LECTURE 3 - THE HIERARCHY OF COURTS

HIERARCHY OF COURTS IN JAMAICA:

Judicial Committee of the Privy Council

Court of Appeal

Supreme Court (Criminal/ Civil Divisions)

Resident Magistrate Court (Traffic/ Coroner/ Juvenile/ Gun court/ Family court)

Petty Sessions


!ETTY SESSION

O 2 JPs, 1 magistrate or all three (sitting) 3 together
O deals with simple matters
O Maximum amount of money you can get in petty session is $10 000. E.g. Gardner not being
paid, mangoes being stolen.

RESIDENT MAGISTRATE COURT (RMC)

O This was created by an act of Parliament
O The resident magistrate court is presided over the resident magistrate who is a person who
has had legal training and who has been in practice as an attorney for at least five years.
O There is a resident magistrate court for each parish (in Jamaica) and that court deals with both
civil and criminal matters. Except in Kingston where there are 2, one for each matter.
O n the resident magistrate court, the judge sits without a jury; the judge is the only person who
decides on both the law and the facts of the case. They are RM in each parish, can only try
matters committed within that parish or if the defendant resides in that parish.
O The jurisdictional limit in terms of money is $250 000
O The RM can impose a maximum sentence of five years.
O The RM also conducts preliminary inquiries for certain offences such as murder, man
slaughter, shooting with intent, aggravated assault with a firearm.
O The purpose of the inquiry is to determine whether or not a case is made out against the
accused. f no case is made out, the accused is free and if a case is made out against him or
her, the case is sent for trial at the Supreme Court.
O There are different types of RM Court sittings
1. Traffic Court (dangerous driving, driving w/o a license),
2. Coroners Court conducts inquests in circumstances where death occurs under suspect
circumstances-simple jury decides,
3. Family Court deals with family matters (domestic violence, property matters, claim
maintenance, custody of children) - it is really reserved for persons who are unmarried
i.e. in common-law unions. There is a limit to the amount of money that the judge can
oblige the defendant to pay.
4. Gun court firearm related offences, illegal possession of firearm,
5. Juvenile Court convened to deal with juvenile cases (14 -17 years old) or offences
involving young persons (less than 14 years) and abandoned children.

2

O n the RM Court, the prosecutor is a trained attorney, a clerk of court or a person designated
by the DPP (Director of Public Prosecution).
O An accused person had the right to be present at his own trial in the RM Court, and can give
his own evidence if he desires (i.e. right to defend himself).
O f not satisfied any appeal from the RM Court goes to the Court of Appeal.
O Certain matters cannot be tried at the RM court- such as slander, divorces, murder, man
slaughter, certain property matters, probate matters (wills).

SU!REME COURT

O The Supreme Court is created by the Constitution.
O The Supreme Court is presided over by a chief justice and a number of puny judges.
O Each sitting of the supreme court is presided over by a single judge (in a civil case), a judge
and jury for most criminal cases and three judges if it is a matter regarding a constitutional
motion which concerns a breach of any fundamental right of the individual by the state
O n cases of murder there are 12 jurors, 7 for any other matter.
O The Supreme Court has unlimited jurisdiction and there is no financial limit!!!
O Any appeal from the Supreme Court goes to the Court of Appeal.
O The prosecutor of the Supreme Court is the DPP or the person appointed by him
O The defendant has a right to be present at his trial; he can defend himself and call on his
witnesses.
O Any matter can be dealt with at the Supreme Court!!
O There are instances in which the Supreme Court moves in 'circuit' to hear matters situated
away from them (the move outside of Kingston).
O Any judge in the Supreme Court must have at least 10yrs experience as an attorney.


COURT OF A!!EAL

O The Court of Appeal is presided over by a president and other judges
O 3 judges will sit to hear a matter at the Court of Appeal - always!!
O A minimum of 3 judges and a maximum of 6 judges along with the Chief Justice
O NO JURY!!
O The defendant cannot appear before the Court of Appeal as of right i.e. he does not have a
right to be there. He can request permission to be there but this is not usually granted.
O The judges must have at least 15 yrs experience as an attorney and they are referred to as
Justices of Appeal.

JUDICIAL COMMITTEE OF THE !RIVY COUNCIL

O This is based in England
O t consists of a panel of 5 judges at any one time
O These judges are referred to as Law Lords or Lords of Appeal and their decisions are based
on a majority.
O The Privy Council hears
1. criminal matters,
2. civil matters,
3. matters regarding divorce and property rights in special circumstances,
4. matters concerning interpretation of the constitution.

3

O Trinidad & Tobago and Antigua (exclusively) have at the Supreme Court level, a type of court
called the ndustrial Court.
O t deals with all labor related matters and all appeals from the ndustrial Court go to the Court
of Appeal in these jurisdictions.
O Barbados is also unique in that it no longer appeals to the Privy Council
O The highest court of appeal is the Caribbean Court of Justice (CCJ).


