6B LAW NOTES

Unit One

Module 1 – Caribbean Legal Systems

(prescribed text – Cape Law Unit 1 for self study and distance learning)

Nature of Law
Law – An enforceable body of rules that are used to govern a society.

Rule – A general norm mandating or guided conducted or actions in a given type of

situation.

Examples of enforceable and unenforceable rules (see pg. 4 of prescribed text)

- Origins of Law

1. The English Perspective

There was no unified law thus William the Conqueror decreed that there
should be one law (Common Law). The Common Law/Judge made law is a body of
rules developed overtime by judges in the course of resolving disputes between
private individuals or citizens and public authorities.

2. The Caribbean Perspective

Europeans came to the West Indies and brought with them their laws
which they imposed upon the natives, then slaves and indentured servants.
Thus Caribbean territories were eventually ruled by different Europeans
nations. E.g. Spanish, French, Dutch and English.

- Role of law
To bring cohesion to and maintain order within societies.

- Functions of Law
1. To legitimize – granting law making powers to legislatures.
2. To allocate power – determines which individuals in the society are to
exercise power.
3. To order society – governs the relationship between shareholders and directors
rights and obligations.
4. To control individuals – To provide sanctions for certain conducts..
5. To resolve conflicts – associated with the work of the courts.
6. To dispense justice – system of taxation to redistribute wealth.
7. To change society and individuals – underlying social problem.
Theories of law

1. Natural Law
- Law which is shaped by a divine being and thus provides the guidelines for proper
moral behavior to be exhibited and practiced by mankind. E.g. the ten
commandments.

2. Positive law
- Law created by the sovereign or state and which must be obeyed even if and when it
is unjust or repressive.

Features of Natural and positive Law

Natural Law Positive Law

Emanated by a divine being
Set guidelines for the morality of the society’s
behavior.
Penalties may not be awarded for not obeying
natural law.
Created by sovereign or state.
Laws must be followed whether it is unjust or
oppressive.
Penalties are awarded for disobeying those
laws set by the state.

Law and Religion

Religion – recognition on the part of man of some higher unseen power as having control of his
destiny and as being entitled to obedience, reverence and worship.

Christianity is the main religion which was influenced by English Law and helped to shape the
morality of Caribbean people. E.g. thou shalt not kill etc.

Influence of the Religious rule

- ‘One should love one’s neighbor as one love one’s self (Neighbour Test)

Cases: Donoghue vs. Stevenson

Hyde vs. Hyde

Law and Morals

Morals (Ethics) – Conduct concerned with what is deemed right or wrong. OR

- Beliefs and values which are shared by a society or a section of the society.
e.g. in respect of : sexual relationships
money transactions
attitude towards family, friends and strangers

- Moral Values are also social values in that it states how we should conduct ourselves
in relation to others e.g. taking off a hat in a building or sneezing while covering the
mouth.
- Moral Values can be enforced while social values are not enforced.
- Law and Morals exist to uphold the rule of proper social behavior.
- While Moral rules are not always backed by sanctions or penalties which make some
legal rules enforceable, it is however reinforced by pressure which in some cases are
very strong.
e.g. Disapproval of family and friends
Loss of status
Shunned by society.

Natural Law theorist argue that law should reflect morality.

Cases: Shaw vs. DPP

R. vs. Knuller

R. vs. Thomas & Grin

* Law, Morality and Religion can be intertwined e.g. Same sex marriages

SOURCES OF LAW
where the law can be found

1. Constitution – Literary Sources

2. Legislation and Interpretation by the Courts – Legal Sources
3. Common Law – Historical sources
4. Equity
5. Judicial Precedent
6. Customs and Conventions
1. CONSTITUTION

- A composition of laws put together by government/parliament

- The constitution of a country declares itself to be the law of the land and is the most
premier legislation of any country in the Commonwealth.
- Any other law inconsistent with the constitution is said to be null and void.
- The Bill of Rights establishes the basic principles upon which democracy is based.
- It establishes and regulates various social institutions which make up the democratic
system. i.e. service commissions – this commission/institution has the right to appoint
and remove public bodies.
- For the constitution to be amended, this must be done by parliament through the bill
of rights. Included in the bill of rights are the fundamental rights of individuals that
are set out and can neither be violated by parliament or any other state authority.
e.g. the right to life, liberty, property, express opinion, freedom of religion etc
- The constitution, based on its contents is used by courts and lawyersto protect citizens
rights and to preserve the rule of law.

2. LEGISLATION AND INTERPRETATION BY THE COURTS

LEGISLATION

- The process of making laws

Types of legislations

a. Primary
- Laws made by parliament
- It is the most important source of law
- It comprises members of the ruling party, the opposition and the Governor General
e.gs. Criminal Law Act of Guyana and the Gun Court Act 1974 of Jamaica

b. Secondary

- involves the process where legislation is made by parliament appointed agencies.

e.g.the service commissions
- The Government authority or functionary is given power by parliament to make such
legislations.
e.g. The Motor Vehicle and Road Traffic Act.
 Procedures involved in making a Legislation

Green Paper White Paper Bill

- Green Paper – contains ideas about a particular subject published by government.

- White Paper – amends from the green paper and shapes the governments policy in the
form of legislation, made by the comments of the public.
- Bill – document containing the various provision on which the members of
parliament makes its decision. For it to become a law, decision has to be made by
both the upper and lower house.

INTERPRETATION BY THE COURTS

- Laws applied by judges or the court.

- To avoid obscurity and ambiguity the court follows the following rules:

I. Literal Rule – Allows that the words/phrases in a statute be given their literal
meaning.
Cases: Baptiste vs. Alleyne
R. vs. Ramsonahai and Duke

II. Golden Rule – provides that the literal meaning of the words of the statute give
rise to ambiguity.
Case: Davis vs. R

III. Mischief Rule (the Purposive Rule) –The Judge uses his interpretation by using
what the law was before to decide on his ruling.
Case: R. vs. George Green

3. COMMON LAW

- In medieval times, common law was the only law practiced in England.
- A claim before the court could ony be possible by way of a writ.
- A writ is a sealed letter issued in the name of the king and ordered a named person
e.g. the sheriff to do whatever the writ specified.
- The writ system was so designed that only certain or limited cases could be tried.
- If a claim was not found in the writ system then a petition (written request) would
have to be made to the king.
- The limitations and harshness of the common law were so severe in that the king
appointed a Lord Chancellor (king’s advisor or king’s conscience) to hear cases.
- The only remedy available was Damages (monetary compensation).
 - The king decided to have a division to hear cases outside of common law called the
Chancery division.
- This division decided to bring remedies to persons based on fairness and justice
because of the disadvantages of the writ system.

