FOUN1301 Law, Governance, Economy and Society in the Caribbean Notes PDF

FOUN1301 LAW, GOVERNANCE, ECONOMY AND SOCIETY IN THE CARIBBEAN Paryss Henry 2024 Module 1: Law Introduction What is Law? A system of rules & regulations that determines how a society is ordered The system of rules are usually enforced through a set of legal institutions eg. (courts, security forces, and parliament) The rules are binding on society Law concerns behaviours and appropriate consequences Laws function to project individuals, and property and to regulate behaviour. Importance of Laws Maintain social order and stability Promote orderly social change Regulate human interaction Sustain individual rights Enforce moral beliefs, norms, and Identify wrongdoers values of society Define the economic, social & political Redress wrongs environment Enhance predictability Prescribe Sanctions Where do laws originate? Two theories: Natural Law Theory Positive Law Theory Paryss Henry 2024 Paryss Henry 2024 The moral standards that govern human Law is a system of social regulations imposed behaviour are objectively derived from human by the rulers & coordinated and enforced by beings and the nature of the world. Therefore, their agents/servants. Therefore, there is no there are moral foundations for laws. moral foundation of law. Rule of law “the maxim that an orderly society must be governed by established principles and known codes that are applied uniformly to all its members” (Schmalleger 2004:99) A well-functioning society needs clear rules that are known and applied fairly to everyone The two categories of law: Criminal Law Civil Law Criminal Law deals with cases in which a Civil law has a complementary function to crime (according to statutes or common law) criminal law. This branch of law seeks to has been committed. address disputes between two or more parties and to give remedy to the persons/parties wronged. According to Lucky (2004, p. 2) a crime is Criminal Law will not compensate the regarded as wrong done to the state or crown aggrieved party except incidentally. For example, if Mark kills Sam, it is seen as For instance, if Pam declares that this is her an offence against the state/crown fence and whatever is on the left of the fence is hers, and Sara decides to demolish the fence, that is considered a crime against Pam What is a legal system? This refers to an arrangement or organised structure for interpreting and enforcing laws. There are two main legal systems in the world: Paryss Henry 2024 Paryss Henry 2024 ○ Civil law systems: Rely heavily on codified sources of law such as constitutions and legislations. In civil law systems, the laws are primarily written down in detailed legal codes, such as constitutions, statutes, and regulations. Judges in civil law systems focus on applying these written laws to individual cases. They don't create new laws but interpret and enforce the existing codes. ○ Common law legal systems: Rely on case law (judicial precedent) as a source of law. In common law systems, a significant source of law comes from court decisions made in previous cases. When judges decide a case, their rulings set precedents that future courts must follow in similar situations. Judges in common law systems have a more active role in shaping the law because their decisions can create new legal principles. This system evolves as new cases are decided. What are the sources of law? Historical Legal Common Law Constitution Equity Legislation International Territories Customs Legal Terms (a)Stare decisis Meaning: "To stand by things decided." Importance: This principle means that courts should follow precedents set by previous decisions in similar cases. (b) Habeas corpus Meaning: "You shall have the body." Paryss Henry 2024 Paryss Henry 2024 Importance: Habeas corpus is a legal writ that protects individuals from unlawful detention. It requires authorities to bring a detained person before a court to determine the legality of their imprisonment. (c) Nolle prosequi Meaning: "Unwilling to pursue." Importance: This is a formal declaration by a prosecutor that they will no longer pursue charges in a particular case. It can be used when evidence is insufficient or when pursuing the case is no longer in the public interest. (d) A fortiori Meaning: "With stronger reason." Importance: This phrase is used in legal arguments to suggest that if something less certain is true, then something more certain must also be true. (e) Actus reus Meaning: "Guilty act." Importance: In criminal law, actus reus refers to the physical act of committing a crime. To convict someone of a crime, it must be proven that they performed an illegal act (actus reus) alongside having a guilty mind (mens rea). (f) Onus probandi Meaning: "Burden of proof." Importance: This refers to the responsibility one party has to prove the assertions or allegations made in a legal case. In criminal cases, the burden of proof usually lies on the prosecution to prove guilt beyond a reasonable doubt. In civil cases, it often falls on the plaintiff to prove their claim. (g) Inter arma silent leges Meaning: "In times of war, the laws fall silent." Importance: This expression suggests that during armed conflict, the rule of law may be suspended or disregarded. (h) Mens rea Meaning: "Guilty mind." Importance: Mens rea refers to the mental state or intent behind committing a crime. To establish criminal responsibility, the prosecution must show that the defendant not only committed the act (actus reus) but also did so with criminal intent or knowledge. It differentiates intentional crimes from accidents. Paryss Henry 2024 Paryss Henry 2024 (i) BYIL: British Yearbook of International Law Meaning: A prestigious annual publication that reviews and analyses developments in international law. Importance: It provides in-depth articles, case notes, and commentary on international legal issues, helping scholars, lawyers, and judges understand key trends and rulings in international law. (j) ICC: International Criminal Court Meaning: A permanent international tribunal established in 2002 to prosecute individuals for genocide, crimes against humanity, war crimes, and aggression. Importance: The ICC ensures accountability for the most serious international crimes and aims to prevent impunity for such acts, promoting global justice and peace. (k) IACHR: Inter-American Commission on Human Rights Meaning: An autonomous body of the Organization of American States (OAS) tasked with promoting and protecting human rights in the Americas. Importance: The IACHR investigates human rights abuses, provides recommendations to governments, and adjudicates human rights violations, playing a critical role in upholding rights across the Americas. (l) JCPC: Judicial Committee of the Privy Council Meaning: The final appellate court for several Commonwealth countries, British Overseas Territories, and Crown Dependencies. Importance: It provides a supreme appellate mechanism for nations that retain the Privy Council as their highest court, impacting the development of legal principles in various countries. (m) ICJ: International Court of Justice Meaning: The principal judicial organ of the United Nations, located in The Hague, Netherlands, which settles disputes between states and gives advisory opinions on international legal issues. Importance: The ICJ promotes peaceful resolution of disputes and provides a legal framework for international relations, enhancing the rule of law at the global level. Cons: it cannot take states to court. Another country has to bring the country to court but they both have to agree to go. (n) ECCA: Eastern Caribbean Court of Appeal Meaning: The appellate division of the Eastern Caribbean Supreme Court, which serves countries in the Eastern Caribbean. Paryss Henry 2024 Paryss Henry 2024 Importance: It hears appeals from the High Courts of several Caribbean nations, ensuring the consistent application of the law in the region and providing legal redress for significant cases. (o) ACHR: American Convention on Human Rights Meaning: A treaty adopted by the Organization of American States (OAS) to protect human rights in the Americas. Importance: It sets the standards for the protection of human rights in member states, and violations can be adjudicated by the Inter-American Court of Human Rights. (p) CERD: Convention on the Elimination of All Forms of Racial Discrimination Meaning: An international treaty adopted by the UN to eliminate racial discrimination and promote equality among all races. Importance: It obligates signatory states to take action against racial discrimination and reports violations to the Committee on the Elimination of Racial Discrimination. (q) UDHR: Universal Declaration of Human Rights Meaning: A historic declaration adopted by the United Nations General Assembly in 1948, outlining fundamental human rights to be universally protected. Importance: The UDHR is a cornerstone of international human rights law, providing a global standard for the protection of human dignity, and influencing many international treaties and national constitutions. (r) ICCPR: International Covenant on Civil and Political Rights Meaning: A key international treaty adopted by the UN that commits signatory states to respect the civil and political rights of individuals. Importance: It ensures rights such as freedom of speech, the right to a fair trial, and freedom from torture. States must submit reports to the UN Human Rights Committee on how these rights are protected domestically. (s) ICESCR: International Covenant on Economic, Social and Cultural Rights Meaning: A treaty adopted by the UN that guarantees economic, social, and cultural rights, such as the rights to education, health, and an adequate standard of living. Importance: It provides a legal framework for the protection of basic human welfare and obligates states to progressively achieve these rights, contributing to global human rights standards. Paryss Henry 2024 Paryss Henry 2024 Sources of Law & Hierarchy of Courts Main Sources of Law in Jamaica (Commonwealth Caribbean Country) In Jamaica, like most Commonwealth Caribbean countries, the main sources of law are: 1. The Constitution: The supreme law of the land. 2. Legislation (Statute law): Laws passed by Parliament (primary legislation) and regulations (secondary legislation). 3. Common law (Case law): Decisions made by the judiciary that establish precedents. 4. Customary law: Traditional practices that may influence legal interpretations. 