CARIBBEAN COURT OF JUSTICE (CCJ)

O This is a proposed court that will replace the Privy Council as the highest appellate court in the
Caribbean.
O This court was first proposed in 1970 at the 6
th
Heads of Government Conference in Jamaica.
O The court is designed to have dual jurisdiction comprised of original jurisdiction and appellate
jurisdiction.
O n its original jurisdiction, the court's function will be totally different; the court will deal with
trade relations between countries in CARCOM or CSME.
O The CCJ will be the sole interpreter of the provisions of the Treaty Chaguaramas.
O There is an initial set-up cost of US$ 100 million.
O The Caribbean Development Bank (CDB) has been given the mandate to acquire this money.
O $12 million has been spent on the initial set up (infrastructure).
O The remaining $88 million has been put in trust and is monitored by a board of trustees.
O The annual expenses of the court will be paid for by the interest earned on the $ 88 million.
O Each country party to this agreement has an obligation to repay a set portion of this money
that has been borrowed by the court.
O f a contracting state decides not to pay its portion of the money then the CDB has the option
of recalling all loans given to that particular state.
O This therefore imposes on the contracting states a legal obligation to repay.
O There are certain safe-guards in place to ensure non-payment does not occur:
1. None of the judges of this court will be selected by any political leader/ prime minister
across the Caribbean, rather they will be appointed by a regional judicial and legal
services commission.

2. Secondly, these judges cannot be dismissed at will, they can only be dismissed for
cause; meaning if they are found guilty of misconduct or they are unable to carry out the
functions of office due to ill-health. They enjoy security of their jobs (tenure), they will be
properly paid and their salary cannot be reduced.

LECTURE 4 - ARRGUMENTS FOR & AGAINST THE CCJ

Resident Magistrates Court (continued)

O With respect to the fines, the magistrate can impose a fine up to $ 1 million.
O Magistrate has jurisdiction to sentence a person up to five years for a single offence.
O f you are sentenced for more than one offence you can get more than five years sentenced (5
years per offence).
__________________________________________________________

Arguments in support of the !rivy CounciI instead of the CCJ:

O The Privy Council has history on its side, i.e. it has been in existence for over 700 years and in
that time has developed a good reputation.
O The Privy Council is a court that upholds human rights.
O The Privy Council is far away from the Caribbean, the judges have no connection with persons
in the Caribbean and therefore the court is an objective court because its decisions are made
solely on the basis of law.
O The services of the court are free to litigants (i.e. yeomen).
O The Privy Council judges are well trained (and in effect brilliant).
O Foreign investors trust the Privy Council and will therefore be more inclined to invest in a
jurisdiction served by this court.
O Our local courts are already in a poor state and the money to be spent to set up a regional
court would be better spent fixing our local system so that persons can have access to better
and more speedy justice.

Arguments AGAINST the !rivy CounciI:

O The CCJ is absolutely necessary for the functioning of the CSME (Caribbean Single Market
and Economy).
O Sovereignty and ndependence - once we gained independence we became sovereign states,
adult enough to regulate our own affairs and therefore we should break free from the colonial
past, break all ties with the mother country and take care of our own business. The idea of
retaining the Privy Council goes against the grain of sovereignty.
O The Privy Council being so far away from the Caribbean is out of touch with the realities of the
Caribbean experience. They don't understand the Caribbean psyche, our jargon etc.
O The physical distance also provides a barrier to access to the court, this is reflected in the $
concerns.
O The Caribbean court is designed to operate as an itinerant (moving) court (similar to how the
Supreme Court moves in circuits) to hear matters in different jurisdictions.
O f we have our own Caribbean Court, then we will be free to retain the death penalty.
O There are not many cases that really go to the Privy Council since many persons cannot afford
to pay for it. For e.g. in the period 2000 2002 there were only 110 cases going before the
Privy Council from the Caribbean.

How wiII we be abIe to impIement the CCJ as our finaI court?

Q. Is a referendum necessary?
O For a long while the idea of this court has been debated.
5

O The government says there was no need for a referendum because it was not required under
Section 110 of Jamaican Constitution (section dealing with the right of appeal to the PC).
O The government says, that in the last general elections, the population knew that it was a part
of their (the Governments') mandate that they intended to implement the CCJ and therefore
once persons voted for the party they accepted the mandate and therefore accepted the idea
of the CCJ.
O $ concerns, having a referendum will entail educating the people about the referendum which
will thus cost $
O A referendum will cause further political division
O Many countries have abolished the PC and implemented their own court without having a
referendum and if they can do it without a problem, then so can Jamaica.

