Law and Governance PDF

Sources of Law: This will cover *Common Law *The constitution *Legislation *International Law Common Law As a source of law, common law is a body of law developed by judges over a period of time in a course of dissolving disputes. Also called Case Law. The judge will look at the facts of the face,...

Sources of Law: This will cover *Common Law *The constitution *Legislation *International Law Common Law As a source of law, common law is a body of law developed by judges over a period of time in a course of dissolving disputes. Also called Case Law. The judge will look at the facts of the face, the claims of both parties to the dispute, and will develop a rule of law that will govern this particular situation. The Common Law is therefore developed on a case-by-case basis. In each case, the court builds on the principles stated in the previous cases. Common Law principles usually apply when there are no other statues (legislation) to govern particular issues or where the statutes do not have enough provisions or are insufficient. Central to the common law is the Judicial Precedent (Stare decisis—let the decision stand). This doctrine allows the judge to look to previously decided cases on the same issue to find the relevant law upon which to base his decision. The principles of law found in these previously decided cases are called Judicial Precedence. There are two types of precedence: (1) Binding Precedence and (2) Persuasive Precedence. Binding Precedence: These are those principles in a case that a judge MUST follow. These cases usually come from a higher court. For example, a decision from the Privy Council is binding to the court of appeal in Jamaica. However, a court is not bound by the decision made by a lower court. Persuasive Precedence: Those principles in a case that merely offer guidance. The judge may refer to those precedents, but he is not bound to follow them. These cases may originate from lower courts or courts in other jurisdictions. The degree of persuasiveness of a precedent depends on a number of factors. E.g *The status of the court making the decision (a lower court’s decision may be ignored), *the date of the decision (laws may have changed since then), *and the reputation of the judge who presided when the precedent was set. Avoiding Precedents: Judges can avoid precedents in certain cases: Overruling decisions: A decision may have been overruled by a statue or by a higher court. Judges are not bound by overruled decisions as the court will take the view that the law has changed since that case was decided. Distinguishing Precedents: A precedent need not be applied if it can be distinguished on the facts. To distinguish a precedent, the court must point to a material difference in the facts of the precedent and the current case. (E.g. a case that relied on visual/facial identification of an alleged criminal, while the present case does not) Reversing a Decision: A judge does not have to follow a decision that has been reversed. A previous decision has been altered or reversed when for example: an appellate court has applied the same relevant principles of law and arrived at a different conclusion. (Note that the appellate court in Jamaica is the Court of Appeals) First Impression Decisions: Where there are no existing precedents on a particular issue, the judge must create a precedent. Advantages and Disadvantages of Precedents Precedents offer legal certainty and precision, and therefore assist the legal decision-making process. However, it also creates rigidity within the legal process and therefore important legal changes might not take place. Week 2: Sources of Law II Sept 12, 2018 Public vs Private Law The Law: The law is a set of rules enforced by courts which regulate the government of the state and govern the relationship between the state and its citizens. Law can also be defined as a system of rules which a particular country or community recognizes as regulated actions of its members and which it may enforce by the imposition of penalties. Classifications of Law:  A. Public Law: There are Three Special Areas (i) Constitutional Law (ii) Administrative Law (iii) Criminal Law—These consists of offenses to the state. In these cases a prosecutor prosecutes a defendant. Prosecutions are brought in the name of the crown, signified by R for Rex (King) or Regina (Queen). For example, the case title: R v Smith. Here Smith is the defendant being accused of a crime against the state. These offenses include murder, theft, drunk driving, etc. B. Civil Law: This constitutes of disputes between private individuals. In these cases a claimant sues a defendant. An example of a Case title is Sinclair vs. Chadrie. These cases will include breach of conduct, property laws, etc. Constitutional Law: The Constitution is considered the supreme law of the country and any law that conflicts with the constitution is void. Parliament can only exercise its function within the bounds of authority given to it by the constitution. The court has the power to strike down laws that are considered unconstitutional. The constitution consists of different kinds of provisions and each require different procedures for amendment, such as (1) Ordinary Provision: which requires a simple majority vote in both houses of parliament. (Recall a simple majority is 50% + 1 more) N.b both houses here in Jamaica, refers to the Lower House called Parliament and the Upper House called the Senate. (2) Entrenched provision: these require a special majority vote (two-thirds of both houses). One example of an entrenched provision is the right to the privy council as a final court of appeal. A two-thirds majority in both upper and lower houses is required to amend this provision. (3) Deeply entrenched: These require a special majority vote and a referendum (a public vote). One example of a deeply entrenched provision is the one that places the queen of England as the Head of State in Jamaica. Note: You should follow news outlets and read the news for this course. The Constitution protects the fundamental rights of every citizen of a country. Also, it legitimizes the state through the existence of an independent body of law which regulates the state—the organ of the government and the boundaries of the state.  