5. International law: Treaties and conventions that Jamaica has ratified or signed. The Constitution as a source of Law The constitution represents a symbolic break with colonialism. It is the most important legal principle and source in the region because of its adherence to the theory of constitutional supremacy. The constitution can be defined as a body of law containing the rules which determine the structure of the State and its principal organs. It is the authority base from which a rule of law originates and derives its validity. It is the parent law by which all other laws are measured. Functions of the constitution: Supremacy of Law: The Constitution is the highest legal authority, and all other laws must conform to it. Any law that contradicts the Constitution is invalid. Separation of Powers: The Constitution establishes the three branches of government—the Executive, the Legislature, and the Judiciary—each with its separate functions and powers. This system helps maintain checks and balances among the branches to prevent any one branch from becoming too powerful. ○ The Executive is responsible for implementing and enforcing laws. It is headed by the President (in a republic) or the Prime Minister (in a parliamentary system) Executive power is given to the PM and cabinet ○ The Legislature (Parliament) makes, debates, amends, and enacts laws. It holds the Executive accountable Paryss Henry 2024 Paryss Henry 2024 In Jamaica: The Parliament consists of two houses: The House of Representatives (elected by the people). The Senate (appointed by the Prime Minister and the Leader of the Opposition) ○ The Judiciary interprets and applies the law. It resolves disputes, protects individual rights, and ensures that laws comply with the Constitution.The Judiciary operates independently from the Executive and Legislature. The Judiciary is headed by the Supreme Court and includes other courts Protection of Fundamental Rights and Freedoms: It enshrines the fundamental rights and freedoms of individuals, such as the right to life, liberty, freedom of speech, movement, and equality before the law. Establishment of Government Structure: The Constitution outlines the structure of government, including the roles of: ○ The Governor-General (representative of the British monarch). ○ The Prime Minister and Cabinet (executive branch). ○ The Parliament (legislative branch), consisting of the House of Representatives and the Senate. ○ The Judiciary (headed by the Supreme Court), which interprets and applies the law. Establishment of National Sovereignty: It affirms the sovereignty and independence of the country. Mechanism for Amendment: The Constitution provides a process for amendment, allowing the law to adapt to changing societal needs. Guidance for Electoral Process: The Constitution outlines the rules for democratic elections, including the qualifications for voters, the establishment of electoral commissions, and the procedures for selecting members of Parliament. It guarantees free and fair elections, ensuring the legitimacy of the political system. Paryss Henry 2024 Paryss Henry 2024 Features of the Jamaican Constitution 1. Written Constitution: ○ The Jamaican Constitution, like most in the Caribbean, is a written document. 2. Parliamentary Democracy: ○ Jamaica operates under a parliamentary system of government based on the Westminster model. The Constitution establishes this system, where the executive branch (Prime Minister and Cabinet) is drawn from and accountable to the legislative branch (Parliament). 3. Monarchical Framework: ○ Jamaica is a constitutional monarchy, meaning the British monarch is the ceremonial head of state, represented locally by the Governor-General. However, the Constitution ensures that political power resides with the Jamaican government and Parliament. 4. Bill of Rights: ○ The Constitution includes a Charter of Fundamental Rights and Freedoms, which explicitly lists the individual rights and freedoms that are protected 5. Independent Judiciary: ○ The Constitution guarantees an independent judiciary. The judiciary is not influenced by the executive or legislative branches, ensuring that the law is applied fairly and impartially. 6. Bicameral Legislature: ○ Jamaica's Parliament consists of two houses: The House of Representatives (elected by the people). The Senate (appointed by the Prime Minister and the Leader of the Opposition). This bicameral structure ensures representation from both the elected officials and appointed members, allowing for more thorough debate and review of legislation. 7. Protection of Minority Rights: ○ The Constitution incorporates provisions that seek to protect minority groups, ensuring that the rights of all citizens, regardless of race, religion, or gender, are respected. 8. Judicial Review: ○ The Constitution empowers courts to engage in judicial review, allowing them to determine whether laws passed by Parliament or actions by the executive are constitutional. 9. Constitutional Amendments: ○ While the Constitution can be amended, the process is complex and requires a special majority in Parliament (typically two-thirds of both houses). For certain fundamental provisions, a referendum may be required. 10. Recognition of International Law: ○ The Constitution allows for the incorporation of international treaties and agreements, but these must be ratified by Parliament before they become part of the domestic legal system. Paryss Henry 2024 Paryss Henry 2024 Common Law vs Civil Law Common Law Civil Law This refers to law that is developed by judges This is a legal system based primarily on through court decisions, rather than being codified laws or statutes. It relies less on legislated by Parliament. It is based on judicial precedents and more on precedents, meaning that courts follow comprehensive legal codes that cover various previous decisions in similar cases. areas of law. It is the system Judicial Precedent Brief Outline of the Doctrine of Judicial Precedent The doctrine of judicial precedent (or stare decisis) requires courts to follow legal principles established in previous decisions (precedents). This doctrine promotes consistency, stability, and predictability in the law. Application: Lower courts are bound to follow decisions made by higher courts in similar cases. Higher courts, like the Court of Appeal or Supreme Court, may set binding precedents for lower courts. This creates a hierarchical structure of case law. Types of precedent Original Binding Persuasive A judge must come to a A future judge in a lower They are not binding but they decision without following a court must follow a decision may be statements a previous decision as the facts of a pervious judge in a previous common law judge of the case have not come higher court if the case facts has made which can before a court yet. Eg. are similar influence a future judge in his Donoghue v Stevenson own decision. How precedent can be changed Overruling Reversing Distinguishing A court higher up or at the A court higher up sets aside a Distinguishing is the main same level can overturn a legal ruling established in the device for avoiding binding precedent set by a lower same case precedent by establishing Paryss Henry 2024 Paryss Henry 2024 court, in an earlier case, if it that the previous case has finds that the previous ruling different material facts and was incorrect and should no therefore as being not binding longer be followed. (this does on the current case. not change anything in that case) The Practice Statement (House of Lords) Dated July 26, 1999 The Practice Statement issued by the House of Lords on July 26, 1999 was a significant declaration related to judicial precedent and the application of the law in cases. It addressed the House of Lords' approach to the issue of binding precedent and flexibility in the interpretation of the law. 1. Overruling Precedent: ○ The House of Lords (now the UK Supreme Court) declared that it would be willing to depart from its own previous decisions where necessary. This meant that the highest court in the UK could overturn its earlier judgments if they were considered to be incorrect or no longer appropriate in modern contexts. 2. Purpose: ○ The Practice Statement emphasised that the rigid adherence to past decisions (known as stare decisis) might lead to injustice in particular cases or restrict the proper development of the law. ○ The statement recognized that while legal certainty and stability are important, the law must also be able to evolve. ○ it emphasised that overruling would occur rarely and only when there were strong reasons to do so. Paryss Henry 2024 Paryss Henry 2024 Hierarchy of Jamaican Courts Note: Presiding: The judge manages and directs the trial (neutral, impartial role). Prosecuting: The prosecutor actively advocates for the state, trying to secure a conviction against the accused (adversarial role). 1. The Judicial Committee of the Privy Council (JCPC) 2. The Jamaican Court of Appeal 3. The Supreme Court 4. The Parish Court 5. The Lay Magistrates Court Lay Magistrates Court (Formerly Petty Sessions) Presided over by 2-3 Justices of the peace or 1 Parish Judge Cases are prosecuted by a Deputy Clerk of Court (police officer in rare instances) Fines: 50k or 3 months Maximum claim: 10k Appeals are to the Circuit Court of the parish Parish Court (Formerly Resident Magistrates) Located in every parish with a jurisdiction of one mile radius outside the parish boundary. Presided by a parish judge Prosecuted by the Clerk of court or a representative from the Office of the DPP The head of the DPP is now Miss Claudette A Thompson Paryss Henry 2024 Paryss Henry 2024 It presides over both criminal and civil matters Governed entirely by statute Parish Judges are appointed by the governor general and must have been a lawyer for over 5 years and called to the bar of commonwealth. Maximum claim - 1 mil however civil property matters can go up to 3 Maximum fine - 1 mil per offence or 3 years / 5 for forgery act offences The Supreme Court Names: High Court, Circuit Court (in criminal matters), Court of Superior Record, Last Court of First Instance The Home Circuit is the Supreme Court for Kingston & ST. Andrew Has unlimited jurisdiction in civil and criminal matters Civil cases are tried by a judge Criminal cases are tried by a judge and jury Constitutional matters are heard by a panel of 3 judges Consists of the Chief Justice (Honourable Bryan Sykes), a Senior Puisne Judge and at least 24 other Puisne judges (no more than 40) In criminal matters prosecution is done