressures brought to bear on a state that disobeys the CCI will ensure compliance ‘even though the CCJ decisions may not be enforceable. ‘4. Iencourages the development of autonomous regional jurisprudence. 5, The CCJ will foster increased sense of security and stability in the region and will heve Jurisdiction over the Treaty of Chaguaramas which created CARICOM, as wel as issues between states after the establishment of the Caribbean Single Market Beonomy; ‘Competence 6 There are enough members of the legal profession possessing the requisite degree of skill and integrity to oceupy CCS positions; Access 7. Lower costs to litigants; and 8. Greater accessibility to litigants. 2.5 Altemative Dispute Resolution Page 31 of 120 ‘Anton Brown, B.A. (Hons.), LL.B., M.Sc. tp: JAMAICA2CANADA.com Study & Work in Canada to Earn Citizenship.There are many different methods of resolving conflicts between parties, including: the traditional court system for general legal disputes, and the Ombudsman for matters against the government. However, Alternative Dispute Resolution [ADR] is another mechanism that may be used to settle or resolve dispute instead of litigation in the court system. ADR covers several means forthe settlement of disputes by way of ‘negotiation, conciliation, mediation and mini-trails [or a combination of some or all of these methods} Emphasis for ADR is placed on agreement of the parties, [rather than an adversarial adjudication, where the emphasis is on finding in favour of one party against the other). The process [ADR] may also reduce the workload of the court system, ADR involves the participants in the process of resolving the dispute. Each case is decided on its merits without reference to previous cases, and the common ground between the parties can be emphasized rather than a point of disagreement. It offers a confidential process and the outcome will not be published without the consent of the both parties. Resolution ofa dispute can be quicker and more straightforward nd the hearing times and places are at the agreement ofthe partes Negotiation before undertaking litigation is a recognized procedure in an attempt to settle the matter amicably. ADR may precede litigation as a way of establishing the common ground between the parties and the point on which they cannot agree. Litigation is stil the last resort in many cases. Mediation may be Incorporated in the family law, criminal and civil litigation. Benefits of ADR ADR mechanisms offer significant benefits, such as: 1, Neutral third partes to settle disputes; 2. Informal; 3. Speed; 4. Lower expenses; 5. Increased user-friendliness; 6. Involvement in the process of resolving their disputes, with regards to: i, The method, ji, Procedure, iii. Cost, and iv. Location. ‘The ADR bodies exist, but are mostly in an informal and unstructured way. Some forms of ADR include: 1. Arbitration, 2. Mediation, 3. Conciliat Arbitration is establi party hears the testimony of both parties to the dispute in a relatively informal setting. Thi formal ADR method and a decision is made by an umpire appointed by agreement between the parties. However, the decisions are binding, just like the court system. Reference is made to statute and case law in support ofthe respective arguments. However, the arbitrator may apply general community standards of faimess to assist in rendering a decision. The rules of evidence are less strictly applied, although there are some elements of the court system, ied through The Arbitration Act. Arbitration is a process in which a neutral third is the most Both parties agree to submit to the procedure and decision of an arbitrator, who will usually be a person with both legal knowledge and special knowledge ofthe subject matter ofthe dispute. I is offen used in landlord and tenant disputes, commercial and shipping claims and union conflict. Judges may act as arbitrators, Conduct ofthe hearing is informal and the award is private, and isnot published as is @ court Jisdgment, The arbitrator is a judge of both fact and law. After hearing and contemplating the testimony, Page 32 of 120 Antonn Brown, B.A. (Hons), LL.B., M.S. Itp://JAMAICA2CANADA.com ‘Study & Work in Canada to Ear Citizenship.the arbitrator makes a decision and an order of the High Court may be obtained in order to secure the ‘enforcement of the decision, ‘The general principles to be achieved includ |. The fair resolution of disputes by an impartial tibunal without unnecessary delay o expense; 2. Parties should be free to agree how their disputes are resolved subject to necessary public fi safeguards; and 3. Cour intervention should be kept toa minimum, ‘The court should intervene when the role of the arbitrator is crucial and only where the arbitration process is found to be failing or where legal knowledge is required. Arbitrators are drawn from experts in the area in question or from a trade association, ‘The grounds of appeal against the decisions of an arbitrator include: An allegation thatthe arbitrator acted ‘without jurisdiction or an allegation of serious irregularity; such as failure to comply with