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Legal Sources
-Rules of law are derived from various sources in English Law. These include, The
Constitution of Jamaica, legislation, judicial precedents, certain ancient textbooks among
others.
The Constitution of Jamaica: The Jamaican Constitution is the Supreme Law of the
land of Jamaica and all other laws must conform with the Constitution or they will be
struck down.1 In 2011 a new Charter of rights was passed by Parliament, known as The
Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2010
This significantly changed Chapter III of the Constitution.
Traditional human rights protected by our old arrangements, such as the rights to
life, liberty, property, freedom of conscience, expression and movement remain
protected by the new Charter. Additionally, we now have constitutional rights to
equitable and humane treatment by public authorities, not be discriminated against
on the grounds of religion, social class or being male or female, to vote in free and
fair elections and to be granted a passport. The latter goes hand in hand with the
now constitutionally recognized right to leave the island, previously excluded.
The Charter provides a number of more modern rights, including the right of every
child to public primary education and the right to enjoy a healthy and productive
environment free from the threat of injury or damage from environmental abuse
and degradation of the ecological heritage. These seemingly ambitious rights are
nonetheless enforceable by the Charter's express provision for redress, not just
against the state but also in citizen versus citizen litigation. Claims may be brought
by the person aggrieved or by civic organizations with the permission of the court,
where there is an allegation that any of the provisions of the Charter has been, is
being or is likely to be contravened. 2
Legislation: Parliament is responsible for creating most laws and it may delegate its law
making responsibility to other bodies (delegated legislation). The courts also in handing
down judgments which are subsequently followed by other courts also create laws, this is
what called the doctrine of binding precedents. Rules are also meant to regulate
relationships.
Judicial Precedent: This doctrine of binding precedent ensures certainty in the law. Over
a period of time in England , judges began to pay more attention to previous decisions
and not just make a decision based on the individual case before them for determination.
This system of law reporting where cases were published made it easier for judges to
access these earlier decisions.
It then became the established practice that judges were bound to follow the decisions of
higher courts in similar cases. This general rule called the doctrine of binding precedent
was established in the 19th century and has been consistently followed since then.
Textbooks:
Early Textbooks- These books may have been written before law reporting became
established and as such they are sometimes regarded as books of authority at that time.
Modern Textbooks- This is not considered a source of la and not aook of authority. They
may be placed in the category of persuasive authority.
- Jurisdiction: The law of any country is binding only within its territory.
Classification of Law
There are various ways to classify law. One of these divisions is Criminal Law and Civil
Law.
Criminal Law
This area of the law focuses on certain acts of wrongdoings which are seen as offences
against the State and punishable by the State. Crime is defined as an act of disobedience
of the law forbidden under pain of punishment. 1 Anyone who is charged with a criminal
offence is presumed innocent until proven guilty The punishment upon being convicted
of a criminal offence can range from death, or imprisonment to a money penalty (fine),
community service or absolute discharge. Examples of business crimes are fraud, theft
and forgery.
The criminal charge is laid against the accused or defendant. The Case is brought by the
Crown through the Police whose duty as public servants is to prevent and detect crime
and prosecute offenders before the Courts of law.
Civil Law
Civil law is that part of law that is concerned with the rights and duties of individuals
towards each other. It includes the following which are the major branches of civil law:
The chief distinction between criminal law and civil law is that in civil law the legal
action is begun by the private citizen to establish rights against another citizen or groups
of citizens, whereas criminal law is enforced on behalf of or in the name of the State.
The aim of criminal law is to punish the offender, (hence the offender if found guilty may
be imprisoned or asked to pay a fine which goes to the State), whilst the aim of civil law
is to compensate the innocent party (hence the wrongdoer may be asked to pay damages
to the other party for loss suffered).
The main witness in a criminal case (save and except murder) who is usually the victim
of the crime is called the Complainant.
The person who initiates a claim in the civil court is called the Plaintiff or Claimant.
The person against whom the claim is commenced is called the Defendant.
Citation of Cases
Cases names look a lot like football fixture lists, example James v Brown . A case in
the court is essentially a contest between two parties with the judge being the umpire. The
name of the case is usually underlined.
Where cases are determined by a court at first instance , that is heard for the first time, the
proceedings are cited as follows:
Civil Case
(a) James v. Brown
Criminal Case
(b) Regina (or R.) v. Green
If Brown and Green decide to appeal against the decision at (a) and (b), Brown and Green
are called the Appellants and James and Regina are known as the Respondents in the
appeal cases.