!osition of CiviI Society

O Groups in civil society of argued that the method of setting up the CCJ is contrary to
democratic principles because of the termination of appeals for the Privy Council amounts to
the abolition of a right previously held by citizens and therefore the citizens should have say.
O Out of this debate, there was a case sent to the Privy Council, i.e. ndependent Jamaica
Council for Human Rights and Others vs Honorable Syringa Marshall-Burett and Attorney
General of Jamaica.

Facts of the case:
O On ________ 30
th
2004, the Governor General of Jamaica acting under Section 60 of the
constitution gave his accent to 3 bills, the broad effect of which was to abolish the right of
appeal of the Privy Council and to substitute in its place, a right of appeal to a new regional
final court which is the CCJ.
O The legal issue to be decided by the Privy Council was whether the procedure adopted in
enacting the legislation complied with the provisions of the constitution. The Privy Council
found that the bills were unconstitutional on the following basis:
O The court agreed that the provision allowing appeals to the Privy Council (Section 110) was
not entrenched and could therefore be amended by a simple majority in both houses of
Parliament. However the agreement to establish the CCJ expressed a desire to have the CCJ
entrenched in the constitution. n order to entrench the court, certain procedures must be
followed:
4 it requires the votes of 2/3
rd
of the members of Parliament (majority of both houses)
4 Secondly, the votes of the population in the form a referendum.
O Unless this is done we cannot accept the court in its final appellate jurisdiction.

The Attorney GeneraI:

O The AG serves as chief legal advisor to the government and his duties are effectively performed
by the Solicitor General. The Solicitor General serves as the Government's defense in suits
brought against it (in civil proceedings).

The Director of !ubIic !rosecutions

O He is only involved in criminal cases.
O His duty is to institute and undertake proceedings against any person in respect of a criminal
offence.
O He gives advice to the police as to whether charges can be laid against persons.
6

O n cases where the media carries prejudicial reports on criminal proceedings currently before the
court, the DPP must act to give directions to the media to desist from so doing or to bring charges
for content of court against media personnel.
O The DPP can decide at any stage before judgment is given to discontinue criminal proceedings
against anybody.

!ubIic Defender

O His role is set out in the Public Defenses Act and his duty is to investigate any action taken
where he is of the view that any person or body of persons has suffered injustice or the
infringement of rights by any organ of the state.
O However he cannot investigate any matter dealing with extradition of persons, conduct of any
civil or criminal trial in a court, he cannot investigate any action of the DPP, and he cannot
investigate any matter regarding the appointment, discipline or termination of civil servants.
O Although he is an attorney, he cannot represent any person in court but he can recommend
and pay for legal aid for that person.
O He may refuse to investigate if he feels that the complaint is trivial or if the complainant has
waited to long to report the matter.

LECTURE 5 - THE !ROTECTION OF FUNDAMENTAL RIGHTS

O The fundamental rights are:
4 the right to life,
4 liberty,
4 personal safety,
4 enjoyment of property,
4 protection of law,
4 freedom of conscience,
4 expression,
4 peaceful assembly and association,
4 respect for private and family life.

O Limits are placed on the enjoyment of these rights so as to protect the rights of others and in the
interest of public order, public safety, public morality and good government. Any individual who
claims that any of these rights has been breached has the right to seek regress from the courts.

THE RIGHT TO LIFE:

t will not be a breach of a person's right to life if death occurs in any of the following circumstances:
4 The carrying out of the sentence of a competent court after conviction for a crime.
4 n defense of person or property (self-defense)
4 Death as a result of resisting lawful arrest or escaping from lawful custody.
4 Death occurring in situations where proper personnel attempt to quell a riot or mutiny
4 Death as a result of a lawful act of war.

O The constitution seeks to protect the right to life by putting in place certain safeguards, such as the
right of an accused person to have legal representation in criminal cases.
O The constitution provides that persons should be treated humanely in prisons and penal
institutions. The right to life however is breached in many instances by organs of the state. The
number of extrajudicial killings speaks that fact.

DEATH !ENALTY:

O Even thought constitution speaks to a right to life it also makes provision for the death penalty.
The constitution does this by providing that no person may be killed on purpose except in the
carrying out of a sentence of the court after conviction for a crime. (Section 14 of the Jamaican
Constitution.).
O The main statute/ legislation which deals with the death penalty is the 'Offences Against the
Person Act.' Until 2004, the act provided that the death penalty was the automatic or mandatory
sentence for capital murder and life imprisonment the sentence for non-capital murder.