the general duty, ora point of lew. Arbitration has some acivantages, which include: 1 Speed; 2. Minimum publicity; 3. Absence of a binding precedent; 1. The decision may be enforced; Less expensive and time consuming than the court system; ‘The informal setting reduces tension between the partes. Popular examples of arbitration include television shows regarding conflict resoluti settings such as Judge Judy, Judge Joe Brown, Judge Hatchet and Divorce Court. The differences between Arbitration and Mediation are: “Arbitration Mediation | Contains certain elements of a court oF law Contains no elements of court of law bu is informal 2 | Third party hears testimony of the parties ‘Third party istens to the position of the parties and communicates these positions to each disputant 3 | Arbitrator makes the final decision ‘The parties come to an agreement/settlement after discussion inthe presence of a third party 4] Decision “of the arbitrator is binding on the | Agreement between the parties are not enforced by Parties and may be enforced by an order of the | the court, but parties usually comply with the Court. decision because it was made by them. ‘Mediation includes a third-party mediator acting as a conduit of communication between the parties. A. ‘mediator communicates the position of the parties to attempt to reconcile their differences towards achievement of an agreed settlement, ‘The mediator may also acts as both judge and jury in holding separate meetings or caucuses for further ions of the partes to suggest possible agreements. However, the decision is NOT. binding on the partes. ‘The advantages of mediation inctude: 1. Reduced time and costs in resolving a dispute; 2. Confidentiality is maintained; 3. Faimess and flexibility are promoted; and 4. There is a high rate of compliance with the final decision. Page 33 of 120 Antonn Brown, B.A. (Hons), LL.B., M.Se. hutp:/ JAMAICA2CANADA.com ‘Study & Work in Canada to Eam Citizenship."LE: Medi Mediation is an effective and efficient means of resolving disputes as an alternative to litigation and a ee a adjudication in the Court system. Cours of Law Mediation is a voluntary dispute resolving process in which a neutral third party - the mediator - facilitates ‘and coordinates the negotiations of disputing parties. The mediator merely facilitates the process of achieving a resotution and does not assume partisan sides in the dispute. Unlike a judge, the mediator does ‘not have the authority to impose a decision upon the disputants, as the parties themselves decide whether ‘and how to settle the dispute. Mediation can be conducted in the court system, police stations, and schools ot in any setting where the disputants choose to use a third party to help settle their differences. ‘The purpose of mediation isto resolve conflict in a manner that: ‘Acknowledges the rationality of disputants to solve their own problems; Provides a neutral atmosphere; Equalizes the parties; Develops the best solution under the circumstances; and Encourages long-term and sustainable relationships by balanci stakeholders to a dispute, interests between all of the Mediation is an organized and structured negotiation process, in which the mediator: |. Clarifies issues, values and substantive, procedural and psychological interests which are the bases cof most conflict resulting from miscommunication, misperceptions and emotions; Sets the agenda and maintains order, Develops and offers broad interest-based proposals; Guides and focuses the disputants through a discussion of their mutual problems and concemns; Controls the flow of information and fciltates communication to help make decision; Organizes the presentation and exchange of proposals and options; Articulates rationale for an agreement to facilitate consensual and reasonable solutions; Guides to appropriate grounds for settlement based on the law, industry practice and principles of justice, and equity; Assists parties in evaluating proposals and understanding the strengths and weaknesses of positions and the likely outcome of litigation if resolution isnot reached in mediation; 10, Assists the partis in arriving ata resolution of their dispute; 1, Encourages behaviour which makes it more likely that the parties will reach an effective compromise; and 12, Ensure long-term satisfaction ofthe partes. Pa ewaeN fits {In comparison to the utilization of the Court system that dictates outcomes, mediation has shown: 1. Effective, efficient and productive resolution of disputes; 2. Less alienating, combative, adversarial, intimidating, confrontational and inaccessible structure, which disempowered parties have no control over, the imposition of publicly binding formalized Positions, which champions individuals rights within @ narrow and limited range of options wl Jacks creativity and innovation; Page 34 of 120 ‘Antonn Brown, B.A. (Hons), LL.B., M.Se. htpi/JAMAICA2CANADA.com Study & Work in Canada to Ear Citizenship.3. The avoidance of the formalized adjudicated Court process of indirect participation in justice, inevitable delays and corresponding expenses, demand for