The Jamaican Government has three (3) branches which provide a system of checks and
balances to ensure that there is not an abuse of powers by any of these bodies. There is a
separation of powers and these branches are called the Executive, Legislative and Judicial
Arms.
The Legislature, commonly known as Parliament is where the laws (Statutes) are created.
This branch of government has two houses, the Upper House and the Lower House.
The Upper House is the Senate and compromises 21 Senators appointed by the Governor
General. Thirteen (13) members are appointed on the advice of the Prime Minister and
eight (8) on the advice of the Leader of the Opposition. The Lower House, which is
called the House of Representatives, is where the elected Members of Parliament sit.
The Judiciary is the branch of government that is primarily responsible for interpreting
the law.
The Courts have been given the duty under the Constitution to examine activities
undertaken by the State and determine if acts by the State through its various agents are
inconsistent with the Constitution and therefore of no legal effect. Acts of Parliament are
also subject to review by the Courts to see if there is any inconsistency with the
Constitution.
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The Constitution of Jamaica provides for the establishment of the Supreme Court as a
Court of Origination. Decisions of the Supreme Court upon appeal are heard by the Court
of Appeal which is the highest Court physically located in Jamaica, however under the
Constitution, the highest Court in the Jamaican Court Structure and the final Court of
Appeal from decisions of the Court of Appeal is the Judicial Committee of the Privy
Council which is based in England.
There are other Courts that are not created by the Constitution and have been created by
Acts of Parliament.
There are specialized courts which are divisions of the Resident Magistrates Court.
These include the Family Court, the Juvenile Court, the Traffic Court, Gun Court, Small
Claims Court, the Drug Court and the Night Court.
Civil matters such as recovery of rent, recovery of possession and debt collection of sums
up to $1,000,000.00 per claim are tried at a Resident Magistrates Court. With regards to
criminal offences, the Court has no jurisdiction to hold a trial for murder, treason and
rape. What is held at the Resident Magistrate Court in such cases is a Preliminary
Examination or enquiry into the charge. In this enquiry, the purpose is to determine
whether the evidence is sufficient for the defendant/accused to stand trial at the Supreme
Court. In other words, has a prima facie case been established by the Crown against the
Accused? If the Resident Magistrate finds that a prima facie case has been established
then the matter is sent for trial to the Supreme Court to determine whether the
defendant/accused is guilty or not guilty.
Three divisions of the Supreme Court are the Revenue Court established in 1971 and the
Gun Court established in 1974 and the Commercial Court in February 2001. There has
also been established a Western Regional Gun Court that hears gun offences committed
in the parishes of St. James, Trelawny, Westmoreland and Hanover.
Criminal offences committed in other parishes are heard at the sitting of the Circuit Court
of that parish. The Circuit Court is the criminal jurisdiction of the Supreme Court that is
convened in Parishes. The Supreme Court Judge travels to the parish for the hearing of
criminal offences that were committed in that parish. One of the advantages in having a
travelling court or Circuit court is the fact that if the witnesses and other parties involved
are from the parish where the offence was committed, they do not need to travel to
Kingston for the prosecution of cases. This is convenient and reduces expenses for these
parties.
The Circuit Court held for the parishes of Kingston and St. Andrew is called the Home
Circuit Court, while that which is convened in the other Parishes are named after the
respective Parish, for example, the St. Ann Circuit Court .
Five judges normally sit to hear appeal cases from the Commonwealth.
The Judicial Committee sits in the Privy Council Chamber in Downing Street, London,
England.
Legal Officers
(a) The Attorney-General
Section 79(1) of the Constitution of Jamaica provides that there shall be an Attorney
General who shall be the principal legal adviser to the Government of Jamaica
This is a political appointment. She is the principal legal adviser to the Government.
All civil proceedings by or against the Government are instituted in the name of
Attorney-General.
(c)The Solicitor-General
He and his staff represents the Crown in the Courts in civil matters where the public
interest is concerned. He also advises the Government departments on important legal
matters. He is appointed by the Governor General in accordance with the advice of the
Judicial Services Commission.
Arbitration
The contract may include a clause for a sole arbitrator or two arbitrators. An arbitrator
does not necessarily have to be a legally trained person, although this is recommended.
Mediation
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