Disadvantages of the Writ System

i. Only a limited number of cases could be tried.

ii. The procedure was tedious, if an error was made, it had to be done all over again.
iii. The only remedy available was damages.
iv. It lend itself to corruption and bribery.
v. The system was harsh and unfair.

4. EQUITY
- Equity came about because of the harshness of common law.
- Equity means fairness and justice or what is morally just.

Maxims of Equity
(Sayings which have developed that illustrate the way in which the body of law (equity)
will be applied.)
 Equity does not suffer wrong to be without remedy
– ability to create a new remedy where none existed under common law.

 Equity does not assist a volunteer

– a specific performance to compel a person to do something will not be granted
to a person who has no consideration for it.

 He who comes to equity must come with clean hands.

– a person must have a clear conscience and must have done no wrong with
respect to the matter before the court.

 Equity looks to the intent and not the for

– looks at the intention of the person and not the outcome of the situation.

 Equity acts in personam rather than in rem.

– the benefit goes more to the person rather than the property.

 He who seeks equity must do equity. (similar to clean hands)

Remedies available to Equity were:
i. Injunction – stop order
ii. Order of specific performance

Eventually matters of common law and equity were tried in the same court and persons could
receive both remedies available to both courts, thus new remedies were available under Equity.

A. Rectification – to adjust a situation or make right.

B. Restitution – restore to original owner
C. Anton Piller Order – preserve intellectual property.
D. Mareva injunction – prevent the removal of assets.
E. Trust – property conveyed to trustee; to compel the trustee to administer the property to
the beneficiary.
F. Principle of Estoppel – To disallow persons with unconscionable behavior to allow others
to suffer a detriment.

Reception of Common Law and Equity

- Possible through the act of colonization of individual territories by Europeans, where

these laws were brought with measures of forming control in the islands.
Cases: The Demerara Turf Club and Phang
American Cyanamid vs. Ethicon
Coosals Quarry Ltd. vs. Teamwork Ltd.

5. JUDICIAL PRECEDENT

- Decisions made by the higher court must be followed by the lower court.
- For precedent to be applied, both cases must be of similar nature.

Types of Precedent

1. Persuasive
- Legal principles contained in judgements which merely offer guidance. (not binding)
- Originate from courts lower in the hierarchy and the decisions of courts in other
jurisdictions. (lower courts follow other lower courts)

2. Binding
- The lower court is under an obligation to follow the decision of the higher court but
the lower court is only bound if the case is based on similar facts and principles.
 Terms associated with the use of Precedent

1. Ratio Decidendi
The reasoning/reason upon which a court use in order to arrive at its decision.

2. Obiter Dictum
“Things said by the way”. Something said by the judge that is not essential to the
decision of the case but it might become a persuasive authority in a later case.

3. Stare Decisis
Let the decision stand.

4. Distinguishing a case
A previous case is distinguished when the reasoning upon which it turns and its facts and
circumstances are different from those in the case now being tried in the court.

5. Over-ruling a case
Setting aside of the decision of an earlier case. A court can only overrule the decision of a
lower court.

6. CUSTOMS AND CONVENTIONS

CUSTOMS
- Arises out of social norms and practices of people.
- Custom is not written. It is a system of law that is known to the community,
practiced and passed on from generation to generation. It has its own values and
norms.
- Laws which evolve from customs are more likely to reflect the social reality of which
they are a part, however arguably in the Caribbean, our laws have never reflected our
custom.
- Colonization and Slavery saw to it that the customs which were brought by African
slaves and Asian indentured labourers did not survive meaningfully; similarly,
customs of original people e.g. the Amerindians were lost.

Characteristics of Customs

- It must be an exception to the Common Law

- It must be confined to a particular locality e.g. parish, county, borough, town or district.
Customs in Certain Region

Guyana
- Rights over village lands should be retained by the village communities and alienated
to outsiders (unwritten law of the village) e.g.if a village woman marries an outsider,
her family conveys land to her rather than the husband to avoid alienation.
- The children property act found in Guyana is similar to Bahamas where it is called
generation property and in Jamaica, called family property.
- Despite some successes, customs continues to be rarely identified by the courts.

CONVENTIONS

- Arises out of social norms and practices of peole.

- It is a well organized constitutional practice.
- Unlike custom, convention is not limited to any particular location but instead to a
particular activity.

Types of Convention

1. Codified – written practices found in the constitution (transformed into hard law and are
enforceable). Some of the written conventions are contentious e.g. parliamentary
privileges. The Governor General (GG) must agree(consent) to legislation before it is
passed and the prime minister must consult with the GG on matters of the state. (this is
rarely practiced).

2. Non-codified – Not written in the constitution but it is expected to be practiced.

e.g. kerosene must not to be sold after 6 p.m.

Both custom and convention must be recognized by the legal system before they are deemed to
be law.
While conventions represent aspects of English social practice, custom in the Caribbean may, if
allowed reflect the indigenous practices of the region.

CLASSIFICATION OF LAW
(a systematic way of organizing law)

Ways of Classifying Law

1. By Subject Matter
e.g. Tort, Contract, Real Property and Criminal Law

a. Tort – a civil wrong , its aim is to compensate the victim. e.g. Nuisance, trespass,
defamation etc. The main remedy available is damages to the injured party.
 b. Contract – Legally binding agreement between persons with an intention to create
legal relations.

c. Real Property – Anything that can be owned. A freehold interest in land.

d. Criminal – Forms of conduct that attracts punishment.

A public offence against the state.
The criminal charge is to punish the offender.