high standard of proof and complex. procedural and evidentiary provisions for witness credibility; 4. The reflection of a broader range of interests than just legal rights and standards; 5. The enhancement of fong-term sustainable relationships through the encouragement of circumstantial win-win or positive-sum solutions; 6 The balancing of the interests of all stakeholders, which attempts to reconcile competing interests; 7. Affordability due to drastically reduced costs and avoids delay and time consumption in which lawyer's fees outweigh actual damage awards; 8. An emotionally-supportve framework through increased six (6] Cs, which are: Collaboration, Cooperation, ‘Communication, ‘Commitment, Consensus, and £ Compromise; 9. The luxury of the parties" involvement in a tailor-made solutions, which are more intimate, and have less alienating and disjointing effects; 410. Consensual and community-oriented approach to problem-solving; 11. ‘Satisfaction of the parties involved due to increased input and having interests recognized in face- to-face direct communication to repair or maintain relationships; 12, Acknowledgement that parties may be in a better position to make decisions that affect their respective needs, rather than judges; and 13. The enjoyment of privacy and confidentiality, Examples of the domestic family matters that may be dealt with include: © Domestic Contracts; ‘+ Divorce and Separation; * Child Custody, Access and Visitation; - a 5 ‘© Division of Property. Conciliation Conciliation employs the use of a third party to remove the obstacle to recone! to encourage a settlement opinion may be given, as is Caribbean Legal is 3.LThe Legal Profession ‘The legal system includes, but isnot limited to the following fifteen (15] offi 1.” The Attorney General, who is in charge of all eivil litigation initiated by the State or brought against the State; 2. The Director of Public Prosecution [DPP|, who isin charge of all erimin the State or brought against the State; ‘The Deputy DPP, who appear in court to conduet cases on behalf ofthe State; and State Prosecutors who assist the DPP in the DPPs Chambers; ‘The Chancellor [of the Judiciary,] who is in charge ofthe entive judiciary and presides over the Court of Appeal and sits to hear appeals with ther Appeal Court Judges; Appellate Judges; President of the Court, who operates the High Court on a daily basis and are responsible for the distribution of cases to the various judges [in Trinidad and Tobago}; Chief Justice, who has the same power and function of operating the {in Guyana}: Puisne Judge matters initiated by ae igh Court on a daily basis ° Page 35 of 120 ‘Anton Brown, B.A. (Hons.), LL.B., M.Se. http://JAMAICA2CANADA.« ‘Study & Work in Canada to Ear Citizens10. Chief Magistrate is in charge of all magistrates’ courts and hears civil and erimi as well as direct responsibility forthe distribution of eases to other magistrates, 11, Court Marshals are peace officers of all courts above the level of magistrate” courts; 12, Orderlies and Bailiffs are peace officers of magistrates" court; 13, Registrars of the Supreme Court Registry, who is a qualified Attomey-at-Law and possesses the status of a Puisne Judge; 14, Clerks; and 15, Police Prosecutors. La ‘The lel proeson in he Commonneth Caran is similar tothe Eagih stem. Hier, 9 ion existed between solicitors and barristers as equally entitled to be admitted to the Inns of Court in the Untied Kingiom, ser pasng tet examinations, Barstrs ae specialist advocates who prepare opinions, draft court documents and represent the lay client in court based on instructions from solicitors ‘The solicitor is a legal general practitioner who offers advice and drafts documents such as contracts and wills. ‘There is now a fusion of the profession. An attomey-at-law is trained as both barrister and soli ‘There is a new education and training system that combines the academic and professional aspects. After completion of the Bachelor of Laws degree [LL.B.], which lasts three (3} years, the undergraduate law student may proceed to the Normal Manley Law School in Jamaica or the Hugh Wooding Law School in Trinidad and Tobago to read for professional training about the procedural aspect of the law course ‘This i a two-year training programme, which grants a Legal Education Certificate, ‘The law program is conducted at four centers across the region, namely, the three campuses of the University of the West Indies (Mona in Jamaica, Cave Hill in Barbados and the St. Augustine Campus in ‘Trinidad and Tobago}, and at Turkeyene Campus of the University of Guyana. The Role of Prosecution Counsel ‘The prosecution is NOT in court to win the case at all costs. The counsel is to present the evidence properly and persuasively and cross-examine the defense witnesses with the necessary vigour and guile to the best of one’s ability. Rv BANKS [1916] held that prosecuting counsel ought not to strugee forthe verdict against the prisoner, but they ought to bear themselves rather in the character of the ministers of justice assisting in the administration of justice. Moreover, a