by the DPP To be a puisne judge you have to be called to the bar in JA or the Uk for at least 10 years. They are appointed by the governor general Chief Justice was appointed by the GG under advice of the PM after consulting with Opposition leader Chief Justice is also the Chancellor for the order of the nation (2nd highest honour) and may also be GG where there is vacancy or the GG is indisposed The 4 division of the SC ○ Revenue ○ Gun ○ Western Regional Gun ○ Commercial Court It has both inherent and statutory jurisdiction ○ Inherent jurisdiction refers to the powers that a court possesses by virtue of its existence, independent of any specific legislation. ○ Statutory jurisdiction refers to the authority granted to a court by specific legislation (statutes) that define its powers ○ If a case arises that is not adequately covered by statute, the court can use its inherent powers to resolve the matter appropriately. The Court of Appeal Consists of the president of the Court of Appeal and 12 Judges of Appeal A judge of appeal must be an attorney at law who is a member of the Bar of Jamaica, England, Scotland or Northern Ireland. Paryss Henry 2024 Paryss Henry 2024 They are required to be someone who is of at least 10 years standing or who has held office as a Judge of a court unlimited to civil and criminal jurisdiction in the commonwealth or a court with jurisdiction to hear appeals from any such court Judges are appointed by the GG on advice of the Judicial Service Commission President is appointed by the GG on advice of PM and OL The Head of the court of appeal is Honourable Justice Marva Mcdonald Bishop Judicial Committee of the privy council Located in UK established in 1833 one year before the abolishment of the slave trade and 5 years before the abolishment of slavery 5-9 judges sit to hear an appeal which is an appeal to his majesty in council Hears appeals on any matter except election petitions The privy council hears the appeal and makes a recommendation to the sovereign as the manner in which the appeal is to be resolved. It may recommend confirmation, overturn or variation of the judgement of the Court of Appeal. Appeal to the Privy Council are restricted to cases of certain monetary value or where they are if exceptional public importance Paryss Henry 2024 Paryss Henry 2024 Caribbean Court of Justice & Privy Council Debate Constitutional Provision for the JCPC Section 110 Section 110 of the Jamaican Constitution outlines the provisions for appeals from the Jamaican courts to the Judicial Committee of the Privy Council, which remains the country's final court of appeal for certain matters. 1. Automatic Right of Appeal in Certain Cases: Under Section 110(1), there is an automatic right to appeal to the Privy Council in certain cases: ○ If the case involves a question of interpretation of the Constitution. ○ In civil cases where the value of the matter in dispute exceeds a certain financial threshold (as determined by law). (1k ) ○ Cases where the appeal concerns a final decision of the Court of Appeal in civil matters. 2. Appeal with Leave of the Court of Appeal: According to Section 110(2), an appeal can also be made to the Privy Council with the leave of the Court of Appeal. This applies to cases that may not qualify for automatic appeal under subsection (1) but involve issues of great general or public importance, or if it is in the interest of justice that the Privy Council hears the appeal. 3. Appeal with Special Leave of the Privy Council: In cases where leave is not granted by the Court of Appeal, Section 110(3) provides that a person may still appeal directly to the Privy Council with its special leave. This is an exceptional provision and gives the Privy Council discretion to hear an appeal in cases it deems appropriate. 4. Criminal Cases: Section 110 primarily focuses on civil cases, but appeals in criminal cases can also be made to the Privy Council in certain circumstances, such as in capital punishment cases or cases involving constitutional questions. Paryss Henry 2024 Paryss Henry 2024 Background to the CCJ (Caribbean Court of Justice) Regionalism has been a mechanism that has been used to ensure the survival of the Caribbean region in an increasingly interconnected world. This can be seen in the establishment of WIF (1958) to CARIFTA (1965) and CARICOM (1973) With any form of integration, there must be an avenue put in place to settle any issues that may arise between citizens or among member states Hence the CCJ The CCJ was first proposed at the 6th Caribbean Heads of Govt Conference in JA in 1970 By 1989 there was an agreement to establish the CCJ. However, it was not until Feb 14,2001 that the heads of govt of CARICOM countries signed the Agreement Establishing the CCJ The CCJ began its work in April 2005 CCJ Jurisdiction The CCJ was designed as a court with dual jurisdiction (appellate and original) In its appellate jurisdiction the court will operate as the highest court to which appeals can be taken from the Caribbean Barbados, St. Lucia, Guyana, Belize and Dominica use the CCJ as their final court In its original jurisdiction the CCJ will have exclusive jurisdiction to interpret the Revised Treaty of Chaguaramas and will be the sole arbitrator as it relates to disputes between participating states. (Shanique Myrie vs Barbados case) It is not bound to the precedents of the PC but will consider them in certain cases and in relations to countries still having the PC as their final appellate court. Arguments supporting Privy Council 1. It’s been around: The court has been in existence since 1833, therefore, the commonwealth Caribbean states should stay with the PC because of the wealth of jurisprudence it has acquired over more than 100 years. 2. Corruption in the CCJ: The CCJ is not immune to the presumption that it will be heavily consumed by political inference. Many are concerned about how the President and judges are appointed. 3. Distance: The PC can be more objectively impartial in interpreting and applying the law since they have no preconceived notions. 4. Financial cost of CCJ: The CCJ’s existence is largely due to a trust fund of US 100 million. The trust fund represents a collected effort by CARICOM states. However, that trust fund generates its own wealth now. 5. The CCJ will move slowly Paryss Henry 2024 Paryss Henry 2024 6. Foreign investors may not accept the final decision of the CCJ due to less prestige Arguments for CCJ / Against PC 1. Idea of true independence: Retention of appeals the PC is incompatible with sovereignty and independence. Are we really independent when our laws are dictated by the interpretation of a foreign court? 2. Psychological effect of colonialism: The PC is made up of judges who historically, were considered to be superior psychologically and allowing them to be the final court of appeal perpetuates that. 3. The PC doesn’t even like us: Cases from the Caribbean are seen as a burden to the PC. The President of the UK Supreme Court stated that they were spending a disproportionate time dealing with commonwealth cases. 4. Getting to the PC requires money and visa: This makes accessing justice which should be a fundamental right more difficult for persons. 5. Lacking cultural knowledge: Though many people argue that the impartiality of the PC aids objectivity, it may also be argued that lack of certain cultural knowledge and nuances can hinder justice. Outsiders interpreting the laws of a nation sounds counterintuitive to the nation that has to bear the effects. Side notes: Caribbean Jurisprecident may not look that different in the 21st Century, that the distinct influence of the ex colonial masters as illustrated by excessive reliance on the House of Lords judgements and European human rights jurisprudence (abolition of deathpenalty) will still be evident. Therefore, why do some people make an uproar over sovereignty concerns if you're gonna rule like them anyway? Sort of makes the argument that the PC judges are out of touch with the Caribbean invalid. Lord Reed vs Winston Anderson in the debate For Retaining the Privy Council (Lord Reed's Perspective): Judicial expertise and a long-established tradition. No cost to Caribbean litigants for appealing. Stability in legal precedents. No pressure on Caribbean nations to retain the JCPC, but it offers a familiar and effective system. Lord Reed suggested that the British government should ask senior judges from other countries served by the Privy Council to sit with them and hear cases. Paryss Henry 2024 Paryss Henry 2024 For Adopting the CCJ (Justice Winston Anderson's Perspective): Judicial sovereignty and independence from colonial influence. Greater understanding of Caribbean-specific issues by regional judges. More legitimacy and cultural accessibility. Development of a distinct Caribbean legal framework and jurisprudence. Confidence in the professionalism and independence of the CCJ. Protecting the CCJ form Corruption How Judges are selected: RJLSC: Regional Judicial and Legal Services The RJLSC recommends a President and then it is voted on by the Contracting Parties (¾ vote is needed) The same process is required for removing the president Judges are appointed or removed by the majority vote of 11 members of the RJLSC Remuneration of Judges They are paid a substantial amount from the Trust Fund Protection of Judges They serve until they are 70 If at 70 they are hearing a matter, they are allowed to finish and retire after Judges can only be removed under certain circumstances. The Process of Removing the PC and moving to the CCJ: a. Introduction of a Bill A constitutional amendment bill must be introduced in Parliament. This bill would propose removing references to the Privy Council as the final appellate court and replacing it with the Caribbean Court of Justice (CCJ). b. Approval in Parliament Paryss Henry 2024 Paryss Henry 2024 Since the Privy Council is entrenched in the Constitution, the entrenched provisions require a special legislative process for amendments. The bill would need to be passed by a two-thirds majority in both Houses of Parliament: ○ House of Representatives: The bill must be approved by at least two-thirds of the members. ○ Senate: Similarly, two-thirds of the Senate must vote in favor of the amendment. Previous Trail of Removing the PC in Jamaica February 14, 2001: Jamaica and other CARICOM states signed the agreement establishing the Caribbean Court of Justice (CCJ). The Agreement was ratified and ready for implementation in Jamaican law. Prime Minister P.J. Patterson's Government introduced legislation to replace appeals to the Privy Council with appeals to the CCJ. September 30, 2004: Three Bills were passed by Jamaica’s Parliament and received Governor-General’s assent. Three Acts Passed in 2004: 1. The Caribbean Court of Justice (Constitutional Amendment) Act: ○ Amended the Jamaican Constitution to replace references to the Privy Council with the CCJ. 2. The Caribbean Court of Justice Act: ○ Gave legal effect to the CCJ Agreement in Jamaican law and empowered the Justice Minister to implement provisions. 