Legislation The term legislation refers to laws in the form of acts passed by parliament. Usually, the legislation is passed by a majority of the votes in parliament and they cover a wide range of activities. International Law International law is also called Public International Law, or Law of Nations. It is the body of legal rules, norms and standards that apply between sovereign states and other entities that are legally recognized as international arts. Two of the main sources of international law are Treaties and Customs (Customary International Law). Treaties are signed agreements between two or more states on a particular matter (or matters). Customary International Law is that law which has evolved from the practice or customs of a state. For laws to be considered customary, they must meet specific criteria: Opinio Juris: This refers to a conviction or a psychological belief by a state with respect to certain rules. State practice: Laws that are practiced are widely accepted by other countries and they are practiced consistently by the state. Jamaican’s judicial system has a five-tier court structure and has a hierarchical function to its operation. In ascending order, the courts are: Petty Sessions Parish Court/ The Resident Magistrate’s The Supreme Court The Court of Appeal The Privy Council Not all Caribbean Countries have this Court Structure, e.g Barbados and Trinidad don’t have Petty Sessions. In addition to this, Barbados, Belize, Guyana, and Dominnica utilize the Caribbean Court of Justice (CCJ) as their final court of appeal. Petty Sessions Court The Petty Sessions is the lowest court in the judicial system of Jamaica and it holds limited jurisdiction. Cases are heard by Justices of the Peace (2-3) and it requires a minimum of 2 JPs to be properly constituted. Important to note is that the Parish Court Judge can preside over matters in the Petty Sessions. Where the functionality of the court is concerned, it has the ability to conduct sessions pertaining to several things such as: threatening to kill, application for liquor license, resisting arrest, minor/petty theft and disrupting public order. Criminal cases are prosecuted by a Deputy Clerk of Court or in some instances, a police officer. Whereas in civil cases parties can elect to represent themselves or utilize an attorney. In criminal matters, the court has the jurisdiction to fine up to $2000.00 or a sentence period not exceeding three months. In civil matters brought before the court, the claim cannot exceed $10,000.00. Dissatisfied parties hold the right to appeal to the Supreme Court. N.b Fines are in public law, issued by the state; claims occur in civil law—disputes between individuals. The second court in the hierarchy is the Resident Magistrate’s Court, officially renamed “The Parish Court” in 2015. In addition to this name change, judicial officers of these courts will no longer be referred to as Resident Magistrates, but as judges of the Parish Court. The main criteria needed to become a Parish Court Judge is a minimum of 5 years at the bar—i.e a practicing attorney for at least 5 years. Parish courts are located in every parish, usually in the capital of that parish. However, unlike other parishes, Kingston and St Andrew has four. Family, Drug, Traffic and Criminal. The parish court is a creature of statute, which means that the court has a limited jurisdiction in the parish in which it is located and one mile beyond its boundary line. The parish court has the ability to hear both criminal and civil matters but it is limited to the matters it can hear. The cases that can be dealt with at this level include: recovery of rent or possessions, actions for negligence, and breach of contract. Other cases/matters that are dealt with at the Parish Court are easily identifiable based on the divisions of the Parish Court. These include: Traffic Court, Gun Court, Coroner’s Court, Drug Court, Night Court, Tax Court, Family Court, Juvenile Court, Small Claims Court. The limitation of the parish Court is also visible in the fact that the court cannot hear matters pertaining to rape, murder and manslaughter. However in such cases, committal proceedings are done. to determine prima face (these determine if the court is sufficient to hold the trials). At this level, Prosecution is conducted by a Clerk of Court. Or a representative from the Officer of the Director of Public Prosecutions. The Parish Court has the jurisdiction to impose fines of up to $1,000,000.00 (1 million dollars) or a custodial sentence not exceeding 5 years. (In Jamaica, usually only forgery goes up to 5 years—the other crimes are kept at 3) In civil matters, the maximum claim is $1,000,000.00 (1 million) however in Real Estate matters, it can go up to $3,000,000.00 (3 million). Appeals from the Parish Court are made to the Court of Appeal. Supreme Court: As the third tier in the hierarchy, is the Supreme Court which is also referred to as the high court. The Supreme Court