plea of guilty to a lesser offence or on some, but not all counts by the defense is appropriate as long asthe proposed pleas representa fair way of dealing with the case. The ‘consideration should NOT be limited to whether there is evidence for a harsher conviction. The pleas should be accepted, subject to any comments by the judge. In addition, the prosecution is under a duty to + disclose previous convictions of its witnesses to the defense although it may be disadvantageous, The prosecution must be scrupulously fair tothe accused, but NOT too generous, In R v PARASKWA [1983], the Court of Appeal quashed Paraskwa’s conviction for assault occasioning ‘actual bodily harm because the case against him tured upon whether the victim of the alleged offences was ‘truthful, and the prosecution falled to disclose thatthe vietim was convicted of an offence of dishonesty. ‘The Role of Defense Counse! ‘The defense counsel is the advocate for the defendant. A duty is only owed to the client. He or she ‘must use all means to secure an acquittal for his client. However, while the defendant is entitled to a fait tral, the defence counsel may exercise the right not to proveed with the defence under new circumstances. If the trial is ata eritical stage the judge has the right to refuse the defence attorneys request to be excused from the case if it is believed that great injustice or prejudice would be done to the defendant. Ifthe request is accepted, then the defence attorney may assist the client in securing the services of another lawyer. Page 36 of 120 ‘Antonn Brown, B.A. (Hons.), LL.B., MSc. hitp:!/JAMAICA2CANADA.com ‘Study & Work in Canada to Earn CitizenshiHowever, the defence attorney is NOT entitled to disclose the reason for declining to continue to act as defence counsel. Its the duty ofthe counsel to report procedural irregularity before the decision or judgment of the court is made, In Rv MCFADDENA AND CUNNINGHAM it was held thatthe defense counsel's duty to present to th court fearlessly and without regard to his personal interests- the defense of the accused. His person: ‘opinion of truth or fabsity of the defense, or of the character of the accused, or the nature of the charge should NOT be considered relevant, This is the cardinal rule ofthe Bar, which is necessary in a fee society. Discipline of Lawyers Discipline can take many forms, including: Conciliation, investigations, adjudication, frequent auditing of a lawyer's accounts, fines, suspending the right to practice law, or disbarment. The Law Society has wide powers of discretion to effect solutions for breaches ofthe code of conduct Page 37 of 120 Antonn Brown, B.A. (Hons), LL.B., M.Sc. hitpy/-JAMAICA2CANADA.com ‘Study & Work in Canada to Earn Citizenship.‘The process of disciplining lawyers entails: 1. Abbreach of the code of conduct of an atormey-at-law;, 2. A hearing by the legal organization that lays down the code of conduct to effect a solution, such as: Conciliation, Investigation, and ‘Adjudication for negligence or malpractice; and Sanctions for breaches, which includes fines, suspensions or being disbarred from practicing the profession. pose In FORD v THE LAW SOCIETY, a solicitor received funds by cheque for a particular transaction, deposited it to his account and issued to the complainant in respect ofthe said transaction a cheque for an ‘amount which should have come from the same fund, but the cheque was dishonoured. The Disciplinary ‘Commitee after an inquiry found a case of professional misconduct, and referred it to the High Court. The High Court found Ford’s misconduct so gross and struck him off the Roll of Attorneys. In RE NILES [1993] the client gave the attorney money to purchase land, The attorney never completed the transaction after a long time and failed to turn over the funds to another attomiey who the client retained to complete the transaction. The inary Committee investigated and found professional misconduct. ‘The committee referred the matter to the High Court and this court found Niles guilty and thus he was removed from the Roll of Lawyers. (Code of Ethics A code of ethic guides lawyers pursuant to the doctrine of discipline regarding their behavioural patterns ‘and mannerism. Certain rules governing the ethical behaviour of lawyers include: ‘© Acting with integrity in discharging duties owed to clients, the court and other members of the profession and the public; ‘Tobe competent; Tobe conscientious, diligent and efficient; Tobe honest and candid when advising clients; Hold striet confidence in all information concerning the business and affairs of the client in the ‘course of the professional relationship; Respect for Lawyer-Client confidentiality; Avoid conflicts of interest; ‘Always address the judges as Madam, Sir, Your Honour; ‘Address the Magistrate as your Worship; ‘Never put your briefcase on the Bar Table; [Never stand when another lawyer is standing; "Never represent to your client that they have a good case when they do not; and Always acquaint yourself with the law as it pertains to your client's matter. Disborment ‘The ultimate