2. By Function

a. Substantive – Those rules which guides the court in making decisions e.g common
law and other sources of law.

b. Procedural – Those rules which determine the course of an action such as:
- How the case is to be framed
- In what court the case should be tried
- When the case is to be tried

3. Conceptual

a. Private Law
- Concerned with legal relationship of ordinary persons in everyday transactions.
- It includes Law of Torts, Contract and Property.
- The offender is not normally sent to prison.

b. Public law
- Concerned with the constitution and functions of the many government organizations
including local authorities.
- It includes constitutional law, administrative and criminal law.
- The offender is normally sent to prison.

Reasons for Classification

1. It brings a uniform set of research, precedent, experiences and procedures to bear on a

case.
2. It gives attorney at law the ability to know exactly where to conduct the research that will
contain solutions to specific problems.
3. It makes available, a variety of options to clients and attorneys in their attempt to seek
redress. (refer to pg. 22 of prescribed text of activity 2.2 and example)
4. It helps us to know the remedies available under the law.
STRUCTURE AND HIERARCHY OF CRIMINAL AND CIVIL COURTS

1. The Judicial Committee of the Privy Council/The Caribbean Court of Justice (CCJ)
2. Court of Appeal
3. The High Court of the Supreme Court
4. The Full Court of the High Court
5. The Family Court
6. Juvenile Court
7. Magistrate Court
8. Industrial Court

1.
JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

Is the highest legal system of a commonwealth Caribbean Country except Guyana. It is

found in the United Kingdom (UK) and headed by men judges, who are members of the
House of Lords (the highest court in England). For a case to reach the Privy Council, the
court of Appeal has to grant permission (give leave to appeal) and this case must involve
a serious offence.

Advantages of the Privy Council

1. Lack of political independence: Judges of the Privy Council are dispassionate about

regional politics, not being residents of the Caribbean, regional judges are less likely to
be so and may become polarised, serving the interests of their individual governments.
2. The Privy Council offers its cadre of judges and facilities free of cost to its former
colonies.
3. Quality of judges: A non-argument if ever I heard one, but I will relay it nevertheless.
There is also a school of thought that the Privy Council offers an unmatched cadre of
high-quality learned judges, which any regional model would not be capable of matching.

Disadvantages of the Privy Council

1. Sovereignty:  It is a compromise of sovereignty to leave that decision to a court, which is
part of the former colonial hierarchy, a court in the appointment of whose members we
have no say”.
2. Lack of understanding of Caribbean dynamics and culture: The Privy Council is heavily
influenced by precedents established by the English House of Lords (now Supreme
Court). Many in the region view this influence as the reason judges of the Privy Council
have, in recent times, in their rulings on death penalty appeals, invariably adopted an
anti-death penalty stance, with the end result that the death penalty has effectively been
abolished in Commonwealth Caribbean territories without legislative intervention as
should have been the case.
3. Privy Council is burdened with appeals from other Commonwealth jurisdictions.
4. Cost: While the alternatives may be less costly to litigants to access, they will cost more
to the Jamaica Government, which has to contribute to the operations of the CCJ, and a
local Final Court of Appeal would have to be solely financed by the State.

CARIBBEAN COURT OF JUSTICE

This is the regional judicial tribunal of last resort in the Caribbean. Its main reason for
introduction was because the independent countries want to be independent and deal with
their own businesses by themselves, thus the introduction of the Caribbean Single Market
Economy (CSME). This body is an arrangement which allows caricom goods, services,
people and capital move throughout the Caribbean Community without tariffs and
restrictions to achieve a single larger economic space. The CCJ has to follow the Treaty
of Chaguaramas(1973).

Establishment of the CCJ

1. The Jurisdiction
 a. Appellate -For a matter to reach this jurisdiction, it has to be tried in a lower
court first, whether it is a civil or criminal matter. The Court of Appeal has to
give ‘leave of appeal’ for the case to be heard at the CCJ.

b. Original - These cases have never been heard in lower courts mainly because
this is where international cases are dealt with.

2. The decision of the court is final.

3. The government of the contracting party in whose territory the seat of the court is
situated, shall provide suitable accommodation for the seat of the court.

4. The seat of the court shall be in the territory of a contracting party as determined by a
qualified majority.

5. They shall have and use as occasion may require, a seal having a device or impression
with the inscription “The Caribbean Court of Justice”.

Constitution of the Court

1. The judges of the court shall be with a president and not more than nine (9) judges of
whom at least three (3) shall possess expertise in international law.

2. The number of judges excluding the president may be increased by order of the president
with agreement from the heads of government.

3. The court shall be constituted if it consist of not less than five (5) judges and where the
number of judges inclusive of the president is less than ten (10).

4. The president or the other judges can be appointed or removed by majority vote.

Differences between the CCJ and the Court Of Appeal (COA)

1. New cases can be presented to the CCJ while in the COA all cases have already been
heard.
2. Decisions made by the CCJ are final while in the COA decisions made can be changed by
the CCJ or the Privy Council.

Advantages of the CCJ

1. Since the privy council both geographically and culturally removed from the
Commonwealth Caribbean experience, they are not fully equipped with the knowledge
 and level of understanding required to make decisions which reflect sensitivity for
Caribbean people.

2. The CCJ will foster a greater sense of security and stability in the region.

3. It eliminates the possibility of conflicting decisions coming from other international

courts.

4. Member states and foreign investors will feel secure in the knowledge that there is one
highly respected court in the Caribbean ensuring fairness.

5. The CCJ will be the only court responsible for the interpretation and application of the
Treaty of Chaguaramus which created Caricom.

6. There are enough members of the legal profession possessing the requisite degree of skill
and integrity to occupy positions within the CCJ.

7. Though a decision handed down by the CCJ acting its original jurisdiction may not be
enforceable, it is believed that sanctions and pressures brought to bear on a disobedient
state (party) to a decision of the CCJ will be enough to ensure compliance.

Disadvantages of the CCJ

1. The Privy Council is properly and satisfactorily functioning as the final court of Appeal
for the Caribbean countries/territories.

2. There may not be available in the Commonwealth Caribbean, enough judges of the level
of instruction and skill to enable them to function effectively at the level of the CCJ.

3. The decisions of those judges appointed to the CCJ may be of poor quality.

4. Adequate and sustainable funding for the running and maintenance of the CCJ may not
be forthcoming from member states.

5. The judges of the CCJ may be vulnerable to political manipulation from member states.
2.
COURT OF APPEAL

- This is the highest ranking locally based court, in the absence of the CCJ. They can
send back a case to the higher court for re-hearing.