is a trial court of first instance and it is a superior court of record. Matters are heard by a judge and jury (Criminal cases), judge alone (Civil cases), and three judges (Constitutional cases). In those cases, the judge does not find someone innocent/guilty. Only in the Petty Sessions/Parish Court do we have judges deciding guilt. The head of the Supreme Court and the entire judiciary is the Chief Justice (Brian Sykes in Jamaica). The Chief Justice is assisted by other judges of the supreme court called puisne (pronounced puny) judges. And to be a Supreme Court Judge, one must have at least ten years legal experience. Nb: The Chief Justice is appointed by the Governor General on recommendation from the Prime Minister after consultation with the leader of opposition. Puisne judges (24) are appointed by the Governor General on recommendation from the judicial services commission. N.b: The same holds for the senior Puisne Judge. Criminal matters are prosecuted by council (lawyers) from the Office of the DPP (Director of Public Prosecutions) and in civil cases, parties are represented by their respective attorneys. The criminal functioning of the court is referred to as the circuit court which is convened periodically in each parish to hear matters arising from that parish. When this takes place, the title given to the court is from the parish in which it is sitting. E.g, The St Catherine Circuit Court. This does not hold true for Kingston and St Andrew as the circuit court in this parish is known as the Home Circuit Court. There are four divisions of the Supreme Court: 1. The Revenue Court est. 1971 (Taxes) 2. Gun Court est. 1974 3. Western Regional Gun Court early 2000s. 4. Commercial Court which began operations in February of 2001. (Business related matters e.g Corporate) Appeals from the Supreme Court are made to the Court of Appeal. Court of Appeal Like the Supreme Court, the Court of Appeal is also a court of record. This court is headed by a President who is appointed in the same manner as the Chief Justice. The court of appeal is staffed by the President and Judges of Appeal who are appointed by the Governor General on recommendation from the Judicial Services Commission. The Court’s Jurisdiction, extends to hearing both criminal and civil cases from the Parish Court and Supreme Court. Nb: At minimum, three judges sit to hear an appeal. Upon hearing appeals, the court of appeal in issuing a ruling can do one of three things:  (1) Agree with the ruling from the inferior court. (2) Disagree with the ruling from the inferior court and substitute its own. (3) Disagree with the ruling and send the matter for retrial. Appeals from the Court of Appeal are made to the Privy Council. Privy Council The Judicial Committee of the Privy Council (JCPC) or simply ‘The Privy Council’ is the final court of appeal in the Jamaican Judicial System. The Privy Council is the highest appeal court for all Commonwealth Caribbean Countries except Belize, Guyana, Barbados and Dominica (which utilize the Caribbean Court of Justice). 5 Judges normally sit to hear an appeal, however this number can increase to 7 or 9. The Privy Council hears appeals on every matter except election disputes unless such disputes are grounded in Constitutional interpretation. The Privy Council is never a court of first instance meaning that cases cannot be brought directly to the Privy Council. In issuing a ruling, the Privy Council has no limit on its jurisdiction meaning that there is no upper limit on the monetary value of cases or fines and sentence periods. Nb: ROYN—Read Over Your Notes. Caribbean Court of Justice (CCJ) --located in Trinidad and Tobago; functions as an appellate court, yet is used only by four Caribbean countries not including T&T Caribbean Court of Justice (CCJ) is located in Trinidad & Tobago. Established in February, 2001 by “The Agreement Establishing the CCJ” (visit CCJ website) Had its inauguration (opening ceremony) in Trinidad in 2005. Can travel to hear cases (an itinerant court); can sit in the territory of any contracting party In 2012, CCJ sat in Barbados and Jamaica for the case of Shanique Myrie. There was a cavity (body) search by officials in Barbados, and she alleged she was ‘finger-raped’ and left overnight. She sued, the matter went to the CCJ, and she was given compensation. Case involved the free movement of persons within CARICOM. (read up on it, on CCJ website) CCJ has 7 judges (inc. President). Recently got a new President, Justice Adrian Saunders (from SVG). 2 judges are from Trinidad, one judge is Jamaican—Winston Anderson. CCJ will foster development of Caribbean jurisprudence (philosophy of law)—i.e. it handles judgments relevant to our region—and will lead to greater integration (hopefully). The CCJ has two (dual) jurisdictions—an appellate, and an original jurisdiction. Under the appellate jurisdiction, the CCJ will hear appeals from local courts within CARICOM; both civil and criminal cases. Only so countries so far have joined the appellate jurisdiction—Barbados, Guyana, Belize & Dominica. Under the original jurisdiction of the court, it will deal with cases involving the interpretation and application of The Revised Treaty of Chaguaramas (which establishes CARICOM). The court under this jurisdiction will deal with trade issues, and the rules of free movment within CARICOM. N.b: The Shanique Myrie case was held under the original jurisdiction. Once the CARICOM treaty is signed, a country automatically becomes a part of the original jurisdiction. The appellate jurisdiction however is something each country must decide. Arguments In The Privy Council