sanction is disbarment, in which the lawyer is no longer a member of the legal profession, ‘which may result from the offences of: Financial Matters 1. Misusing funds that a lawyer holds in trust for clients; 2. Failing to apply clients’ funds as directed; 3. Obtaining money from clients for fietitious disbursement; 4, Falsely stating that disbursements have been paid; Dishonesty 5. Subomation of perjury in a witness; 6. Committing fraud; 7. Deliberately deceiving or misteading the Court 8. Abuse of the judicial process; Page 38 of 120 ‘Antonn Brown, B.A. (Hons.), LL.B., M.Sc. http: JAMAICA2CANADA.com ‘Study & Work in Canada to Ear Citizenship.9. Using an affidavit known to be false; ywful Conduet 10. Willfully acting without authority; II. Tampering with a witness; 12. Tampering with the jury; 13. Assisting a criminal to escape the country; 14. Forgery; 15, Failing to comply wit 16. Bribery; and 17. Malicious conduct order of the court; 3.2 The Role of the Ombudsman ‘The Office of the Ombudsman addresses the issue of affording access to justice for an aggrieved dividual. It is established by the Constitution or Acts of Parliament. The Ombudsman is appointed by the Head of State after consultation with the Prime Minister and Leader of the Oppositions. As such, the ‘Ombudsman is high-level official acting as an agent of Parliament. The Ombudsman adjudicates over issues of maladminstration and injustice without the costs and trappings of judicial power. It is more informal than traditional court system. It is provided at no cost to the complainant. It is seen as making the government more transparent of the decision making process. It bridges the bureaucracy of the government with the citizenry. It is also to address issues that are not adequately handled by the courts to stop the abuse ofthe State. The Ombudsman is authorized to assist partial control of execution by use of non-inguisitorial methods and powers. The Office allows for the application of Jaw and morality in an adversarial justice system. Investigations are private in nature and entail inspecting documents and interviewing public officials, ‘The Office may require officials to supply information unless it is prejudicial to the interests of the state The Office gives reports to explain the result of the investigation and reasons. State injustice, improper, unreasonable and inadequacies are exposed. Recommendations are made to address or remedy the situation, The report is given to the complainant and the relevant government agency, department or authority. Examples of recommendations include: changing the law, giving compensation, disciplining officers, apologies or reference to the Department of Public Prosecution ‘The Office of the Ombudsman is 1. Address inj 2. Protect citizens from abuse of the state; 3. A watchdog for abuses of fundamental rights; and 4. Armediator between the citizen and the state. Powers and Functions of the Ombudsman The functions of the Ombudsman include: 1, Conducting investigations (at the request of a private citizen or Minister of Parliament or the initiative ofthe Office) about: ‘a. Any course of conduct or anything that is done or omitted by any exercise of administrative functions of the government, department or authority, such as an injustice or maladminstration, improper, unreasonable, inadequate administrative ‘conduct; b. A complaint of a contravention of any fundamental right or freedom guaranteed by the Constitution; Making recommendations to the Head of State; Informing the partes ofthe sustained injury and reasons forthe opinion. Fumishing a report to the Assembly should NO action be made in reasonable time to remedy the injustice based on the recommendations; and Page 39 of 120 Antonn Brown, B.A. (Hons), LL.B., M.Sc. http: JAMAICA2CANADA.com ‘Study & Work in Canada to Earn Citizenship.Furnishing an Annual General Report to the Assembly regarding the performance of functions. Benefits ofthe Ombudsman ‘The Ombudsman is empowered to investigate and report of findings. The expansion of government departments has adversely affected the public. However, maintaining conirol over the population is even ‘more important as the population increases. The role of the ombudsman is a protector of the citizens against the inherent abuses of public administration. It is an additional weapon to protect the citizen's rights against administrative effort, inefficiency and abuse of power. Benefits of the Office of the Ombudsman include: 1. Reduced costs; 2: Speed: 3. Investigative expertise; 4 Objectivity, 5. Reform; 6, Decrease matadminstration; and 1. tnorease accountability Jurisdiction ofthe Ombudsman ‘The jurisdiction of the Ombudsman to investigate complaints of injustice suffered by citizens caused by GOVERNMENTAL or ADMINISTRATIVE MATTERS of: 1. the Prime Minister, 2. Minister, Government Office, Department or Authority Public Body, Bodies funded by public funds, Bodies appointed by government, Private bodies having influence over the publi suchas: Unfair or incompetent administration, Undue delays, Standardless discretion; Bias, Discrimination, Harassment, Negligence, Failure