3. The Judicature (Appellate Jurisdiction) (Amendment) Act: ○ Directed that criminal appeals from the Jamaican Court of Appeal go to the CCJ instead of the Privy Council. Challenge to the Acts: Opposition leaders and civil society groups contested the validity of these Acts, arguing that a simple majority vote was insufficient for such constitutional changes. Privy Council ruling (2005): In The Independent Jamaica Council for Human Rights v. Syringa Marshall-Burnett, the Privy Council ruled that: ○ The replacement of the Privy Council by the CCJ alters the status of Supreme Court and Court of Appeal judges, thus requiring special procedures. ○ The Acts were invalid as they did not follow the correct constitutional amendment procedures. Reasoning: Paryss Henry 2024 Paryss Henry 2024 The Privy Council found that the CCJ would impact the independence of Jamaica’s judiciary since the CCJ judges did not have the same constitutional protections as Privy Council judges. Changing the status of Jamaican judges required a special majority, not a simple one. Implications: The decision left open the question of the proper procedure for replacing the Privy Council. Two possibilities: 1. A two-thirds majority in both Houses of Parliament. 2. A referendum, along with a parliamentary vote, as advocated by the Jamaica Labour Party. 2015: The People’s National Party (PNP) reintroduced legislation to replace the Privy Council, achieving a two-thirds majority in the House of Representatives but falling short in the Senate. Outcome: Jamaica remains under the Privy Council’s appellate jurisdiction, and the CCJ has not been adopted as the final court. Critics and Analysis: Some see irony in the Privy Council deciding its own fate as Jamaica’s final appellate court. Others argue that the Privy Council's decision hinged on its own assessment rather than explicit constitutional text. Political Features Preventing the Use of the CCJ in Appellate Jurisdiction 1. Colonial Legacy and Judicial Confidence: ○ Many Caribbean states, especially those that were once British colonies, continue to view the JCPC as a symbol of high judicial standards, impartiality, and global recognition. The Privy Council’s long-established credibility makes some leaders and citizens hesitant to abandon it for a relatively new regional court like the CCJ. ○ King’s Council Mrs. Neita-Robertson says "I've been practicing law for 47 years. Have we gotten on our own feet? You want me to go through the number of cases that the Privy Council has had to overturn based on very simple principles of law? Would you like me to do that? It would take a whole day," she argued. 2. Political Divisions and Partisan Conflict: ○ In some CARICOM states, the move to adopt the CCJ has been stalled by political disagreements. Different political parties may take opposing positions on the issue. For example, one party may support the CCJ while the other prefers to retain the Privy Council. These partisan conflicts can prevent the Paryss Henry 2024 Paryss Henry 2024 consensus needed to pass the constitutional amendments required to adopt the CCJ. 3. Public Perception and Referendum Requirement: ○ Public opinion often plays a significant role in determining whether a state will transition to the CCJ. Some countries, like Jamaica and Grenada, require a national referendum to amend their constitutions, and the public may resist change due to a lack of confidence in the CCJ or a preference for the established JCPC. In some cases, governments may be reluctant to push for the transition because of concerns about losing public support. 4. Concerns About Judicial Independence and Regional Bias: ○ Some critics argue that the CCJ might be more vulnerable to political interference or regional bias, particularly in politically sensitive or high-profile cases. There may be concerns about the court’s ability to remain independent from political pressures within the Caribbean region, especially compared to the Privy Council, which is geographically and politically distant from Caribbean affairs. Paryss Henry 2024 Paryss Henry 2024 Protection of Fundamental Rights & Freedoms Terms: Human Rights: In Jamaica, human rights are protected under the Constitution, which guarantees fundamental rights such as freedom of speech, right to a fair trial, and freedom from discrimination. However, challenges remain, including issues related to police brutality, poverty, and gender-based violence. Efforts have been made to strengthen human rights protections, but socio-economic factors and crime often pose hurdles to full realisation for all citizens. Death Penalty: Jamaica retains the death penalty for certain crimes, particularly murder. However, there has been a de facto moratorium on executions since 1988 due to lengthy appeals and international human rights pressures. Public opinion is divided—some support the death penalty as a deterrent against crime, while others call for its abolition, citing concerns about human rights and the possibility of wrongful convictions. Abortion: Abortion is the deliberate termination of pregnancy by expulsion of a non-viable foetus that usually takes place in the first 12 weeks of pregnancy. remains largely illegal in Jamaica, except in cases where the mother's life is at risk. The issue is controversial, with ongoing debates between those advocating for more liberalised laws to address women's reproductive health and rights, and religious groups and others who oppose it on moral grounds. The discussion around abortion touches on women's rights, public health, and socio-economic issues. Economic, Social & Cultural Rights: Jamaica faces significant challenges in realising economic, social, and cultural rights, such as access to education, healthcare, housing, and employment. High levels of poverty and unemployment affect many citizens, while inequalities in access to resources persist. Despite efforts through government programs and international support, achieving these rights fully remains a work in progress. Paryss Henry 2024 Paryss Henry 2024 The Rule of Law Definition: The rule of law ensures that laws are applied equally and fairly, and no one is above the law, including the government. In Jamaica: ○ The rule of law is a cornerstone of Jamaica’s legal system, which is rooted in the British common law tradition. The judiciary operates independently of the executive and legislature, providing checks and balances on government actions. ○ Challenges: Despite this, issues such as corruption, the slow pace of the legal system, and limited resources for law enforcement and the courts can undermine the rule of law. Instances of police brutality and extrajudicial killings have raised concerns about whether all state institutions consistently respect legal standards. Due Process of Law Definition: Due process ensures that individuals have fair legal procedures and a chance to defend themselves in court before being deprived of life, liberty, or property. In Jamaica: Due process is constitutionally guaranteed. Citizens are entitled to a fair hearing by an independent and impartial tribunal, protection against unlawful detention, and access to legal representation. Challenges: The criminal justice system faces severe backlogs, leading to long delays in trials and excessive pretrial detention. Many individuals spend years in prison before their cases are heard, violating their right to a speedy trial. Violation of habeas corpus Freedom of Movement Definition: Freedom of movement guarantees that individuals can move freely within their country and leave or return to it without arbitrary restrictions. In Jamaica: ○ Citizens generally enjoy freedom of movement. People can travel freely within the country and across borders, and there are no formal restrictions on entering or leaving Jamaica. ○ Challenges: However, crime and violence in certain areas, can limit practical freedom of movement due to safety concerns. Gang activity and violence sometimes create "no-go zones" where citizens feel unsafe travelling. Sometimes the implementation of zozo's can limit people’s movement. Paryss Henry 2024 Paryss Henry 2024 Freedom of Expression Definition: Freedom of expression guarantees individuals the right to express opinions freely, without interference or retaliation, including through the media. Extent in Jamaica: ○ Jamaica has a strong tradition of respecting freedom of expression, and this is reflected in its vibrant media landscape and ranking as one of the top countries in the Caribbean for press freedom. ○ The press and civil society are generally free to criticise the government, and citizens can openly express their views on various social and political issues. Social media also provides a platform for free speech. ○ Additionally, issues of defamation laws and their impact on media organisations' willingness to critique powerful figures occasionally emerge. Right to Privacy Definition: The right to privacy protects individuals from arbitrary interference with their personal life, communications, and data. Extent in Jamaica: ○ Jamaica's Constitution protects the right to privacy, and there are laws in place to safeguard personal information. The recently enacted Data Protection Act (2020) aims to enhance protections of personal data in line with global privacy standards. ○ However, privacy concerns exist around law enforcement activities. Reports of illegal surveillance, phone tapping, and the excessive collection of personal information by authorities have surfaced, particularly in relation to crime-fighting measures. ○ Public concern has also arisen over the implementation of national identification systems and their potential to infringe on citizens’ privacy. Paryss Henry 2024 Paryss Henry 2024 Fundamental Rights and freedoms Sources of Influence (a) Shared Historical Experience Colonialism shaped the legal and constitutional systems of Caribbean countries, especially through British colonial rule lasting over 300 years in some places. This historical