- Access to the court of appeal is entirely dependent upon the grant of such a right by
an act of parliament.

- Usually a panel of the Court of Appeal comprises three (3) judges, two (2) of which
hear appeals from the Magistrates’ Court. The case is first tried in the High Court
and if a satisfactory decision is not reached, it is then sent to the Court of Appeal.

3.
SUPREME COURT

- Decisions are based on the Common law. They are headed by single judges
appointed in accordance with the provisions of the constitution. This court is a court
of unlimited jurisdiction i.e. it has the ability to deal with disputes of every kind. This
High Court has no jurisdiction over:
1. Crimes which are required to be tried before a magistrate.
2. Cases of offences triable either summarily or an indictment, which the
prosecution and defendant have agreed that it should be tried. (Both the defendant
and plaintiff agrees to take the case to the high court)
3. The Industrial Relations act.

4.
FULL COURT
This high court is also empowered by Common Law and it is a court of inherent jurisdiction. i.e.
It is also the court of Appeal for decisions from the magistrate Court.

5.
FAMILY COURT
Only certain countries have a family court. Its mission is to provide a fair, speedy, economical
and accessible forum for the resolution of matters involving family and children.
a. Children matters
- Delinquency - Adoption - Status Offence
- Guardianship - Detention - Abuse and Neglect
- Termination of parental Rights
b. Domestic Relations
- Divorce - Child Support - Custodial Matters
- Paternity - Adult abuse cases

c. Domestic Violence
- Civil restraining orders involving family members are dealt with.
A person charged with the offence of this abuse is called a felon.

6.
JUVENILE COURT

The authority charged with the disposition of legal actions involving children. This court covers
a wide variety of acts by children under the age of 18 as well as action by adults that concern
children. The juvenile court hears cases that involve non-criminal behavior such as truancy and
child abuse.

Procedures of Juvenile Court

1. The police make an arrest.
2. The parent or guardian or school official is contacted.
3. The officer decides if the case should go to court.
- If the case is to be heard formally, a petition is made to the Juvenile Court.
- If the juvenile pleads guilty, a rehabilitation program is put into consideration. (boys
or girls home).
- If he pleads not guilty, an adjudicatory hearing is held. If allegations are not proven,
the case is dismissed. If proven however, the child is deemed an offender or
delinquent.
- If offences are minor then the judge may resort to:
a. Counseling
b. Youth service agencies
c. Mental Health clinics
- If offences are serious, there is a court trial which could result in a life imprisonment
sentence.

7.
MAGISTRATE COURT
This court is the most important of all inferior courts and have limited jurisdiction especially
those concerning family matters. It is also known as the people’s court. The importance of the
Magistrate Court includes the volume of matters it determines and the variety of population who
come in contact with the justice system.

In Jamaica, there is a Resident Magistrate Court for every parish. This court presides over both
civil and criminal matters. The divisions of the Resident Magistrate (RM) Court are:
1. The Family Court
2. The Juvenile Court
3. The Traffic Court
4. Gun Court
5. Small Claims court
6. Drug Court
7. Night Court

The Civil Jurisdiction deals with:

1. Recovery of rent
2. Separation orders
3. Maintenance of Spouse or child
4. Rectification of errors on Birth Certificate
5. Breaches of Contract

The Magistrate Court has no power to hold a trial for certain criminal offences including murder
and rape etc. The purpose is to determine whether the evidence is sufficient for the accused to
stand trial at the Supreme Court.

8.
INDUSTRIAL COURT

This is also referred to as the Industrial Dispute Tribunal (IDT). It is a subsidiary under the
Ministry of Labour. The jurisdiction of the Industrial Courts are:
1. Determines the majority union in any form.
2. Register agreement made between unions and employer.
3. Settle industrial disputes.

LEGAL PERSONNEL

1. Attorney General (AG)

 In most common law jurisdictions, the Attorney General is the main legal advisor to the
government and he/she may have executive responsibility for law enforcement or
responsibility for public prosecutions.

Functions

The AG carries out various functions and powers and may initiate or intervene in certain
legal proceedings of a public nature. The AG department is responsible for the
following:
a. Representing government and its officers in judicial and quasi matters.
b. Negotiating both local and international agreements.
c. Advising the government ministries and department on legislation and legal questions
affecting the business of government and representing government in all forms of
civil litigations.
d. Instituting proceedings to prevent the continuation of public nuisance.

2. Director of Public Prosecution (DPP)

The DPP is the officer charged with the prosecution of criminal offences in several
criminal jurisdiction around the world.

Functions

a. Advising the police and government department on criminal matters.

b. Appearing on behalf of the crown or state in all criminal appeals.
c. Performing various or other duties defined by statute and the constitution.
d. Prosecuting criminal cases in the Supreme Court, Gun court and the Resident
Magistrate Court.

3. Puisne Judges

These are high court judges. The word puisne means junior and is used to distinguish
high court judges from senior judges sitting at the court of appeal.

4. Court Marshall
 These are persons who officially assemble under the authority of law, at the appropriate
time and place for the administration of justice.

5. Chief Magistrate

The word magistrate denoted one of the highest government officers with judicial and
executive powers. Today in common law systems, a magistrate has limited law
enforcement and administrative authority. In civil law system, a magistrate might be a
judge in a superior court. The magistrate court might have jurisdiction over civil and
criminal cases.

6. Registrar

Is a qualified attorney at law and possesses the status of a puisne court judge.

7. Bailiff

An officer of a court (usually a county court) concerned with the services of the court.
Functions includes enforcements of warrants and authorizing the seizure of goods of a
debtor.

8. Barrister

Is a lawyer found in many common law jurisdictions that employs a split profession in
relation to legal representation. Barristers often only become involved in a court case
once advocacy before a court is needed by the client.
Barristers are also engaged by solicitors to provide specialist advice on points of law. A
Barrister is not an attorney and is usually forbidden either by law or professional rules
from conducting litigations. This means that while the barrister speaks on the client’s
behalf in court, the barrister does so, when instructed by a solicitor.

9. Solicitor

(not to be confused with the solicitor general)

Solicitors are lawyers, who traditionally deal with any legal matter apart from conducting
proceedings in courts.