to follow procedures, Failure to give proper advice, or . Breach of the rule of law. ‘A complainant may sustain injustice by the fault of an administrative authority. A member of the House may refer the Office to a sustained injustice or the Office may chose to Investigate a matter in which injustice was sustained. The complainant may be any person oF business entity. The Office does NOT have the jurisdiction, if courts cam settle the matter. There is discretion of the Office to investigate matters if there is no other recourse. However, a government agency or public authority would NOT have standing. Moreover, frivolous and vexatious complaints are discarded based on the discretion of the Ombudsman or where the complainant had knowledge of the dispute for more than twelve months before filing a complaint. Different Offices of the Ombudsman Different types of Offices of the Ombudsman include: 1. The Utilities Ombudsman; 2. The Political Ombudsman; 3. The Parliamentary Ombudsman; and 4. Ombudsman for Contracts. Page 40 of 120 Antonn Brown, B.A. (Hons.), LL-B., MSe. http:/JAMAICA2CANADA.com Study & Work in Canada to Eamn Citizenship.i. Utiites Ombudsman ilities Ombudsman has the power to intervene in disputes relating to the following agencies © The National Water Commission; ‘© The Post and Telegraph Department; © AirJamaica Ltd; and © The Jamaica Public Service Commission. ‘The matters include: excessive or incorrect bills for utilities, defective meters, improper or unfair disconnections, unavailability of services, inadequate street lighting, illegal telephone calls, estimated billing; and lost ngeage. ii, Political Ombudsman There may also be a Political Ombudsman that deals with political matters. In Jamaica, the office addresses the high incidence of political violence. It is an attempt to have a conciliator to reduce political terror and conflict. Parliamentary Ombudsman ‘The Parliamentary Ombudsman deals with matter relating to governmental agencies in general and some statutory agencies. They may help change laws though advocacy or identify serious flaws in public policy. The Office may target: ‘* Local authority for publi services or local government; ‘+ Authority approved by the government or based on public funds; ‘+ Authority empowered to determine a person's contractual rights with the government; oF ‘© Other authorities prescribed by Parliament. iv. The Ombudsman for Contracts The Ombudsman for Contracts deals with eivil disputes between parties and determines the liability between the partes regarding breaches of the terms of contracts. ‘The Ombudsman in Jamaica In Jamaica, the Ombudsman may investigate any matter thatthe complainant applies to the Supreme Court for redress under s. 25(1] of the Jamaican Constitution. Constitutions are the supreme law against which all other laws are measured. Any statute may be challenged as being ultra vires the constitution, which ives locus standi to any citizen-this means that citizens would have standing in court to adjudicate the matter. The Ombudsman is allowed to conduct such investigations. Jamaica has several Ombudsmen 10 eal with different areas of administration by public authorities. There is only one Ombudsman in Guyana to deal wth al potential issues which isa strain due to the workload and inadequate resources. ‘The Ombudsman may recommend that an enactment, rule or regulation which causes or may cause injustice to be altered, This encourages investigation into substantive merit of legislative and executive actions and improvement of statute. ‘The Ombudsman in Guyana ‘The original purpose of creating the Office was to address racial upheaval, In Jamaica, the need was based on the political arena, ‘The Annual Repor of the Guyanese Ombudsman states that the office isto: 1. Investigate and resolve complaints of injustice done to members of the public, by a government department and other authority 2. Provide informal, dependable, and accessible service to the public; Page 41 of 120 Antonn Brown, B.A. (Hons), LL.B., M.Sc. hhnp:!.JAMAICA2CANADA.com Study & Work in Canada to Ear Citizenship.‘Treat the public with courtesy, compassion, honesty, and respect their privacy; Educate the public regarding their services, Be ethical, transparent, and accountable; Offer guidance to the public whose complaints are outside of the jurisdiction; and Ensure that the public are treated alike, without discrimination on prohibited grounds, such as ‘ave, place of origin, political opinion, creed or sex. Tera system of wal is an essential clement ofthe democratic process. The purpose ofthe jury is to be the sole judges of the facts, whereas judges determine the law and give sentences. {rauemps (0 secure feimess in te justice system. ‘The system was adopted ffom England. The jury Juries have the following roles: 1 Listen to witnesses; 3. Make decisions based on rules of law and jury instructions given by the judge ofthe respective cases; and Since there is always the possibility of jurors not completing the tril for health or other reasons, often Shine alternate jurors are