context laid the foundation for the structure of rights and freedoms that emerged post-colonization. (b) Decolonization Process As Caribbean countries gained independence, they inherited constitutions from Britain that included similar sets of fundamental rights and freedoms. These constitutions were drafted with a shared template, resulting in consistent rights language across the region. (c) European Convention on Human Rights (ECHR) Many Caribbean constitutions based their human rights provisions on the ECHR and parts of the Universal Declaration of Human Rights (UDHR). These provisions primarily address civil and political rights, reflecting Western European influence. (d) The Privy Council (JCPC) The Judicial Committee of the Privy Council (JCPC) serves as a unifying force by interpreting fundamental rights consistently across Caribbean states. This ensures a degree of legal uniformity in how rights are understood and applied in the region. (e) International Impact Caribbean countries are influenced by international treaties related to human rights, including: ○ ICCPR (International Covenant on Civil and Political Rights) ○ ICESCR (International Covenant on Economic, Social and Cultural Rights) ○ ICRC (International Convention on the Rights of the Child) ○ CERD (Convention on the Elimination of All Forms of Racial Discrimination) ○ CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) These treaties inform Caribbean approaches to both civil-political and economic-social rights. Paryss Henry 2024 Paryss Henry 2024 (f) Civil Society Civil society groups play a crucial role in advocating for and promoting human rights across Caribbean nations. They raise awareness, challenge injustices, and contribute to the development of rights-based policies. International Human Rights Laws ICCPR (International Covenant on Civil and Political Rights) Adopted: 1966, entered into force in 1976. Purpose: To protect civil and political rights worldwide. Key Provisions: ○ Right to life, liberty, and security of the person. ○ Freedom from torture and inhuman treatment. ○ Rights to a fair trial and due process. ○ Freedom of thought, religion, expression, assembly, and association. ○ Prohibition of arbitrary arrest or detention. ○ Rights to privacy and equality before the law. ○ Political participation rights, including the right to vote. 2. ICESCR (International Covenant on Economic, Social and Cultural Rights) Adopted: 1966, entered into force in 1976. Purpose: To protect economic, social, and cultural rights. Key Provisions: ○ Right to work, fair wages, and safe working conditions. ○ Right to form trade unions and strike. ○ Right to social security. ○ Protection of the family, maternity, and children. ○ Right to an adequate standard of living, including food, clothing, housing, and continuous improvement of living conditions. ○ Right to the highest attainable standard of physical and mental health. ○ Right to education and participation in cultural life. 3. ICRC (International Convention on the Rights of the Child) Adopted: 1989, entered into force in 1990. Purpose: To protect the rights of children under the age of 18. Key Provisions: ○ Right to life, survival, and development. ○ Right to non-discrimination and the best interests of the child in all actions. ○ Right to a name, nationality, and family. ○ Right to protection from abuse, exploitation, and child labor. Paryss Henry 2024 Paryss Henry 2024 ○ Right to education, healthcare, and an adequate standard of living. ○ Right to be heard and to participate in decisions affecting their lives. 4. CERD (Convention on the Elimination of All Forms of Racial Discrimination) Adopted: 1965, entered into force in 1969. Purpose: To eliminate all forms of racial discrimination globally. Key Provisions: ○ Prohibits racial discrimination in all its forms, including in employment, education, and housing. ○ Obligates states to take positive steps to promote racial equality. ○ Criminalizes incitement to racial hatred and the participation in racist organisations. ○ Provides for equal access to justice, social services, and public spaces. ○ Right to freedom of movement and residence within the state without discrimination. 5. CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) Adopted: 1979, entered into force in 1981. Purpose: To eliminate discrimination against women and ensure gender equality. Key Provisions: ○ Prohibits discrimination against women in all areas of life, including political, economic, social, and cultural spheres. ○ Promotes women’s equal rights in education, employment, healthcare, and participation in public life. ○ Ensures equal rights to marriage, family life, and property ownership. ○ Obligates states to combat gender-based violence and human trafficking. ○ Supports equal representation of women in government and decision-making. Charter of Fundamental Rights and Freedoms In Chapter III, provisions on Fundamental Rights and Freedoms. In 2011, these rights were amended by the Charter of Fundamental Rights and Freedoms, which replaced the original Chapter III. Main rights: (a) The right to life, liberty and security of person; (most important) Paryss Henry 2024 Paryss Henry 2024 (b) Freedom from torture, inhuman or degrading punishment or treatment; (c) Freedom of thought, conscience, belief and observance of political doctrines; (d) Freedom of expression; (e) Freedom of peaceful assembly and association; (f) Freedom from discrimination on specific grounds; (g) The right to privacy; (h) Due process of law/fair trial/equality before the law; (i) Right to property Newly added rights: (a) The right of every child to protection as required by the status of being a minor; (b) The right to publicly funded tuition at pre-primary and primary levels; (c) The right to a healthy and productive environment; (d) The right to be registered as an elector, and if so registered, to vote; (e) The right to be granted a passport; (j) Equitable and humane treatment by public authority; Where a governmental action conflicts with a constitutional right, the constitutional right will prevail. However, if a certain limitation is demonstrably justified in a free and democratic society, the Act is valid. If it is not justified, the Act is null and void. Abortion Abortion is the deliberate termination of pregnancy by expulsion of a non-viable foetus/fetus that usually takes place in the first 12 weeks of pregnancy. 1. Domestic Legal Framework Paryss Henry 2024 Paryss Henry 2024 Current Law: Abortion is illegal in Jamaica under the Offences Against the Person Act (1861), which criminalises the procedure. Any person who attempts to procure an abortion or assist in the process can face imprisonment. ○ Legal Exceptions: While the law generally prohibits abortion, it is sometimes permitted to save the life of the mother under common law precedents. However, there is no formal legislative framework allowing abortions under other circumstances, such as rape, incest, or fetal abnormalities. ○ Criticism: The blanket criminalization of abortion has been criticised for being outdated and out of touch with modern human rights standards. Human rights advocates argue that women’s access to safe abortion is a matter of bodily autonomy and reproductive health, and laws should account for more exceptions (such as cases of rape, severe fetal impairment, or risks to the mother’s health). Charter of Fundamental Rights and Freedoms Constitution Section 13(3)(a) – The right to life, liberty and security of the person and the right not to be deprived thereof except in the execution of the sentence of a court in respect of a criminal offense of which the person has been convicted. Person is not defined so there is ambiguity Offences Against the Person Act (OAPA) Legislation Section 72 (Mother and Doctor): “Every woman, being with child, who with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent; and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her, or cause to be taken by her, any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and, being convicted thereof, shall be liable to be imprisoned for life, with or without hard labor.” Section 73 (Doctor): “Whosoever shall unlawfully supply or procure any poison or other noxious thing or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable to be imprisoned for a term not exceeding three years, with or without harbor labor.” 2. Moral and Religious Perspectives Religious Influence: Jamaica is a deeply religious society, with Christianity playing a significant role in shaping public opinion. Many of Jamaica's laws descend from Christian Paryss Henry 2024 Paryss Henry 2024 values. Many religious groups, including the powerful church lobby, view abortion as morally unacceptable and equate it to taking a human life. ○ Pro-Life Stance: Religious leaders often argue that life begins at conception and, therefore, the sanctity of life should be upheld. 3. Socio-Cultural Perspectives Societal Views on Abortion: Jamaica’s conservative social values significantly influence the country’s stance on abortion. Many people in Jamaican society view abortion as morally wrong, driven by religious doctrine, patriarchal norms, and cultural beliefs surrounding family and reproduction. ○ Stigma and Shame: Abortion is heavily stigmatised in Jamaican society. Women who seek or obtain abortions are often judged harshly, and the procedure is regarded as taboo. This contributes to the silence surrounding the issue and reinforces restrictive laws. ○ There are people who share the belief that if abortion is legalised women will use it as means of birth control out of irresponsibility. ○ Changing Attitudes: There are emerging movements and discussions, particularly among younger generations and women’s rights groups, challenging the stigma around abortion. 4. Impact on Women’s Health Unsafe Abortions: The criminalization of abortion has led many Jamaican women to seek unsafe, illegal abortions, which put their health and lives at risk. Unsafe procedures can result in severe complications, including infections, infertility, and death. ○ Health Inequality: Women from poorer socio-economic backgrounds are disproportionately affected by the abortion ban, as they often cannot afford to travel abroad for safe procedures or access proper medical care in emergency situations. This creates a stark divide in health outcomes for women based on wealth. Further these persons are more likely to need reproductive health care due to systemic issues such as, lack of education, serial polygamy, inability to provide for children, etc 5. Human Rights and International Perspective Global Trends: Internationally, many countries are moving towards more liberal abortion laws that focus on reproductive rights, women’s health, and autonomy. Jamaica’s restrictive laws are out of step with these global trends. 