vs. CCJ Debate Privy Council—located in the UK. Final court of appeal for most former British colonies. Usually has 5 judges; technical cases may go up to 9 judges. Arguments Concerning Abolishing & Retaining Appeals to the Judicial Committee of the Privy Council (JCPC) N.b any arguments against the JCPC, are naturally for the CCJ. And vice versa. Any question skewed towards one particular court, must include mention of the other court to be critical. Sovereignty Argument: Independent countries should no longer refer legal matters to an outside court consisting of largely British judges. We should be able to make and interpret our own laws without reference to foreigners. We must break the psychological dependence, remove the remnants of British colonialism, and some writers say we must cut the umbilical cord and cut the apron strings. Some say, by virtue of being sovereign, we can also choose to stay with the Privy Council. Location of the Privy Council & the Issue of Bias Argument: The location/distance of the Privy Council has been an issue. The judges are far removed from the local situation and the culture and this may affect the validity of their decisions. Lord Hoffman, a privy council judge, giving a speech (in T&T) in 2003 noted that although the Privy Council had done its best to serve the Caribbean, our remoteness from the Caribbean Community has been a handicap. He said they were cautious in doing anything that might seem inappropriate in local conditions and being cautious could be an inhibiting factor. An advantage of the distance is that there is less likelihood of bias (it is hardly likely that any British judge would know the party in question). On the other hand, the matter of bias could be used against the CCJ (not being proven, just argued), as some hold the view that such a court could be subjected to political influences. Visa Requirements In order to appear before our final appellate court, a visa is required (can’t go to England w/o going to the High Commission) and there is no guarantee that it will be granted. Arg/Fac inc. Mr Grant—fired as teacher, wanted to go to Privy Council, was denied visa. Access and Cost Argument: There will be greater access to the CCJ than to the privy council as the CCJ is an itinerant court that travels within the region (as it did in the Shanique Myrie case). In relation to civil matters, it is said that only the wealthy  can take matters to the Privy Council (large companies e.g). In criminal matters, it is largely death penalty cases, and those matters are usually supported by International Human Rights Agencies. *one writer said only the wealthy (large companies) and the wicked (sentenced to death penalty) can make it there. Although the Privy Council is free to litigants (persons a part of a lawsuit), appearance before the Privy Council will involve costs such as air fare, hotel, and other living expenses. According to Vasciannie (2015), in Jamaica in some years there have been more than 300 cases before the court of appeal but no more than 10 of these proceed to the Privy Council. Also, if the Privy Council were to visit Jamaica, the country would have to pay for their stay, while when the CCJ visited, it took care of all its own expenses. Quality of judges Argument: Some speculate that our judges will not be able to produce the quality of judgments handed down by the Privy Council. The Privy Council has a good track record and has been in existence for years. The judgments from the Privy Council will be more objective and impartial. Some note the fact that the PC is human rights-oriented. And this will be reflected in their judgments. It is believed that foreign investors trust the PC. E.g if they were to have a civil matter locally, they have the comfort of knowing that the case could be taken to the PC. Condition of Our Local Justice System Many persons argue about the poor state of the local court. E.g Backlog of cases and poor infrastructure. And so improvements should be made before we leave the Privy Council (made prior to the setting up of the CCJ). Issue of a Referendum (pl. referenda) Some argue that in a democratic society, there should be a referendum (putting the matter to a public vote) on whether the Privy Council should no longer be the final appellate court. Arguments against a referendum: it would be costly individuals may vote along political lines, A referendum is not required by section 110 of the Jamaican Constitution which grants the right of appeal to the privy council. And the Privy Council can be removed by a simple majority vote in both houses of parliament. N.b In some Eastern Caribbean Countries, they are expressly required to have referenda by their constitutions. A constitutional referendum was held in SVG in Nov, 2009. One aim, inter alia, was for the Privy Council in London to be replaced by the CCJ. With the voting results, the referendum did not have the two-thirds majority support that was required by their constitution. Funding of the CCJ Before the CCJ was established, the argument was that Caribbean Countries could not afford their own court (in other words, stay with the PC). Note however that through the CDB (Caribbean Development Bank), participating states raised the sum of US $100,000,000. These funds were placed in the CCJ trust fund which is administered by an independent board of trustees. Now the annual costs of the court are to be funded by the interest accruing to the trust fund. Each country will repay a stated portion of the $100,000,000 USD. Trinidad and Tobago will contribute 29.73% of this amount. Jamaica will contribute 27.09%. Barbados 