nominated for high-profile lengthy trials, who will also follow the trial (but Aepot takepart in deciding the verde) a a precaution incase a new juror is needed part way through the tral. Serving on a jury is normally compulsory for those individuals who are qualified for jury service. Since a Jury is intended to be an impartial panel capable of reaching a verdict, there are often procedures and ‘quirements, for instance, fluent understanding of the language, or the ability to test jurors or otherwise ‘exclude jurors who might be perceived as ess than neutral or more partial to hear one side or the other, ‘The jurors hear the eases presented by both the defense and prosecution, and in some jurisdictions a sunmary from the judge. They then retie as group to consider a verdict. The majority required for a verdict varies. For juries to fulfill their role to analyze the facts of the case, there are strict rules about their the of information during the trial. They are not allowed to learn abou the case from any source other then the tral nor can they conduct their own investigations such as independently visting the erimo scene, Parties, lawyers, and witnesses are not allowed to speak with a member of the jury, and jurors are not allowed to read news or other accounts ofthe trial. In high-profile cases, some juries are sequestered for the deliberation phase, ot forthe entre tral, Conversely, jurors are generally required to keep their deliberations in strict confidence. Whether this non-disclosure requirement extends fier the verdict has been rendered depends on the jurisdiction. ‘The | deliberations must never be disclosed outside the jury, even years ater the ease to repeat pars of the tral or verdict, is considered to be contempt of court Because ofthe desire to prevent undue influence on a jury, jury tampering isa serious crime, whether tempted through bribery, threat of violence, or other means. Jurors themselves can also be held liable if they deliberately compromise their impartiality Page 42 of 120 Anton Brown, B.A. (Hons,), LL.B., M.Se. hips! JAMAICA2CANADA.com ‘Study & Work in Canada to Eam Citizenship.ures are used for some criminal trials but not others. Fr less serious offences that come to trial, a judge alone makes the ruling. in some more serious offences, the accused person can choose to be judged by either a judge or a judge and jury. In the most serious offences, such as murder or treason, a jadge and a Jury are always used. Juries are selected according toa specific selection of criteria, Prospective jurors may only be asked certain ‘Questions selected for direct pertinence to impartiality or other relevant maters; any other questions must be approved by the judge. The following qualification wil disqualify a potential juror, namely: LL Isnota citizen; 2. snot atleast 18 years old; 3. Isunable to communicate in the English language; 4. Is not physically and mentally capable of rendering satisfactory service; $. Has been convicted of an offence and has not had ther civil rights restored; 6. Has served as a juror inthe past several years; 7. Isa judge currently serving in the judicial branch of government; 8. Serves in the legislature; 9. Isalawyer, 10. isan officer ofthe la 11. a cour official 12, a sherfYor sheriffs officer; 13, amember ofa police foree: 14. a spouse ofa person referred above: 15. aperson charged with an indictable offence, In WOOLMINGTON v DPP [1935] W and his wife where having problems, so they left the home and Taanee 22 with her mother. W took a gun loaded with two cartridges, which he claimed he brought to frighten her. He planned to tell her that if she did not return with him, then he would kill his went off shooting her in the heart. W may no reply to witnesses after the gun was discharged, He told the Jury that it was an accident and that while he was geting the un form his should, it accidentally sent off ‘The issue ofthe appeal was whether the judge gave a misdirection when he stated thatthe defendant i to satisfy the jury that the killing was an accident. it was held that if they are NOT satisfied that the defendant’ story is tue they must sil acquit. The jury should only convict if they are satisfied beyond ¢ reasonable doubt that itis NOT true. {n SPENCE v R the appellant was frst convicted ofthe murder of John Edwards inthe high Cour in St Vincent and the Grenadines. He appeals and the conviction was quashed. There was a retrial and the ‘ppellant was against convicted of murder. His subsequent appeal was dismissed. the victim within a short handgun, ‘The victim was taken tothe hospital, witee he underwent surgery for the bullet that penetrated and passed through his neck. He died afterwards. ‘The appellant said thot Fawards hit him with a stone, and was about to hit him again when he pulled the gun form his holster ted fired a shot, He also swore the gun had gone off accidentally and that the had not deliberately aimed or ‘ischarged the gun. He pulled the gun out in order to defend himself and frighten the deceased, Page 43 of 120 Antonn Brown, B.A. (Hons), LL.B., M.Se. hutp:/JAMAICA2CANADA.com Study d& Work in Canada to Earn Citizenship.During the tral, one ofthe jurors had obtained permission tobe excused and was discharged by the judge. Another juror revealed thatthe brother ofthe accused had made a communication to her. There was a dispute between two of the surgeons called as expert witnesses, since the surgeon who had carried out the ‘operation on the victim had been eriticized by another surgeon called by the defence by suggesting the ‘medical treatment had contributed tothe death. 