6. Ongoing Debates and Reform Efforts Paryss Henry 2024 Paryss Henry 2024 Call for Reform: In recent years, there have been growing calls to reform Jamaica’s abortion laws. Women’s rights groups, human rights groups such as JFJ along with some politicians, have called for decriminalization or at least the inclusion of exceptions for cases such as rape, incest, or serious health risks. ○ Resistance to Change: Despite these efforts, resistance from religious groups and conservative sectors of society has slowed progress. Abortion Rates Worldwide On average 56 million abortions occurred worldwide each year between 2010-2014 Between 2015-2019 73.3 million induced abortions (safe & unsafe) abortions occurred each year worldwide. Six out of every ten unwanted pregnancies end in induced abortions.Approximately 30% of all unwanted pregnancies end in induced abortions Each year between 4.7%-13.2% of maternal death can be attributed to unsafe abortions. It is estimated that 220 women die per 100,000 unsafe abortions. In Latin America and Africa, the majority of all abortions are unsafe. The highest annual rate of abortion in 2010-2014 was in the Caribbean, estimated at 65 per 1,000 women of childbearing age. Abortion & International Law Universal Declaration of Human Rights (UDHR) Article 3: “Everyone has the right to life, liberty and security of the person.” International Covenant on Civil and Political Rights (ICCPR) Article 6: “Every human being has the inherent right to life; this right shall be protected by law. No one shall be arbitrarily deprived of their life” American Convention on Human Rights (ACHR) Article 4 (1): “every person has the right to have his life respected, this right shall be protected by law and in general from the moment of conception. No one shall be arbitrarily deprived of his life.” Case: White and Potter (Baby Boy) v United States (1981) – abortion carried out to protect the mother’s physical and mental well-being. ‘In general,’ suggests that it is not always protected from the moment of conception; but not limited to or does it apply to all Paryss Henry 2024 Paryss Henry 2024 Case: R v Bourne (1938) Justice McNaughtonA gynecologist performed an abortion on a 15-year-old rape victim. It was his view that she would die if permitted to give birth. The operation was performed in a public hospital with the consent of her parents. The doctor was found not guilty of unlawfully procuring a miscarriage since he had acted in good faith to save the life of the girl/to prevent her from being a ‘physical/mental wreck’ Abortion Laws in the Caribbean Bahamas, Grenada, St. Kitts, St. Lucia, Trinidad – abortion are only allowed to protect a woman’s life or health by law. Antigua – abortion is allowed to protect the life of the mother in the 1st trimester only if authorized by a panel of doctors. Thereafter, it is only allowed in very extreme/exceptional circumstances. Barbados – the law has been liberalized and this is based on the Medical Termination of Pregnancy Act (MTPA) of 1983. However, under this act, certain conditions must be satisfied. It must be done in the first 12 weeks through authorization of a medical physician, if done after that, at least 3 medical physicians must believe that the continuation of pregnancy would bring physical or mental injury to the mother. Internationally United Kingdom This act allows abortion prior to 24 weeks of pregnancyThe 1990 Amendment to the Abortion Act of 1967 provides that abortion is lawful if undertaken by a registered medical doctor and certain specified conditions are satisfied. United States of America No federal law that speaks to Abortion. Roe v Wade – privacy rights of mother and fetus (precedence)This case focuses on the fundamental right to privacy. The Court noted that there is a duty to balance the mother's right to privacy against the state's interest in the welfare of the fetus which increases as Paryss Henry 2024 Paryss Henry 2024 the fetus develops. The Court stated that abortions should be available in the 1st trimester if it is done by a licensed physician. Limited intervention in the 2nd trimester however in the 3rd trimester, the state can intervene to protect the life of the child unless abortion is necessary to save the life/ health of the woman. Jamaica: Recommendations for Change Repeal the OAPA and replace it with a Termination of Pregnancy Act outlining the conditions under which pregnancy can be lawfully terminated. Create specified staffed centres for the provision of abortions. Termination under 12 weeks can be done in a doctor's office: 12-22 weeks must be done in a hospital, over 22 weeks-not recommended except in extreme circumstances Death Penalty 1. Legal Framework Current Law: The death penalty remains on Jamaica's law books, with hanging being the prescribed method of execution under the Offences Against the Person Act. It is reserved for crimes such as murder under aggravated circumstances. Although it is still legal, Jamaica has not carried out an execution since 1988, effectively rendering the death penalty dormant in practice. Constitutional Implications: Jamaica’s Constitution guarantees protection from inhumane and degrading treatment, and many argue that the death penalty violates this right. The Constitution also provides a framework for reviewing whether extreme punishments align with human dignity and modern interpretations of justice. 2. Moral and Ethical Perspectives Support for Retribution: Some argue that the death penalty serves as a form of retribution or justice for the victims and their families. It is seen as a way to ensure that those who commit heinous crimes, such as aggravated murder, pay the ultimate price, and are permanently removed from society. Paryss Henry 2024 Paryss Henry 2024 Public Support: Polls in Jamaica show that a significant portion of the population supports the death penalty due to the high levels of violent crime and a desire for justice for victims. This is often fueled by frustration with the justice system Opposition on Moral Grounds: On the other hand, opponents of the death penalty argue that it is inherently immoral to take a life, regardless of the crime committed. They argue that state-sanctioned killing lowers societal moral standards and violates the right to life, which should be absolute. ○ Religious Views: Some Christians advocate for mercy and forgiveness, believing that only God has the right to take life. Others believe in the justice of the death penalty as a legitimate response to egregious crimes. 3. Socio-Cultural Perspectives Crime and Public Safety: Jamaica has one of the highest murder rates in the world, and the death penalty is often viewed as a potential deterrent to violent crime. Proponents argue that keeping the death penalty on the law books sends a strong message to potential criminals that the ultimate punishment awaits them if they commit certain crimes. ○ Deterrence Debate: However, there is little empirical evidence to suggest that the death penalty effectively deters violent crime. Countries that have abolished the death penalty have not seen significant spikes in violent crime rates. Societal Fear of Crime: Many Jamaicans live in fear due to the prevalence of violent crime, which leads to widespread support for harsh punishments, including the death penalty. 4. Practical Considerations Irreversibility and Miscarriages of Justice: A major argument against the death penalty is its irreversibility in the event of wrongful convictions. The Jamaican justice system, like many others, is not immune to errors, and executing an innocent person would be an irreversible miscarriage of justice. 5. International Human Rights Standards Global Trends: Internationally, there is a growing movement toward the abolition of the death penalty. The United Nations, Amnesty International, and other human rights organisations advocate for the complete abolition of the death penalty, viewing it as a violation of human rights and incompatible with modern standards of justice. ○ International Treaties: Jamaica is a signatory to various human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR), which discourages the use of the death penalty and encourages countries to move toward abolition. Continuing to maintain the death penalty could place Jamaica at odds with its international obligations. 6. Rehabilitative Justice Paryss Henry 2024 Paryss Henry 2024 Alternatives to the Death Penalty: Critics of the death penalty argue that the focus should shift towards rehabilitative justice. This approach seeks to reform offenders and reintegrate them into society rather than executing them. While this may be difficult for crimes as serious as murder, it reflects a broader shift toward addressing the root causes of crime (such as poverty, lack of education, and broken family structures) and preventing recidivism. The JCPC and Jamaica on the Death Penalty The JCPC is often regarded as a human rights court. It typically aims to prevent the use of the death penalty at all costs and prefers rulings such as life imprisonment. Internationally, the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) emphasise the right to life, advocating for its protection and restricting the use of the death penalty to the most serious crimes. In Jamaica, while the Constitution guarantees the right to life, the application of the death penalty has faced significant challenges, including a moratorium on executions since 1988 due to legal rulings such as Pratt and Morgan, which declare prolonged delays in carrying out death sentences as violations of this right. The Judicial Committee of the Privy Council (JCPC) plays a crucial role in interpreting these laws, reinforcing the need to align Jamaica's legal framework with contemporary human rights standards. Therefore, despite the death penalty remaining legally permissible, its practical application and the JCPC's emphasis on human rights underscore the ongoing debate about the compatibility of capital punishment with the fundamental right to life. Paryss Henry 2024 Paryss Henry 2024 Highlighted Examples (a) Pratt & Morgan v. The Attorney-General of Jamaica Main Issues: In this landmark case, the JCPC addressed the constitutionality of prolonged delays