12.77%. Antigua and Barbuda 2.11%. Some fear that there is a risk that the funds could be depleted and if that happens, we may have to recontribute to the funds (view of Prof. Oswald Harding, Sunday Gleaner, Oct 7, 2012). Next week Political and Constitutional Issues The CCJ case Charter of Fundamental Rights and Freedoms Abortion N.B Need to get more jurisprudence here in the Caribbean. Week 5: Political & Constitutional Issues in the Debate. Oct 3rd, 2018 (Privy Council vs CCJ as final court of appeal) Some Eastern Caribbean Countries are expressly required by their Constitution to have referenda (plural of referendum). Note the example of St Vincent and the Grenadines (SVG). They had a referendum in 2009 but did not get that two-thirds majority. In Jamaica, there are relevant political and constitutional issues. One political party (The Jamaica Labour Party or JLP) led by Edward Seaga at the time, appears to hold the view that the Privy Council is a good source of justice and has argued that a referendum should be held so that the people can decide. The other party (The People’s National Party—PNP—under P.J Patterson) is of the view that a referendum is not required under the constitution. Another issue for the Jamaica is the CCJ case of 2005. Note that the Independent Jamaica Council is diametrically opposed in their views on a referendum. In 2005, Jamaica wanted to replace the Privy Council with the CCJ. Now three (3) pieces of legislation were passed by parliament by way of the procedure for ordinary legislation (which is by simple majority—50% +1 more). The issue was whether Jamaica utilized the correct procedure according to the constitution. The main implications from the ruling of the Privy Council is that change to the CCJ could be established by a two-thirds vote of both houses of parliament. At page 51 of the judgement, the Privy Council noted that the procedure appropriate for the amendment of an entrenched provision should have been followed. According to Prof. Vasciannie, (Arguments & Facts, page 44) the Privy Council did not suggest a referendum was required. This matter was left open. On page 59 of the same book he writes “A referendum could be an alternative, but it may be difficult to justify this as a constitutional requirement”. In 2015, the 3 pieces of legislation were passed in the Lower House who got the required two-thirds vote. However, the final vote in the senate was postponed so that a committee from both parties could review the issue. Lord Phillips in 2009 noted that the ‘Law Lords’ at the Privy Council were spending a disproportionate amount of time on cases coming mostly from the Caribbean. He further said, “In an ideal world, Common Wealth Countries including the Caribbean should set up their won final courts of appeal, rather than using the Privy Council” The comments were interpreted by many as an invitation to leave. A part of the debate is that we have been indirectly asked to leave. However, the formal position of the Privy Council is that we can stay indefinitely. Provisions for Safeguarding the Independence of the CCJ judges One argument was the fear that the CCJ would be open to political influence, however note the following provisions safeguarding the independence of the judges. (1) There is an independent appointment process. *A special commission was set up that will have the responsibility for appointing the judges, i.e. the Regional, Judicial and Legal Services Commission; * the commission does not have any political representatives. *The judges will also be removed by a majority vote of the commission (with the exception of the President of course). *The appointment is such that the judges will be insulated from Politics. (2) Security of Tenure: The judges hold office up to the age of 72 years and may continue up to age 75 in special circumstances. The office of a judge shall not be abolished while there is a substantive holder of that office (his post cannot be made redundant; can’t be arbitrarily fired). (3) Dismissal: The judges can only be dismissed on the recommendation of the Commission, acting on the advice of a tribunal. And in the case of the President, he shall be removed by the heads of government acting on the recommendation of the Commission that will in turn be acting on the advice of the tribunal. The judges may be removed from office only for the inability to perform the function of the office arising from illness or misbehavior. Note that the appointment and dismissal is designed to insulate the judges from political manipulation. (4) Remuneration: Judges will enjoy certain privileges and immunities in order to further protect their independence. For example, the judges have immunity from personal arrest or detention for acts one in their official capacity. They are immune from legal process for words spoken or written in their official capacity. There is a code of judicial conduct that states that judges shall not be members of Political Parties and shall refrain from political gatherings. They should perform their duties without bias or prejudice. A judge should not accept gifts that have any bearing/connection to the performance of their judicial duties. Finally, they are accountable for their conduct to an institution set up to implement the code of conduct. Next week: Abortion and the Right to Life. Read up on the Charter of Fundamental Rights and Freedoms (2011). It is on OurVLE. It replaces the older chapter 3 in the constitution. The Charter includes the right to Life Liberty Religious Freedom Vote Freedom of Expression (speech) Freedom of Assembly Freedom of movement  Equality (freedom from