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Guest Editors’ Preface

Dennis Morrison
Celia Blake

This issue of the journal draws largely from presentations made at a conference held in February
2012 in Kingston, Jamaica under the theme, Law & Justice in the Commonwealth Caribbean:
The Post-Independence Experience. The conference, as part of the 50|50 flagship project hosted
by the Sir Arthur Lewis Institute for Social and Economic Studies in observance of the fiftieth
anniversary of the independence movement in the Commonwealth Caribbean starting with
Jamaica in 1962, examined a range of issues related by their concern with some aspect of law
and/or justice in the post-independence era. The conference papers in this issue represent a
microcosm of the breadth of topics explored at the conference but they provide some indication
of the centrality of law and concepts of justice to social and developmental concerns of nations in
the Commonwealth Caribbean. While many of the authors have a legal background, their
experiences in various aspects of legal practice, academia and politics, bring a diversity of
perspectives to the papers which transcend the black-letter law and enrich the contributions.
This makes the issue of interest to audiences well beyond the legal core – there are contributions
which should easily engage sociologists, political scientists, criminologists among others.

Kenny Anthony, a constitutional lawyer who has held office at the apex of the political
directorate in St Lucia, intertwines the legal and the sociological in his paper which was the
keynote address at the conference. Referencing a set of largely constitutional cases, he
interrogates whether and what extent the local courts, in the fifty years since Jamaica’s political
independence, have contributed to a Jamaican identity and tradition. Anthony concludes that our
judges have not been remarkably bold in this regard. This is not for lack of judicial capacity; he
argues that what is necessary is ‘a deliberate act of intelligence’ judicially directed to shape the
law into a culturally sensitive institution and indigenise its character.

Justice is placed squarely under the microscope by Mark Golding, a senator in Jamaica’s
Parliament who, at the time of his presentation to the conference, was freshly installed as the
Minister of Justice. His interpretation of the concept is wide and far-reaching as he traces pieces
of post-independence legislation and social institutions which have been pivotal in creating a
more just society. These achievements are often diminished in the face of the social troubles,
some of which have spawned legal and other responses which threaten elements at the very
foundation of justice. Resonating with the concept of the 50|50 project which requires not just
looking back but, critically, looking ahead, Golding then outlines key aspects of the plan to begin
the repair of the ailing justice system. An interesting facet of this repair involves a
reconceptualisation of justice in the criminal justice system which, he envisions, should not
merely be concerned with punishment but with healing and restoration of broken relationships.
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Given the controversy surrounding, and even resistance to, the establishment of the
Caribbean Court of Justice (CCJ) as a final appellate court for several Commonwealth Caribbean
territories including, in particular, Jamaica, it is expected that any treatment of law and justice at
this juncture in the history of the region would embrace a discussion of the CCJ. In fact, the
papers by Anthony and Golding allude briefly to the imperative for adoption by Jamaica of the
CCJ as a key element in nationhood. While the CCJ forms the centrepiece of David Berry’s
paper, he eschews the recited arguments for or against the CCJ as a final appellate court and
refreshingly provides an examination of the emerging jurisprudence of the court in its original
jurisdiction. Surveying the first nine decisions of the CCJ as a regional tribunal on matters
pertaining to the Revised Treaty of Chaguaramas, Berry shows how the court’s approach to
matters and litigants augurs well for strengthening Caribbean integration. He indicates that while
the court has been bold in asserting, in the absence of specific Treaty provisions on the question,
that Treaty member states may be exposed to liability and sanctions for non-compliance, the
court appears more reticent about awarding damages. It is sufficiently clear though that the court
is navigating a path which will not only serve the Caribbean well but will promote its place
among international tribunals.

Concepts of justice tend to be dominated perhaps by notions of formal structures and

facilities instituted by a state or by a group of states. This view is tested in the paper titled, The
Informal Justice System in Garrison Communities by Christopher Charles and Orville Beckford.
Using primary data, the authors provide a stark, if disturbing, account of retributive systems in
Jamaican inner city political strongholds. They discuss the perceptions held by residents in these
communities who are subject to the informal system of justice. Remarkably, some of these
perceptions are positive – residents, for example, voiced their satisfaction about the swift course
of informal justice when compared, in particular, with the formal justice system, notorious for its
slow wheels. This is but one component, perhaps, which might explain the challenge posed by
the informal justice system to the formal one. Avoiding a major destabilisation of the formal
system will require, the authors argue, a reassertion by the state of its authority in these
communities. Corin Bailey’s paper, though not part of the conference presentations, deals, to
some extent, with the gender and law sub-theme of the conference. It examines gender-based
treatment of shoplifters in Barbados in the informal stage prior to official intervention by the
police. The findings offer an explanation for the underrepresentation of women versus men in
the shoplifting statistics. Gender-based notions held by store proprietors about why women
versus men shoplift as well as the perception of females as vital family caregivers contribute to
more women, when caught by proprietors, being allowed to go free without being surrendered
into the legal process. While very different from the Charles and Beckford picture of an
unofficial justice system, Bailey’s discussion arguably points to a type of informal dispensing of
‘justice’ through gendered lens.

The attention demanded by the justice system at the February conference did not
overshadow discussions regarding the role and impact of law in national development. This
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latter conference sub-theme attracted several papers on issues involving intellectual property
rights – a fitting response at a time when brand Jamaica has exploded in the international arena
in the context of the country’s enviable sporting achievements, reggae music and foods. Marc
Morgan and Ingrid Pusey highlight the potential for earning and economic development if
Jamaica further exploits the legal protection afforded to celebrities. Their view is that despite the
legal innovation by the local Supreme Court which offers protection to Jamaican celebrities via
the tort of appropriation of personality, legislative development is still required to clarify the
nature and scope of the protection and offer guidance on the impact of such protection on certain
fundamental rights and freedoms. The paper advocates the establishment of an Image Rights
Registry in Jamaica, outlines the legal framework for such a registry, and explains how this
would be useful in generating several streams of economic activity. It is an appropriate finisher
to the section of the issue dedicated to the theme of law and justice since it launches from a topic
whose emerging importance coincides with the half century mark of independence in the
Commonwealth Caribbean and in which the seeds for economic independence and development
– yet to be realised - may be sewn.