10. Law Clerk

Is the person who provides assistance to a judge in court and research issues before the
court.

11. Police Prosecutor

 Is a lawyer employed by the police to present cases in the district court as the council for
the prosecution. He may be a sworn member of the police force (normally a sergeant) or
in larger courts a civilian lawyer employed as a non-sworn member of the police force.

12. State Attorney

A lawyer appointed or elected to prepare cases for a U.S. state and represents the state in
court.

13. Orderlies

Are Peace Officers in the magistrate court. Their functions are similar to the Court
Marshall, whose duty is to carry out judgement in a court of law.

14. President of the Court and Chief Justice

These persons are responsible for presiding over the High Court of the Supreme Court
and the Full Court of the High Court on a daily basis. They are further responsible for
the distribution of cases to various judges.

15. Appellate Judge

Is the head of the Appellate Court. He or she presides over the appeal cases whose
judgement may differ from that of the previous trial court.

In the legal system, you have prosecutors and defense attorneys. They usually clash in trials in
which a defendant’s guilt or innocence is established.

16. The Prosecutor

The legal party responsible for presenting the case against an individual suspected of
breaking the law in criminal court. Other roles include:
a. To uphold the constitution, without having any interest in convicting the innocent.
b. To bring forth credible evidence ( prima facie).

The role of the prosecutor excludes any notion of winning or losing but that justice
should prevail. They should therefore seek to prosecute impartially. The prosecutor
should refrain from using improper methods to produce a wrongful conviction.

Cases: R. vs Bank

R vs. Paraskwa

17. Defense Counsel

 The person who represents the defendant and tries to drop all charges if possible. They
are not suppose to encourage clients to carry out illegal actions. The Defense attorney
must use all means at his disposal to ensure his client’s acquittal. If the Defense counsel
knows of some credible evidence it should be brought to the court.

Case: R. vs. McFadden and Cunningham

Plea Bargain
A negotiation brought by the Defense Counsel to the Prosecutor for lesser time or charge.
The prosecutor ought to accommodate the Defense Counsel and not to be concerned with
winning.

Plaintiff – A person who carries some one to court.

His/Her lawyer is the Prosecutor.

Defendant – The person taken to court by the Plaintiff or injured party.

His/Her lawyer is the Defense Counsel.

Training of Lawyers

The lawyer has to undertake a three (3) year course in order to btain a law degree, then do an
additional two (2) years in order to pass the Bar exam in order to be a lawyer and practice in a
court of law.

Discipline of Lawyers

The discipline of members is done by an organization in each state. The organization lays down
a code of conduct (ethics) and breach of which renders the member liable to varying sanctions
including being de-barred from practicing the profession.

Case: Forde vs. Law Society

Re Niles

THE JURY SYSTEM

 A Jury is a group of persons elected by the court to oversee and observe facts and make a
judgement.
OR
A Jury is a body of persons who are judges of the fact stated in a trial.

Persons on a jury are called Jurors. Twelve (12) persons make up a jury. There are also three (3)
alternate jurors.

The Jury Commission

This commission comprises of three (3) persons. A president judge of the court who serves as
chairman and two (2) jury commissions, who are elected by the people to serve for a period of
four (4) years. Each of the jury members must be a member of a different political party.

Types of Juries

1. Grand Jury
- This jury only hears the prosecution side. If sufficient evidence is provided, the case
is brought forward to the Trial Jury.
2. Trial Jury
- This jury hears both the prosecutor and the defense counsel and make the decision
based on all evidence presented by the litigants (plaintiff and defendant).

Selection of Jurors

1. Your name must be on the voters list or the person can have a TRN.
2. Jurors must be 18 years or older.
3. Must be literate.
4. There must be NO criminal record.
5. Must be physically and mentally righteous.

Challenges to the Jury

1. Pre-emptory challenge
- An objection to a juror for which no reason may be given, upon which the court must
exclude such juror.
- It can be used by either party and can be orally done.
- Up to 20 persons can be dismissed from each side and up to 6 by the government in
case of a death trial.

2. Challenge for cause

There is a reason for the objection of a juror. Such reasons include:
 a. The juror does not have the qualification of jury service.
b. The jury is related by blood to the litigants of the trial.
c. If you are a witness to the incident for the trial.
d. If you are an attorney representative.
e. The juror has served on a former jury which have similar evidence concerned with the
case.
f. The juror has a state of mind that will cause him or her to be unfair or partial.

Voir Doire
- A method used to check on the background of the jurors.

Sequestering of a Jury

The Jury is taken away from society for weeks or months in cases like murder. They cannot be
in contact with elements of the world e.g. t.v, radio, newspaper, internet etc. However conjugal
visits are allowed.

Discharging cases and the verdict

The Court of Appeal will overturn a verdict, if it is found to be unsafe, unsatisfactory or the
judge did not effectively instruct the Jury.

Reasons for discharging a member of the Panel of Jurors

a. Drunkenness
b. Illness
c. Lateness
d. Accepting bribes

When a juror is dismissed, they are replaced by the alternate jurors who have to meet all the
criteria for selected jurors.

Discharging of the Entire Panel of Jurors

a. If inadmissible or prejudicial evidence is accidentally given.

b. If a juror is seen speaking to a relative of either side and he/she has had enough
opportunity to corrupt the whole panel.

Advantages of the Jury System

 1. Lack of legal training on the part of jurors, allows them to bring to the trial a fresh
outlook as opposed to the professional opinion of the judge who may have become
harden after years of experience.

2. The size of the Jury – in that it is unlikely that individual prejudices could significantly
affect the verdict.

3. The Jury’s verdict is an expression of the communities conscience in that it represents the
society’s ideas and feelings on particular issues.

4. A jury is to judge facts and not law, therefore the best person to judge facts, defendants
character and the common sense matters is the common man.

5. Trial by Jury is more than one wheel of the constitution; it is the lamp that shows that
freedom lives.

Disadvantages of the Jury System

1. The judge can misdirect the jury thus the process is flawed. The jury must be able to
follow the judge’s instruction. They must look at the facts and not the law, thus the jury
is not able to appreciate the distinction, the jury process is corrupted.