gender discrimination) Privacy A healthy environment A Passport (there are exceptions) Not be tortured; subjected to cruel/inhumane treatment Protection of the life of the unborn Due Process Education up to the primary level Abortion (falls under The Right to Life) International Law, Case Law, Domestic Law…. Different Countries… Definition: The termination of a pregnancy that is purposefully done and the foetus is removed from the womb before it is viable. Abortion and International Law: The ICCPR (The International Covenant on Civil and Political Rights) speaks to the Right to Life in article 6 But it is silent on the issue of when life begins. Article 6 states, inter alia, that every human being has the inherent right to life. That right shall be protected by law. No-one shall be arbitrarily deprived of his life. Suggestions were made at the time of this treaty that words should be included to indicate that life should be protected from the moment of conception. That suggestion was rejected because it was difficult to determine the moment of conception. Another approach was taken in the Inter American Convention on Human Rights in article 4 (paragraph 1), which states that 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. Note however The Baby Boy Case (1981), which was addressed by the Inter-American Convention on Human Rights. Article 4(1) was under scrutiny. And it was held that it did not prohibit abortion in all cases. The phrase ‘in general’ was emphasized and it was noted that it could possibly allow for abortion in cases of rape or to save the mother’s life. According to Vasciannie (2015), we are not sure what the other exceptions are, if any. It is argued that international law has left us with some uncertainty. And th ruling suggest that the right to life does not always begin from the moment of conception Abortion and Domestic Law (with specific reference to Jamaica) See Section 13(3)(a) of the Charter of Fundamental Rights and Freedoms (2011) Note the Charter of Fundamental Rights and Freedoms (2011) speaks to the right to life, liberty and security of the person. The important question is whether the right to life provision is also guaranteed to the unborn child. Note however section 13 (12) of the Charter which states that laws relating to offences regarding the life of the unborn shall not be held inconsistent or in contravention with the charter. Fun fact: This is the first time the constitution has spoken about abortion. This is often called a savings clause protecting the right of the unborn. The relevant provision in domestic law would be sections 72 and 73 of the Offences Against the Person Act (OAPA). Section 72 says: Every woman being with child who unlawfully administers any poison or noxious thing to herself or unlawfully uses any instrument with the intent to procure her own miscarriage shall be liable to be imprisoned for life. And whosoever unlawfully administers any noxious substance to the woman with the intention to procure her miscarriage shall be liable to the same punishment. N.b under section 44 of the interpretation act, imprisonment for life would be the maximum sentence and a judge is liable to use his discretion to give a lower sentence. Under Section 73 any persons who unlawfully supply any poison or instrument with intent to procure the miscarriage of any woman, shall be liable to 3 years imprisonment. **Both sections appear to be absolute and speak to no exceptions. Both sections however repeatedly refer to unlawful activities. And the emphasis on unlawful activities could mean that there are lawful ways of carrying out an abortion. Case Law/Common Law See the case of R v. Bourne (1939) where R represents Regina (the queen) R v. Bourne (1939) is an English case that considered similar provisions to Jamaica’s OAPA. The judge specifically considered the term ‘unlawfully’ and noted that there could be unlawful and lawful forms of abortion and the case before him was lawful. This was the case of a 15-year old girl who had been raped, and Dr. Bourne took no payment; it was an act of charity. He genuinely believed he was doing the right thing and he acted to preserve the life of mother. Now Bourne’s case has been criticized based on the fact that it is a first instance decision that turned on its exceptional facts. It does not state who may perform this lawful abortion and at what stage of pregnancy it can be carried out. Bourne’s case was followed in R v. Newton. Stungo which noted that a miscarriage could be procured to preserve the life and health of the mother. Class Question: Should the father have a say where abortion is concerned? See case on Paton where a father’s claim was defeated. 1975 Ministry of Health Guidelines These provide that abortions could be carried out in certain circumstances e.g fetal abnormality, cases of rape, and to protect the health of the mother. This however is not law and cannot overthrow/overturn the provisions of sections 72 and 73 of the OAPA. Reform Process in Jamaica Note that an abortion policy review group considered the issue of abortion in Jamaica in 2008. It was recommended that the relevant sections of the OAPA be repealed (taken out of law) and a termination of pregnancy act be passed. The group noted that termination of pregnancy would be allowed in certain circumstances, and pre as well as post-abortion counselling would be recommended. (read more online) However in June 2018, Parliament was asked to consider the recommendations of the abortion policy group. Currently a joint select committee of Parliament is reviewing the issue. Approach to the Question of Abortion in