1 was held that the discharge of the juror had been an irregularity. The Privy Council would not agree Whether the juror was incapable of serving. The judge made an appropriate enquiry into. the ‘Communication between the brother of the deceased and the other juror, There was no impact ofthis on the Juror or her fellow jurors. The judge was right to continue the trail. Benefits m ‘The benefits of jury systems include: Community Interests 1. A means of interjecting community norms and values into judicial proceedings; ‘An opportunity for citizens to validate criminal statutes in their application to specific trials; ‘The jury represents the conscience of the community from which its drawn; Educating citizens about self-government; The jury system demystifies the court system, in that the law is presented in a manner that ordinary citizens may understand; ‘The criminal justice system continues to have the support ofthe public; In order for the community to accept the decisions of cours as legitimate, far, proper and just, they must identify with the process of justice through participation in the system; Protection of the Accused 8. Provide a more sympathetic and fair hearing because juries are the best judges ofthe credibility of witnesses based on a representative range of backgrounds and experiences of necessity far broader than that possessed by a single judge; 9. Accheck against state power; 10. A safeguard against wrongful conviction; 11. The jury system is the ultimate protection of the individual against oppressive laws and the ‘oppressive enforcement of laws; 12, Prevents police influence in the courts from becoming dominant; 13. Ithas the advantage of collective recall; 14, The scrutiny of collective deliberation; 15. The jury is able to give weight to the individual circumstances and broad equities in the individual case, rather than being constrained by precedent and statute; and 16, The jury can be more impartial than a single judge. Disadvantages of the Jury System Disadvantages of jury systems include: |. For highly emotional cases, such as child rape, the jury may be tempted to convict based on personal feelings and bias rather than on convietion beyond reasonable douls, 2. Juries may be prone to prejudice, stereotypes and bias; 3. There is less predictability, 4. Jury's ability to bend the law without breaking it, 5. Juries are expensive; 6. Jury members donot have the requisite knowledge or training to deal with Complex iaws; b. Complex facts; or ©. Assessing vesses; and 7. Juries generally ste unable to ask questions of witnesses and counsel, and are presented with information in a fragmentary manner. ‘Challenges to the Jury ‘The jury can be challenged, such as: Page 44 of 120 Antonn Brown, B.A. (Hons.), LL.B., M.Sc. http: JAMAICA2CANADA.com Study & Work in Canada to Earn Citizenship.|. Challenge for eause, in which a good reason such as suspicion of bias must be advanced before ‘one may challenge or question a juror for cause; and 2. Peremptory challenge, in which jurors may be challenged without any reason given by the party ‘making the challenge, although there are only limited number allowed for each matter ischargn th It isthe discretion of the trial judge to determine whether prejudice has reached a sufficient level to ‘warrant the discharge a juror. Typical reasons fora jury member may be discharged for. 1. Drunkenness; 2. Miiness; 3. Lateness; and 4. Accepting bribes. Discharging the Entire Panel of Jurors Gi rial jadge may discharge the whole jury panel under any one or a combination ofthe following circumstances: 1. Inadmissible or prejudicial evidence is accidentally given; and 2. A juror is seen communicating to a relative of the other side and has had enough opportunity to corrupt the whole panel Legal aid refers to the legal assistance given to citizens who have litle financial means to retain an ‘atomey in private practice. This may be done inthe form of a formal system or clinic, as well 2s through brvate practices who offer services to persons who may nat be able to pay for tin fall or upfront. Legal ‘aidjcan be contrasted with pro bono legal work which consist of legal services that are offered eompletely free of charge by some private practices. ‘The object of the clinic is to enable person with limited economic means to obtain legal counsel. It is Recessary to provide some level of legal aid to persons otherwise unable to afford legal representation, Failure to do so would deprive such persons of acces to the court system. Alternately, they Would be ere

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