2. Illiteracy and low educational levels are major problems/obstacles to the proper
functioning of the jury system.

3. Jurors are too easily swayed and use sympathy rather than hard facts or evidence. e.g.
police brutality cases.

4. Members of the legal profession tends to hold the jury system with low esteem, thus
undermining the confidence in the ability of the legal system to deliver justice.

ALTERNATIVE DISPUTE RESOLUTION (ADR)

This refers to a set of practices and techniques aimed at permitting the resolution or settlement of
legal disputes outside of the court.

Types of ADR

1. Negotiation – Two (2) parties settle the dispute.

2. Conciliation – A third party called to settle the dispute.

3. Facilitation – If Negotiation and Conciliation failed then another third party is called in.

4. Mediation – A third party that listens to both sides of the dispute and acts as a shuttle.

5. Arbitration – A third party who has knowledge of the law and most times deliver a
verdict.

Stages of Mediation and Arbitration

Mediation Arbitration
1 Initiation Initiation

2 Preparation Preparation

3 Introduction Pre- hearing conference

4 Problem Statement and Problem Hearing and Decision making

Clarification
5 Generation and evaluation of alternatives Award

6 Agreement

Important Criteria for Selecting Mediation or Arbitration

 Mediation Arbitration
1 Need or Desire to present continuous Need to offset power imbalance
relations
2 Emphasis on future dealings Need to compel participation

3 Disputant desire total control of process High volume of disputes

4 Need to avoid a win/lose situation Speed and Privacy

5 Absence of clear legal entitlement Closure on the case

Important Differences between Arbitration and Mediation

1. Arbitration involves a decision by the third party after a hearing while Mediation does
not.

2. In Arbitration, the third party uses ‘left brain’ or rational mental process i.e. analytical,
mathematical, logical and technical.
In Mediation, the third party uses the ‘right brain’ or creative mental process i.e. artistic,
symbolic, emotional.

3. The Arbitrator is a passive participant whose role is to determine right or wrong.

The Mediator by contrast is generally an active participant who attempts to move the
parties to reconciliation and agreement, regardless of who is right or wrong.

Advantages of ADR
 Mediation Arbitration
1 Privacy Privacy

2 Parties control forum Parties control forum

3 Parties select neutrals Parties select neutrals

4 Reflects concerns and priorities of disputes The Arbitrator is an expert

5 The process is flexible Written procedures are used

6 The process educates disputants It is speedy

7 It addresses underlying problems It tailors remedy to suit situation

8 It often result in creative solutions Decisions are enforceable

9 It is relatively inexpensive It is relatively inexpensive

10 There is a high rate of compliance

Disadvantages of ADR

Mediation Arbitration
1 The third party has no power to impose It is increasingly encumbered by legislation
settlement
2 No power to compel participation There is no precedent

3 There is limited access to information No uniformity

4 It lacks enforceability There is usually no written reasons for

decisions
5 It is not binding The third party is unaccountable for its
remedies or rewards
6 The powerful can influence the outcome There is relaxed rules of evidence

OMBUDSMAN

An ombudsman is an official appointed to investigate complaints against public authorities.

Role of the Ombudsman

1. To assist in the protection of the rights and interests of the individuals.

2. To act as a neutral party who does not advocate either party to a dispute.

3. To be trustworthy, dependable, risk free party to whom employers can voice their
concerns confidentially.

4. To essentially manage employee relations and reduce the risks associated with litigation.

Expectations of the Ombudsman

1. To act as a source of information and assistance.

2. To receive complaints from individuals in a society.

3. To bring the complaints to the attention of the appropriate authority or officials.

4. To seek to resolve the difficulty between the aggrieved individuals.

5. To make recommendations to the appropriate authorities about desire or necessary

changes in rules, regulations and procedures.

Functions of the Ombudsman

1. Listener – He acts as a listener to help clarify issues, disentangles complicated situations

and prioritize concerns.

2. Information Resource – Provides access to applicable guidelines and policies that

facilitates communication with other services or appropriate
administrative unit. (he must have knowledge of the law)

3. Provider of Options – He may suggest a range of feasible options and help employees
evaluate the pros and cons.

4. Role Player – He must be available to discuss potential situations and act out an
upcoming meeting as well as to suggest constructive approaches to handle
difficult situations.

5. Informal Intervener – With the permission of the complainant, the Ombudsman can act as
an intermediary, to clarify issues and indicate problem solving
 techniques by including a mediation successor.

6. Trend Recorder – He will periodically report to management on problem areas and trends
within the organization so that issues can be addressed through policies
and procedures.

Module 2 – Principles of Public law

Differences between the Supremacy of the Constitution vs. Parliamentary Sovereignty

Supremacy of the Constitution

- The Constitution stands supreme over all citizens, institutions and all branches of
government. No institution of the Government is authorized to make a policy that is
against the constitution.
- A provision shall have binding force on all authorities. Section 2 of the Constitution
declares the Constitution to be the supreme law of the land and Section 48 vests the
authority to pass laws in parliament.

Parliamentary Sovereignty

- Is a concept in constitutional law. It is a legislative body that have absolute

sovereignty, meaning it is supreme to all other government institution (including
executive and judicial bodies) and may change or repeal (end any legislation pass by
previous parliament).
- Parliament should pass laws which are not inconsistent with the constitution, in which
event, such laws would be void.
- Features of Parliamentary Sovereignty includes
 Parliament can make law in any area
 No parliament can bind its successor. (a parliament cannot pass a law that
cannot be change or reversed by a future parliament).
 No body except parliament can change or reverse a law passed by
parliament.

THE APPOINTMENT AND FUNCTIONS OF THE HEAD OF STATE

 - The Queen is the head of state and on the advice of the Prime Minister, she appoints a
Governor General (GG) to be her representative in Jamaica. The Governor General
must have no affiliation with any political party.

- The GG exercises on her majesty’s behalf, the executive authority of Jamaica, either
directly or through officers subordinate to him.

- He appoints the Prime Minister, leader of the opposition, cabinet ministers, members
of the senate, the chief justice and other members of the judiciary, members of the
service commissions i.e. Judicial Service Commission, Public Service Commission
and the Police Service Commission. He appoints these members on the
recommendation of the Prime Minister after consultation with the leader of the
opposition.

- He acts on the advice of the commissions when making appointments to public

offices and when removing or exercising disciplinary controls over persons holding
such offices.