Different Countries Roe v. Wade (1973, USA); in this case, the right to an abortion is based largely on the privacy rights of the mother. And the mother’s right to privacy is balanced against the interest of the state in the welfare of the foetus. As the baby grows, the interest of the state also grows. E.g in the first trimester (up to 3 months), abortion is generally available if done by a licensed physician. In the second trimester (up to 6 months), abortion is prohibited unless necessary to preserve the life/health of the mother. In Britain, an abortion is lawful if for example, prior to the 24th week of pregnancy, two medical doctors believe in good faith that the pregnancy would be a risk to the physical or mental health of the woman. In Barbados, there is a Medical Termination of Pregnancy Act of 1983. And for example, if prior to the 12th week of pregnancy, a medical practitioner is of the good faith opinion that the continuance of the pregnancy would involve a risk to the mother’s life or will cause serious injury to her physical or mental health, then an abortion may be carried out. They will also consider if the pregnancy was a result of rape or incest; and if the child is born, whether they will be a substantial risk of it being seriously handicapped. Barbados will also consider socio-economic conditions. In Guyana, there is a Medical Termination of Pregnancy Act (1995)…. (look it up). Depending on the stage of pregnancy, an abortion may be administered in an approved institution. Also whether the pregnancy will be of great risk to the mother’s life, or cause injury to her physical or mental health; also the risk of the child being born with abnormalities. They will consider whether the pregnant woman is known to be HIV+, and consideration will be given to whether a recognized form of contraceptive method was utilized and failed. (whether the pregnancy resulted in spite of the use of a recognized contraceptive method) In St Lucia in 2004, the Criminal Code was modified to protect the woman’s physical and mental health. Abortion will also be allowed in cases of rape and incest. But the woman must provide a police report to substantiate her claim (that she was raped etc) Arguments Against Abortion (Pro-Life): *Contrary to religious principles *Violates sanctity of life *Life begins at conception *Health risks are associated with abortion *Children should be put up for adoption instead Arguments For Abortion (Pro-Choice) *The foetus is not a human being with a right to life * A woman should have the right to choose * The woman has a right to privacy * Mother’s life and health should be protected *Many women are dying because of abortions that are illegally and improperly done N.b: Do some research and provide statistics in relation to abortion in Jamaica and the Caribbean. Death Penalty Next Week! Death Penalty International Law Note: Treaties on Right to Life (see notes on abortion last week) Article 3 UDHR Article 4 American Convention on Human Rights. *Has a protocol to abolish death penalty. Jamaica and other Commonwealth Caribbean Countries are not a part of this protocol. *Life shall be protected in general from the moment of conception. Article 6, ICCPR *Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of life. 2nd Optional Protocol: aims at abolition of death penalty Commentary: Some writers hold the view that international law does not prohibit the death penalty but rather it imposes restrictions. These restrictions can be found in Article 6 of the ICCPR and Article 4 of the American Convention on Human Rights. They are: (1) Sentence of death may be imposed only for the most serious crimes. (2) The death penalty can only be carried out after a final judgment handed down by a competent court. (3) Persons sentenced to death shall have the right to seek pardon or commutation (reduction) of sentence. N.b sentence of death shall not be imposed for crimes committed below 18 years of age or above 70 years and shall not be carried out on pregnant women. (Check: Death penalty shall not be handed down for political offences; this is in the American Convention) Jamaica and the Death Penalty Domestic Law: The Constitution Section 13.3.a of the Charter of Fundamental Rights and Freedoms speaks to the right to life, liberty and security of the person and the right not to be deprived thereof except where one has committed a crime and has been convicted and sentenced by a court. The constitution therefore preserves the death penalty. Note Section 2 of the Offences Against the Person Act which sets out the category of murders that would attract the death penalty. Namely: (1) Killing a Police Officer/Correctional Officer/Member of the Security Forces/Judicial Officer/Justice of the Peace acting in the line of duty/executing their position. Also,0. A Witness/Party to a Pending/Concluded Court Case. (2) Murder Committed in the course or furtherance of robbery, housebreaking, arson, burglary, sexual offences, and terrorism. (3) Murder for Hire/Contract Killing. (Both the killer and the person who hires them get the penalty) (4) Murder as part of a joint enterprise (two or more persons coming together). The one who inflicts violence and causes death will receive the death penalty. (5) Two counts of non-capital murder. (Non-capital murder is any not on this list). That may be murder committed on the same or a previous occasion. Note that the OAPA was amended in 1992 to allow for above categories of murder to attract the death penalty. *(Prior to 1992, all murders in Jamaica would attract the death penalty) Before 2005 (The year with the Lamberg-Wattson case) these