in executing death sentences. In this case, the appellants, Michael Pratt and Kevin Morgan, were convicted of murder. They were sentenced to death in 1993 for the murder of a police officer in Jamaica. Their convictions were upheld by the Court of Appeal.The appellants, Pratt and Morgan, had been sentenced to death but had been on death row for over fourteen years before their execution was scheduled. They argued that such delays constituted cruel and inhumane punishment, violating their right to life under Section 17 of the Jamaican Constitution. Ruling: The JCPC ruled that the prolonged delay in execution was unconstitutional. It established a guideline that if a death sentence was not carried out within five years, it would be considered inhumane and a violation of the right to life. This ruling created a de facto time limit for carrying out the death penalty, significantly hindering its practical application in Jamaica. (b) Neville Lewis et al v. The Attorney-General of Jamaica Main Issues: This case examined the adequacy of legal representation for individuals facing the death penalty. The appellants argued that they had not received effective legal assistance during their trials, which compromised their right to a fair trial as guaranteed under the Jamaican Constitution. Neville Lewis and his co-appellants were convicted of murder in 1996. They were accused of killing a man during an altercation. Lewis and others maintained that they had not received adequate legal representation during their trial. Ruling: The JCPC emphasised the fundamental right to due process and fair trial standards, stating that the absence of competent legal representation in capital cases violated constitutional rights. The ruling reinforced the importance of proper legal counsel, particularly for defendants facing the death penalty, thus necessitating reforms to ensure that all defendants receive adequate legal support. (c) Lambert Watson v. R Main Issues: This case challenged the constitutionality of mandatory death sentences in Jamaica. Watson argued that the mandatory imposition of the death penalty for certain crimes infringed upon the right to a fair trial and that judges should have the discretion to impose sentences based on the Paryss Henry 2024 Paryss Henry 2024 circumstances of each case.Lambert Watson was convicted of murder for the 1997 killing of a police officer. Ruling: The JCPC ruled that mandatory death sentences were unconstitutional as they did not allow judges to exercise discretion in sentencing. This decision effectively required that judges consider individual circumstances before imposing the death penalty, leading to a more nuanced approach to capital punishment in Jamaica. (d) Evon Smith v. The Queen Main Issues: In this case, the JCPC examined the application of the death penalty and the standards required for a fair trial. Smith’s appeal focused on issues of legal representation and the fairness of his trial process.Evon Smith was convicted of murder in 2002 for killing a man during a robbery. The conviction was based on witness testimony, which Smith challenged as unreliable. Ruling: The JCPC found that inadequate legal representation and procedural irregularities violated Smith’s right to a fair trial. The ruling reinforced the necessity for defendants in capital cases to receive competent legal representation and for trials to adhere to fair legal standards, thereby adding further legal protections for individuals facing the death penalty. (e) Daniel Trimmingham v. R Main Issues: Trimmingham's case raised questions about the adequacy of legal representation and the fairness of trial procedures for those facing capital punishment. The appellant argued that he did not receive effective counsel, which impacted the outcome of his trial. Daniel Trimmingham was convicted of murder in connection with the killing of a man during a drug-related incident. The case was marked by the controversial nature of the evidence presented at trial. He argued that these factors compromised the integrity of the trial process. Ruling: The JCPC ruled that the failure to provide adequate legal representation constituted a violation of the right to a fair trial. This ruling underscored the importance of competent legal defense in capital cases, reinforcing the principle that all individuals facing the death penalty must have access to proper legal assistance to ensure the integrity of the judicial process. (f) Boyce and Joseph v R Main Issues: This case tackled the broader question of the constitutionality of the death penalty itself. The appellants argued that the death penalty was a violation of their rights, particularly in light of the Paryss Henry 2024 Paryss Henry 2024 arbitrary nature of its application. This case involved Boyce and Joseph, who were convicted of murder in Barbados for their roles in a fatal robbery. Boyce and Joseph appealed their death sentences, arguing that the application of the death penalty itself was unconstitutional. Ruling: The JCPC ruled that the death penalty, under certain conditions, could violate the right to life and the prohibition against cruel and inhumane punishment. This ruling added to the growing body of legal challenges against capital punishment, influencing public and legal discourse on the legitimacy of the death penalty in Jamaica. Overall Impact on the Application of the Death Penalty The JCPC’s rulings in these cases collectively reshaped the landscape of capital punishment in Jamaica. They established crucial legal precedents emphasising: Time Limits: The ruling in Pratt & Morgan imposed strict timelines for executions, creating significant obstacles for the application of the death penalty. Due Process: The emphasis on fair trial rights and competent legal representation in Lewis, Watson, Smith, and Trimmingham highlighted the necessity for procedural fairness in capital cases, thereby making it more challenging to uphold death sentences. Judicial Discretion: The ruling in Watson necessitated that judges exercise discretion in sentencing, preventing the blanket application of the death penalty. Constitutionality: The JCPC’s stance on the death penalty's constitutionality, as seen in Boyce and Joseph, further added to the legal and ethical debates surrounding its application. These rulings have contributed to a de facto moratorium on executions in Jamaica and have sparked ongoing discussions about the future of the death penalty, human rights, and the justice system in the country. The JCPC's decisions advocate for a more humane approach to justice and the protection of individual rights, influencing both public opinion and legislative measures regarding capital punishment in Jamaica. The savings Clause The savings clause is a constitutional provision found in many Caribbean countries, which protects existing laws (especially those in place before the Constitution came into effect) from being challenged on the grounds that they are inconsistent with the fundamental rights and freedoms outlined in the Constitution. This feature has been a central issue in several significant cases heard by the Judicial Committee of the Privy Council (JCPC), particularly in Charles Matthew v The State and Boyce and Joseph v The Queen. Here's a detailed explanation of the savings clause and its interpretation in these cases: Paryss Henry 2024 Paryss Henry 2024 1. Charles Matthew v The State (2004) Details of the Case: ○ Charles Matthew was convicted of murder in Trinidad and Tobago and sentenced to death under the mandatory death penalty provisions of the Offences Against the Person Act. He challenged the constitutionality of the mandatory death penalty, arguing that it violated his right to life and freedom from inhuman or degrading punishment under the Trinidad and Tobago Constitution. Savings Clause Issue: ○ The Privy Council upheld the death sentence, ruling that the mandatory death penalty was protected by the savings clause in the Constitution of Trinidad and Tobago. The savings clause effectively shields laws that were in force before the Constitution came into effect from being challenged on human rights grounds, even if those laws might now violate fundamental rights guaranteed by the Constitution. ○ In this case, since the law mandating the death penalty was in existence before the Constitution, it was "saved" by the savings clause, and the Court could not declare it unconstitutional. Significance: ○ The decision reinforced the savings clause's power, meaning that laws passed before the Constitution are essentially immune from constitutional challenges, even if they are outdated or inconsistent with modern human rights standards. 2. Boyce and Joseph v The Queen (2004) Details of the Case: ○ Boyce and Joseph were sentenced to death in Barbados under the mandatory death penalty provisions of the Offences Against the Person Act. They challenged the mandatory death penalty, arguing that it violated their constitutional rights, including the right to life and freedom from inhuman punishment. Savings Clause Issue: ○ Similar to Charles Matthew, the Privy Council ruled that the mandatory death penalty in Barbados was protected by the savings clause in the Constitution of Barbados. The savings clause in this case prevented the court from reviewing or striking down laws that predated the Constitution on human rights grounds. ○ The Privy Council held that since the law imposing the mandatory death penalty had been in force prior to the Constitution, it was saved by the savings clause and could not be declared unconstitutional. Significance: ○ The Boyce and Joseph decision further entrenched the application of the savings clause in Caribbean constitutional law. It emphasized that even though certain laws (such as the mandatory death penalty) may appear incompatible with modern human rights principles, they cannot be invalidated due to the protection provided by the savings clause. Paryss Henry 2024 Paryss Henry 2024 Implications of the Savings Clause in These Cases: The savings clause is a controversial constitutional feature because it protects older laws from being updated or overturned, even if they conflict with current human rights standards. In both Charles Matthew and Boyce and Joseph, the Privy Council upheld the mandatory death penalty because the laws were protected by the savings clause, despite the argument that these laws violated fundamental rights like the right to life and freedom from cruel or inhuman punishment. These cases highlighted the tension between preserving colonial-era