Functions of the Governor General

1. To participate in the conferring of Jamaican honours.

2. The proroguing (terminating of session in parliament) and dissolving of Parliament.

3. Give assent to bill passed by parliament.

4. Appoint officials of Government including diplomatic officers of The Jamaica Defence

Force, Ombudsman, Contractor General and (Privy Councils).

5. Convenes meetings of the Privy Council which advises him on the prerogative of mercy

and on pardon in capital cases.

6. Reading, dispatching and signing numerous document on state papers.

7. Giving audience to ministers of Government and officials both in Jamaica and overseas.

8. Receiving cabinet decisions.

Ceremonial Events
State banquets take place at the king’s house (official residence of the Governor General).
Whenever Foreign heads of state visit Jamaica and the national honours are bestowed upon the
diplomatic corps, those functions are held at King’s House. The presence of their Excellencies at
cultural, educational and charitable events of national and local importance, encourages
nationwide interest and publicity.

ORGANS OF STATE

There are three (3) organs of state

1. Legislative – make the law

2. Executive – enforces the law
3. Judiciary – interpret the law

1. LEGISLATIVE or PARLIAMENT
The Jamaican Parliament consists of two houses 9chambers)

1. Senate or Upper House

- The Senate is a nominated house made up of 21 senators. Thirteen (13) senators
are appointed by the GG on the advise of the Prime Minister while the other eight
(8) are appointed under the advise of the Leader of the Opposition. Not more than
four (4) ministers can be appointed to the senate.

- The Senate usually functions as a review chamber, considering bills passed by the
House of Representative, but the Senate may also initiate laws except money bills.

- At the first meeting of a newly appointed senate or where there is a vacancy, a

president and deputy president is elected. However, a minister or parliamentary
secretary can hold those offices.

2. House of Representative or Lower House

- This house usually consists of 60 members (maximum that was allowed by the
constitution) elected by singe member constituencies. The government in power can
only exist if it has the support of the majority of the members of the House of Rep. In
practice, most bills are initiated in the House of Representative. No Bill may become
law unless it is passed by a majority of the members present in the House.
 - The Quorum of the House is 16, in addition to the person presiding. The House of
Rep. has control over government finances. Funds cannot be granted or taxation
levied unless it is approved by the lower house.

- The Queen also makes up Parliament, however the GG represents the Queen and his
role is a formal one. Once a year, at the official openening of parliament, the GG
delivers a throne speech. Beyond this, his parliamentary function is limited to his
formal assent to bills passed by the two houses of Parliament.

- The maximum life of a parliament is five (5) years, at the end of which, parliament
must be dissolved and a general election held. However, the Prime Minister may
advise the GG to dissolve Parliament at any time within the five years and set a date
for the general election.

- Also Parliament must be dissolved and a general election held, if a majority or all the
members of the House of Rep. supports a no confidence motion against the
government.

The Speaker

- The Speaker of the House formally elected by the members of the House of Rep.
from among their number, at the first sitting after each general election or when there
is a vacancy.
- Although the speaker is usually a member of the ruling party, a minority party
member may be chosen. The Speaker takes no part in debates. His job is to see that
other members keep within the rules of the House, the rights of the opposition
members are protected and that every member gets a fair hearing.

Leader of the House

- The Leader is responsible for the direction of business in the House. It is his job to
see that time is provided for debates on various matters in the House. In doing so, the
leader of the House consults the Opposition and seeks to reach an agreement as to
what will be done in the House each sitting.
Member of Parliament

- Is any commonwealth citizen, 21 years or older who has been domiciled (living) in
Jamaica for 12 months preceding an election. He/She becomes a member of the
House of Representative , if elected.

Major Differences between the Senate and the House of Representative

- For the decision to be made in the House of Rep., majority votes count, but in the
Senate, everyone has to agree. If not a decision would not be made but would be
thrown out for revision.

2. EXECUTIVE
- The Executive consists of the Queen of England (represented by the GG) or the Chief
of State and a Cabinet, headed by the Prime Minister.

- The Executive enforces the laws that are passed by the legislative. They have
authority over a wide variety of agencies and departments that assists in the
enforcement of laws and oversees how the government spends taxpayers money.

- Agencies that the Executive have authority over includes: National Environment
Protection Agency (NEPA), Department of Justice, Department of Commerce and
Department of Health and Human Services.

- The Cabinet must consist of the Prime Minister and no less than eleven (11) other
ministers (no upper limit is specified).

- Each cabinet minister conducts the ordinary business of his ministry. Important
matters must be brought before the cabinet for discussion and decision. Csbinet
ministers may be assisted by ministers of state and parliamentary secretary (junior
ministers).

3. JUDICIARY
- A body of Judges that interprets the law
Independence of the Judiciary

- This refers to the constitutional arrangement which have been put in place to ensure
that the Judiciary, as an institution is independent of all those who might wish to exert
influences or control over it. There are certain minimum standards which must be
attained in order to guarantee the independence of the judiciary.

1. An Independent Appointment Process

- In order to be considered independent, the judge who make up a court are appointed
by members of the executive . Therefore litigants, including in particular, the
government have no control or influence over their appointment.

2. Security of Tenure
- The judges are secured in their job because of the length of time that is applied to his
job. The only reason in which a judge’s appointment can be terminated will be on the
grounds of misbehavior or inability to perform their functions.

3. Financial Security
- The ability to control or influence the financial well being of a judge must also affect
his ability to act independently. The sense of fear that some financial penalty might
be imposed if a judge decides this way or that way, will cause a judge to always pause
and reconsider their position.

- Since the money to be paid to judges must be provided out of a common limited
funds which many state obligations might compete for, it is generally provided that
the remuneration of judges is a charge on the consolidated funds, thereby
guaranteeing the first call on the public purse.

4. Institutional Independence
- This requires that the judiciary exercise full control over administrative decisions
pertaining directly and immediately to judicial functions. These functions includes:
a. Assignment of Judges
b. Sittings of the Court
c. Establishment of Court lists
d. Direction of Administrative Staff in the carrying out of their functions.

SEPARATION OF POWERS DOCTRINE

- This refers to the separation of the main organs (arm) of state on the division of law
making power among the three branches of government namely legislative, executive
and judiciary.