offences attracted the mandatory death penalty. However, since 2005 the sentence for capital murder is now death OR to imprisonment for life. So the death penalty is no longer mandatory in Jamaica and most (all but two) Commonwealth Caribbean countries. All other murders would be classified as non-capital murder and would attract life imprisonment. Note that since 1998 the death penalty has not been enforced in Jamaica; it was last enforced in Barbados in 1993, and St Kitts and Nevis last had an execution in 2008 (part time hangman, charged 880 lbs). Some argue that the Privy Council cases have effectively abolished the death penalty in Commonwealth Caribbean countries (that may be why we are no longer enforcing it). Privy Council Cases: 1. Pratt and Morgan (1993,this case is now null and void in the Jamaican Constitution) Both men were convicted and sentenced to death in 1979 and they both launched petitions to the international human rights bodies. Privy Council noted that in any execution taking place more than 5 years after sentencing, there would be a strong presumption that the delay amounts to cruel and inhuman treatment contrary to the constitution. This is called the 5 Year Rule. The sentence must be commuted from death to life imprisonment. As a result, in 1997 Jamaica withdrew from the first optional protocol to the ICCPR in an effort to reduce the time taken in appealing the sentence of death. Note that the charter of fundamental rights and freedoms (2011) has nullified the 5 year ruling in Pratt and Morgan, in section 13(8). This states inter alia that the length of time which passes between the date off sentence and the date on which the sentence is executed, will not be held to be inconsistent with the charter. N.b Barbados did this in 2002 in section 15 of their constitution. (2) Neville Lewis et al (2000). The case considered whether the appellants had the right not to be executed before the external human rights bodies had finally given their reports on their petition. The Privy Council noted that the petitioner was entitled under the protection of law provision in the constitution, to complete the human rights procedure. Also note that convicted murders are entitled to exhaust all channels of appeals before they are put to death. This case also affirmed the 5 year rule in Pratt and Morgan. (3) Lambert-Watson (2005). This case examined the mandatory death sentence and held that it was a violation of the applicant’s right to freedom from cruel and inhuman treatment. The court notes that consideration should be given to his personal background and the particular circumstances of his case …. It was ruled that Judges in capital murder cases will now have two hearings: a trial to determine guilty/culpability and a sentencing/mitigation hearing…. evidence such as character witnesses with a view to having a lesser form of punishment instead of the death  penalty. As a result of this case, the OAPA was amended in 2 0 0 5 to include life imprisonment as an alternative sentence. (4) Evon Smith (2005). This case illustrates that the death penalty provisions are strictly interpreted by the Privy Council. Smith was convicted for capital murder in furtherance of burglary (broke into a house through a window, and chopped his girlfriend to death). The PC reasoned that the legislation (our OAPA) required more than the sole purpose of committing murder. It required a duality of purpose which was not present in this case. The OAPA contemplated a situation where Smith for example went to steal, and to assist that process, committing murder. They held that he should not get the death penalty (showing us how strictly they interpreted our rules). (5) Daniel Dick Trimmingham (In St Vincent) * Do not leave it out of Privy Council discussions just because it is not in Jamaica. It is relevant to PC cases. It is a gruesome murder which involved cutting off the throat, cutting off the head, slitting the belly, and more. Trimmingham was carrying a firearm and he also stole from the deceased. The man he killed was an old man; this would be murder in the course of robbery. The Privy Council noted the approach that judges in the Caribbean should follow where the death sentence is discretionary. The sentencing judge is required fully to consider the two fundamental principles: The two principles are (1)—the death penalty to be imposed only in cases where the facts are the most extreme and exceptional, the worst of the worst, and the rarest of the rare. In considering where a particular case falls, the judge should compare it with other murder cases and not with ordinary civilized behavior. (2) There must be no reasonably possibility of reform for the offender and the object of punishment unable to be achieved by any other means except the ultimate sentence of death. Their Lordships (the Privy Council) noted that this is a bad case, even a very bad case, but in their judgement, it falls short of being among the worst of the worst such as to call for the ultimate penalty of capital punishment. They concluded that the death penalty could not stand and the appellant in its stead should be sentenced to life imprisonment. (6) Pipersburgh & Robateau (2008). The court noted that the death penalty should be imposed only in the most exceptional and extreme cases of murder. The judge should consider the personal and individual circumstances and the possibility of reform of the convicted person. (7) Lockhart v. R. … The report of a consultant psychiatrist is needed before the question of whether the person can be reformed, is addressed. Next week: Economic Social and Cultural Rights.