laws and upholding contemporary human rights, and the difficulty Caribbean countries face in reforming laws that are constitutionally "saved." Criticism of the Savings Clause: The savings clause has been criticized for perpetuating outdated laws that are no longer consistent with modern constitutional rights and values. It has also raised questions about the need for constitutional reform to allow more flexibility in updating or removing laws that conflict with fundamental human rights. Paryss Henry 2024 Paryss Henry 2024 Paryss Henry 2024 Paryss Henry 2024 Module 2: Governance Politics The way in which we understand and order our social affairs, especially in relation to the allocation of scarce resources, the principles underlying this, and the means by which some people or groups acquire and maintain a greater control of the situation than others. Political Participation Measures civic engagement and the extent to which governments involve or consult civic groups in policy making and decision-making processes. Political Culture The attitudes, feelings, ideas and values that people have about politics, government and their own role and more generally about authority and all its various forms Evaluates how political attitudes and values support democratic principles, reinforcing strong, accountable governance. Encourages voting based on issues and rational decisions rather than traditions or loyalty. Types of political culture: Participant citizens are actively involved in the political process. They are informed about political systems, understand their rights and responsibilities, and engage in activities such as voting, campaigning, and public debate. Subject citizens are aware of the political system but are generally passive. They obey laws, respect authority, and do not actively engage in political processes or question government policies. Parochial citizens have limited awareness or interest in the political system. Their focus tends to be on local or community issues rather than national governance. Paryss Henry 2024 Paryss Henry 2024 Factors that shape political culture A country’s political history ○ Colonial Legacy: Under British rule, Jamaica adopted the Westminster Parliamentary system, shaping political norms such as strong executive power and centralized decision-making. ○ Resistance and Activism: The 1938 labor riots, led by figures like Alexander Bustamante, were pivotal in fostering a political culture of activism and labor rights advocacy. These events laid the foundation for the modern political system, including the formation of political parties like the JLP (Jamaica Labour Party) and PNP (People’s National Party). ○ Post-Independence: Independence in 1962 symbolized self-determination, leading to a stronger focus on civic rights and responsibilities. However, the political culture retained some colonial hierarchies, such as the Governor-General as a symbolic link to the British Crown. A country’s institutions and structures ○ Westminster Model: The adoption of the Westminster Parliamentary system means that Jamaica’s political culture includes features like a dual executive (Prime Minister and Governor-General), bicameral legislature (Senate and House of Representatives), and first-past-the-post elections. This structure fosters partisanship and reinforces majoritarian rule, with limited representation for smaller parties. ○ Two-Party Dominance: The JLP and PNP have alternated power since independence, creating a political culture rooted in loyalty to these parties. For example, elections often feature high voter turnout among die-hard supporters but growing apathy among undecided voters due to perceptions of stagnation or corruption. A country’s economy ○ Economic Dependency: Jamaica’s reliance on tourism and bauxite exports fosters a political culture sensitive to global economic fluctuations. For instance, economic hardships have often fueled protests, such as the gas riots of 1999. ○ Inequality and Disengagement: High poverty rates and income inequality lead to political disengagement in marginalized areas, where citizens feel excluded from decision-making processes. Rural communities may focus more on local survival needs than national politics. Geo-politics ○ U.S. Influence: As a close neighbor to the United States, Jamaica’s political culture reflects American influence in areas like trade, foreign policy, and cultural trends. For instance, the Cold War saw Jamaica aligning with U.S. interests under JLP leadership while experimenting with democratic socialism under PNP’s Michael Manley. Paryss Henry 2024 Paryss Henry 2024 ○ China’s Growing Role: Recent investments by China in infrastructure projects (e.g., highways, ports) have sparked debates about dependency and sovereignty, influencing public perceptions of global geopolitics. The process of political socialisation ○ Family and Partisanship: Political loyalties are often passed down through generations, leading to entrenched partisanship. Families in JLP strongholds like St. Andrew North often perpetuate loyalty to the party, while PNP dominates in areas like Westmoreland. ○ Education: Schools emphasize Jamaica’s history and democratic traditions, promoting civic responsibility. However, limited critical engagement in curricula can reinforce passive acceptance of existing structures. ○ Media and Social Media: Traditional media and platforms like Instagram and Twitter shape political discourse, particularly among youth. For example, social media campaigns during elections have mobilized younger voters. Race and gender ○ Racial Dynamics: The legacy of slavery created a racial hierarchy, historically privileging light-skinned elites in politics and economics. However, modern political culture increasingly celebrates Afro-Caribbean identity, with leaders like P.J. Patterson breaking barriers. ○ Gender Inequality: Women remain underrepresented in politics, though efforts like the Bureau of Gender Affairs promote gender inclusivity. Notable figures like Portia Simpson-Miller, Jamaica’s first female Prime Minister, challenge traditional gender roles but highlight the need for broader systemic changes. Factors that Change political culture Rapid rise in education ○ Increased access to education has empowered citizens to critically analyze political processes and demand transparency. Programs like PATH (Programme of Advancement Through Health and Education) have increased school attendance among marginalized populations, broadening civic awareness. ○ Tertiary institutions, such as the University of the West Indies (UWI), have produced politically conscious youth leaders who advocate for issues like climate change, economic reform, and gender equality. ○ The rise in education has also created an informed electorate, which holds politicians accountable, though some argue that partisanship still undermines this progress. Access to information (especially through advance and proliferation of technology and the internet) Paryss Henry 2024 Paryss Henry 2024 ○ The widespread availability of smartphones and internet access has revolutionized how Jamaicans engage with politics. Platforms like Twitter and Facebook are used for political campaigns, citizen journalism, and organizing protests (e.g., recent demonstrations against mining in protected areas like the Cockpit Country). ○ Access to global news influences political opinions, as citizens compare Jamaica’s governance with international standards. For example, discussions around climate resilience draw from global narratives on sustainability. Population movement (internationally and regionally) ○ International Migration: The Jamaican diaspora, particularly in the U.S., U.K., and Canada, influences local political culture by remitting funds, advocating for policies like dual citizenship, and participating in elections when possible. ○ Regional Migration: Movement of Caribbean nationals to Jamaica for work or study fosters cultural exchange, diversifying political perspectives. For instance, the CARICOM Single Market and Economy (CSME) facilitates such mobility, shaping attitudes toward regional integration. Rapid Urbanization ○ Urbanization has transformed political dynamics, particularly in metropolitan areas like Kingston. Urban residents are more likely to participate in protests and demonstrations due to proximity to government centers. ○ Urbanization has also exacerbated inequalities, with garrison communities (e.g., Tivoli Gardens) fostering strong political loyalties tied to clientelism. However, younger urban populations are increasingly rejecting this model in favor of issue-based politics. Opportunity structure (access to certain social amenity and other class and ethnicity structures) ○ Access to healthcare, education, and employment opportunities shapes how citizens view the government. For example, rural communities often feel neglected compared to urban centers, influencing political dissatisfaction. ○ Ethnic and class disparities continue to impact political participation. The elite class often dominates political leadership, while marginalized groups, though politically active, struggle for representation. Features of Political Culture in Jamaica Clientelism (vote buying) ○ Definition: Clientelism refers to a political system where material goods or services are exchanged for political support, often fostering dependency on political leaders. Paryss Henry 2024 Paryss Henry 2024 ○ Political parties and candidates often use resources like jobs, housing, or infrastructure projects to gain the support of voters. ○ Garrison communities such as Tivoli Gardens in Kingston epitomize this dynamic, where loyalty to a political party is tied to tangible benefits. Patronage (links) ○ Definition: Patronage involves the allocation of government positions, contracts, or other benefits to loyal supporters or allies. ○ Government positions and contracts are often awarded based on political connections rather than qualifications or open competition. ○ The public sector is frequently criticized for being bloated with politically appointed officials. ○ Charismatic Leader ○ Leaders like Michael Manley (PNP) and Edward Seaga (JLP) exemplified this feature, using their personalities to galvanize massive support during elections. ○ Charismatic leadership can create a cult of personality, where loyalty to the leader supersedes allegiance to democratic principles or party ideology. ○ Mamma P used her down to earth and maternal characteristics to

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