- The legislative uses law making power when it passes laws.

- The executive branch is a law maker when it issues rules and execute orders which
often has the force of the law.

- The judicial branch establishes laws through its court rulings which may interpret a
provision of the constitution or a rule issued by an executive agency.

- The rule of law requires that the triple functions of the making of laws, their
implementation and their enforcements are vested in separate authorities.

- The three branches are independent but have the power restrain the other branches in
a system of checks and balances. This system was assigned to prevent one branch
from becoming too powerful and abusing its powers.

Diagram showing Checks and Balances

 Examples of Checks and Balances

1. The executive can veto (refuse to approve) laws passed by the legislative.

2. The courts power of judicial review – this enables a court to void or refuse any
laws passed by the legislative and the executive that conflicts with the nation’s
highest law (constitution)/

3. When a law is passed, the executive may prohibit media criticism on elected
officials, if challenged in court. This law may be declared invalid or
unconstitutional because it violates the freedom of press (opinion) guaranteed in
the first amendment.

- The Judiciary has been astute to ensure the strict separation of judicial powers from
legislative and executive powers; thus in the celebrated case Hinds vs. R, the court
struck down legislation which vested judicial powers to convict and sentence persons
guilty of serious crimes. The court has also struck down legislation which gave
sentencing powers to members of the executive.

- Separation of powers is also evident where parliament continues to exercise control

over the legislative process. However, the court will step in, where it appears that the
legislation are exercised in such a way as to ignore the guidelines given.

- Only in theory is the executive different from the legislative, because the prime
minister and other ministers who make up the cabinet (executive) must all be
members of one house or the other (legislative). The executive is guaranteed that the
decision taken in cabinet will be rubber stamped in parliament.

- While courts have intervened in many ways in the name of separation of powers
doctrine, it remains the political reality that all constitutional agreements allow for an
imperfect separation of powers.

THE RULE OF LAW

 - This means nation rule by law and not people. Thus everyone is subjected to the law
including the prime minister.

- The rule of law tells us that there are certain conducts which we must not engage in
and at the same time protect us from state authorities, by demanding that the state be
govern by the law as well.

- Mr. Dicey came up with the principles of the rule of law.

Principles of the Rule of Law

1. No one is above the law.

2. No one should be punished unless they have committed a crime.

3. Everyone is entitled to their right when they appear before the court.

JUDICIAL REVIEW
- This may be defined as the review by the High Court of decisions, acts and omissions
of public bodies or their officers/.
- The aim of judicial review is to keep the action of public bodies and officials within
the confines of the law from which they derive their power.
- The court responsible for judicial review is the Supreme Court of the High Court.
- The role of the supreme court in Judicial Review is both of inherent and statutory
jurisdictions:
 Inherent – The court act in a supervisory capacity to review the actions of
statutory or public bodies and their officials.
 Statutory – The original jurisdiction to hear application for a review of actions
or omissions of inferior bodies or tribunal.

Examples of Public Bodies subject to Judicial Review

 1. Ministry of Education
2. Ministry of Health etc
3. The Fire Service
4. Mayor and City Council

Examples of Public Officials subject to Judicial Review

1. The Governor
2. The Minister of Health
3. The Minister of Education
4. The Commissioner of Police
5. The Commissioner of Inland Revenue
6. High Court Judges
7. Magistrates

LOCUS STANDI

- This is a latin phrase meaning ‘standing’.

- Locus standi is a situation in which a person having a standing in a given situation is

brought before the court. Thus for a person to have locus standi, he must have a place
to stand on.

Approaches to Locus Standi

1. Restrictive
- This emphasizes the fact that where one does not have locus standi, he will not be
heard by the court.
Payne vs. AG of St. Kitts

2. Liberal
- Even though a person has no locus standi, he is allowed to speak in a court of law,
taken into consideration, the effects faced by that person. e.g. eye witness,
psychiatrist etc
 - The court in exercising its discretion should take into account the principles which
have emerged in the case law espousing a liberal standing such as:

 The need to screen out the mere busybody.

 The importance of vindicating the law.
 The likely absence of any other possible challenger with a more direct interst
in the matter.
 The genuine interest of the applicant in the matter.
 The expertise of the applicant and the applicant’s ability to present his case
adequately.

GROUNDS FOR JUDICIAL REVIEW

1. Acting Ultra Vires

- This is a latin word meaning ‘beyond powers’.
- Ultra Vires is any act passed by a public authority, company or other agencies that
goes beyond the limit of its powers.

- Types of Ultra Vires are:

a. Procedural – This is where the decision maker has failed to conform to a
procedure expressed ly required by the act. (The prescribed procedures were not
complied with)
b. Substantive – This is where the delegated legislative goes beyond what parliament
intended, or a decision had been reached outside the powers conferred on the
decision taken. (the decision maker has no power under the act to make that
decision).

2. Improper delegation of power.

3. Breach of one’s fundamental rights.

- e.g . right to life; freedom of speech and expression; freedom of association and
peaceful assembly; freedom of religion and worship; right to privacy; right to equal
protection/discrimination; freedom of movement; right to property

4. Where there has been an abuse of discretion.

5. Breach of requirement in the statute - Where there has been an error of law or fact
appearing on the face of the record.
 6. Where there has been an infringement of the rules of natural justice and legitimate
expectation.
- Natural Justice underscores that a litigant that is aggrieved has certain rights which
have developed overtime to ensure fairness in the way his or case is handled. These
include freedom against bias, the right to be heard.
- Legitimate Expectation is that expectation which a citizen has that public bodies
including governments and public officers in authority will conduct themselves, make
regulations or pass laws which are consistent with well established norms, values,
practices and legal principles.

REMEDIES FOR JUDICIAL REVIEW

Public Law Remedies

1. Certiorari or quashing order

2. Mandamus – ordering an individual to do their duty.

3. Prohibition – preventing some-one from doing something they have a right to do.

4. Habeas Corpus – ‘let us have the body’. It is an application for an order of the High Court
against an inferior tribunal official (usually the Commissioner of
police) to produce a person being held in breach of that individual’s
constitutional and fundamental rights.

Private Law Remedies

1. Damages – monetary compensation

2. Injunction – stop order

3. Declaration – ensuring that an individual possesses a particular right, legal status or

obligation.