Jamaican Legal Principles and Judicial System

The Nature of Precedents

• Precedents are past judicial decisions that are used as a reference for making future decisions in similar cases.
• They offer legal certainty and precision, but can also create rigidity within the legal system.
• A judge does not have to follow a precedent that has been reversed by a higher court.

Public vs Private Law

• Public Law governs the relationship between the state and its citizens.
• It covers areas like:
  • Constitutional Law
  • Administrative Law
  • Criminal Law
• Criminal Law deals with offenses against the state.
• Cases are brought in the name of the Crown ("R" for Rex or Regina)
• Examples of criminal offenses: murder, theft, drunk driving.

Civil Law

• Civil Law deals with disputes between private individuals.
• A claimant sues a defendant in civil cases.
• Cases involve matters like breach of contract, property laws, etc.

Structure of the Jamaican Judicial System

• The highest court in Jamaica is the Judicial Committee of the Privy Council (JCPC) or "The Privy Council".
• The Court of Appeal (CA) is second to the Privy Council.
• The Supreme Court is below the Court of Appeal.
• The Parish Court is the lowest court.
• The Supreme Court is divided into four divisions:
• Revenue Court
• Gun Court
• Western Regional Gun Court
• Commercial Court

The Supreme Court

• The Supreme Court is a court of record.
• Appeals from the Supreme Court go to the Court of Appeal.
• The Supreme Court handles both criminal and civil matters.
• All cases, except those from Kingston and St Andrew, are named after the parish they are being heard in.
• The Supreme Court is composed of several Circuit Courts, one for each parish, and the Home Circuit Court for Kingston and St Andrew.

The Court of Appeal

• The Court of Appeal is also a court of record.
• Its jurisdiction extends to hearing both criminal and civil cases from the Parish Court and Supreme Court.
• Appeals from the Court of Appeal go to the Privy Council.
• At least three judges must hear an appeal.
• Upon hearing appeals, the Court of Appeal can:
  • Affirm the inferior court's ruling.
  • Reverse the inferior court's ruling and substitute its own.
  • Reverse the inferior court's ruling and send the matter for retrial.

The Privy Council

• This is the final court of appeal for most Commonwealth Caribbean countries, except for Belize, Guyana, Barbados, and Dominica.
• The Privy Council operates as the highest court for all Commonwealth Caribbean countries, except for the four mentioned above.
• It is not a court of first instance, meaning cases cannot be brought directly to it..
• Five judges typically sit to hear each appeal, but this can increase to seven or nine.
• The Privy Council hears appeals on every matter except election disputes, unless these disputes involve constitutional interpretation.
• Jamaica's membership with the Privy Council could be abolished by a simple majority vote in both houses of Parliament.
• Some countries require referenda to remove the Privy Council as their final court of appeal, such as St Vincent and the Grenadines.

Caribbean Court of Justice (CCJ)

• The CCJ was established as an alternative to the Privy Council.
• The CCJ’s establishment was funded through the Caribbean Development Bank (CDB), which raised $100,000,000 USD and placed the funds into a trust fund.
• The CCJ’s annual costs are funded by interest on the trust fund.
• Funds could be depleted, requiring member states to make further contributions, as noted by Prof. Oswald Harding.

Abortion in Jamaica

• The Offenses Against the Person Act (OAPA) prohibits abortion.
• The Bourne case established that abortion may be lawful if there is a risk to the mother’s life, but it did not specify who could perform such abortions or at which stage of pregnancy.
• The Bourne case was followed by the case of R v. Newton. Stungo, which confirmed that a miscarriage could be procured to protect the mother’s life and health.
• The Ministry of Health Guidelines issued in 1975 allowed abortions in some circumstances, such as fetal abnormality, cases of rape, and to protect the mother’s health. However, these guidelines are not legal and cannot override sections of the OAPA.
• In 2008, an abortion policy review group recommended that the relevant sections of the OAPA be repealed and a termination of pregnancy act be passed.
• Parliament is currently reviewing the issue of abortion.

Abortion in Other Countries

• In the United States, the case of Roe v. Wade (1973) established a constitutional right to abortion based on the mother's right to privacy.
• The state's interest in protecting fetal life increases over the course of pregnancy.
• Abortion is generally available in the first trimester (up to 3 months).
• In the second trimester (up to 6 months), abortion is prohibited unless necessary to preserve the life or health of the mother.
• In Britain, abortion is lawful before the 24th week of pregnancy if two medical doctors believe in good faith that the pregnancy poses a risk to the woman's physical or mental health.
• In Barbados, the Medical Termination of Pregnancy Act of 1983 allows abortion before the 12th week of pregnancy if a practitioner believes the pregnancy puts the mother's life at risk or causes serious harm to her health.
• Abortions are also considered in cases of rape or incest.
• Barbados also considers socio-economic factors.
• In Guyana, the Medical Termination of Pregnancy Act of 1995 allows abortions depending on the stage of pregnancy, risks to the mother's life or health, and potential disabilities in the child.
• Guyana takes into account if the pregnant woman is HIV+ and if a contraceptive was used but failed.
• St Lucia's Criminal Code was modified in 2004 to protect the woman's physical and mental health.
• The law includes the provision of abortions in cases of rape and incest.
• A police report must be provided in the case of rape or incest.

Arguments for and Against Abortion

Pro-Life Arguments

• Abortion goes against religious principles.
• Abortion violates the sanctity of life.
• Life begins at conception.
• Health risks are associated with abortion.
• Children should be put up for adoption instead of being aborted.

Pro-Choice Arguments

• The foetus is not a human being with a right to life.
• A woman should have the right to choose whether to have an abortion.
• The woman has a right to privacy regarding her body and reproductive decisions.
• Mother's life and health should be protected.
• Many women die due to unsafe and illegal abortions.

International Law on the Right to Life

• Article 3 of the Universal Declaration of Human Rights (UDHR) states that life shall be protected.
• The American Convention on Human Rights also includes the protection of life, and has a protocol for abolishing the death penalty.
• Jamaica along with some other countries are not part of this protocol.

Next Steps

• Research and provide statistics on abortion in Jamaica and the Caribbean.
• Examine the death penalty.
• Explore international law on the death penalty.