The act provides that capital murder occurs in any one of the following circumstances:
4 where a police officer, justice of the peace, judge, or any judicial officer is killed in the line
of duty
4 where a juror is killed
4 where a party to a case is killed
4 where a witness to a case is killed,
8

4 where murder occurs in furtherance of burglary, house breaking, arson, sexual offence,
terrorism,
4 where murder is committed for hire,
4 where murder is part of a joint enterprise,
4 where a person commits 2 or more acts of non-capital murder in terms of time or proximity.

There are certain categories of persons exempt from the death penalty even if they commit capital
murder:
O a pregnant woman
O an insane person (where they cannot plead that they are not competent enough for the
preceding).
O A juvenile.
O Women in general do not get the death penalty - this is a matter of general practice rather than
law.

ARGUMENTS IN SU!!ORT OF THE DEATH !ENALTY:

O Capital punishment will serve as a deterrent to crime.
O f the criminal is dead, he is no longer a threat to society.
O t brings closure to the case for the family of the victim.
O Offender shall get the same fate.
O f persons are given the death penalty, then it removes the strain on the country's resources.
O Serves as a way for society to express its indignation at the brutal acts committed by the
offender.
O The death penalty has popular support.

ARGUMENTS AGAINST THE DEATH !ENALTY;

O There is no evidence that it serves as a deterrent to crime
O The death penalty is barbaric and has no place in civilized society.
O Most if not all the first world countries have abolished the death penalty.
O The death penalty seems to discriminate against the poor.
O Goes against human rights principles.
O Goes against principles of love and mercy and rehabilitation and forgiveness.
O Death penalty makes the state as much a killer as the killer himself.
O nnocent persons have died unjustly.

The death penalty has not been enforced in Jamaica since 1988. This is because of the decisions
handed down by the Privy Council in 4 landmark cases and these cases are:

1. Pratt and Morgan vs. the Attorney General
2. Neville Lewis vs. the Attorney General.
3. Lambert Watson vs. the Attorney General
4. Smith vs. the Queen

!ratt and Morgan
n the Pratt and Morgan case, the Privy Council ruled that 'in any execution taking place more than 5
years after sentencing, there would be a strong presumption that the delay amounts to inhuman and
degrading punishment or inhumane treatment contrary to the Constitution, in which case, the
sentence of death must be commuted to life imprisonment'.
9

NeviIIe Lewis
n the Neville Lewis case, the Privy Council ruled that the accused/ prisoner must be given the
opportunity to exhaust all channels of appeal open to him both locally and outside of the jurisdiction
before the death sentence can be carried out.

Lambert Watson
n the case of Lambert Watson, it served to further deter the enforcement of the death penalty. The
Privy Council ruled that the mandatory death penalty for capital murder was unconstitutional because
it deprives the acute of the right to present his case, showing cause or reason why this sentence
should not be pronounced on him. t also removes the discretion given to judges to determine what
the sentence should be in any particular case. The court also said that in every case of capital
murder, there should be two hearings before the trial court (Supreme Court).
The first hearing must be to determine guilt or culpability. The second hearing, which is called a
mitigation hearing, is to determine sentence. n this hearing, the accused must be allowed if he so
chooses to call character witnesses and also to have the court reviews his antecedents (criminal
record). At the end of this hearing, the judge must decide whether the sentence should be the death
sentence or life imprisonment. As a result of this case, the offences against the persons act was
amended to remove the mandatory death sentence for cases or capital murder and replace it with
the sentence of death or life imprisonment.


Smith
n this case the accused broke into a dwelling house for the sole purpose of killing his former girlfriend
and was charged and convicted of capital murder on the basis of house-breaking and burglary. The
Privy Council found however that it was not murder in furtherance of house-breaking or burglary
because there was no intention on the part of the accused to commit any criminal act apart from the
one which he committed and for which he was convicted. The court said that the statue contemplated
that murder in furtherance of house-breaking or burglary is only committed where the accused had
the intention to steal or commit some other felony in the dwelling house and death occurs during that
act or for the purpose of escaping after the act is committed.


ABORTION

O n the context of the right to life
O Offences against the person act Sections 72 & 73 speak to the issue of abortion
O Section 72 - if a woman who is pregnant uses any poison, noxious substance, any instrument or
any other means for the purpose of procuring her own miscarriage, she is guilty of a felony for
which the sentence is life-imprisonment, with or without hard labour.
O Section 73 - any person who supplies a woman with any poison, noxious substance, any
instrument or any other means, knowing that she intends to use them to procure her own
miscarriage is guilty of a misdemeanor to which the penalty is up to 3 years imprisonment, with or
without hard labour.

LECTURE 6 - HUMAN RIGHTS LAW

O This refers to post 1945 law.
O Prior to 1945 this was an unheard of concept.
O Arose as a result of the 2
nd
world war and the holocaust (where approx 6 million Jews and other
persons were executed and placed in concentration camps by Hitler's third Reich) consequently
after the allied powers made a commitment that never again would they allow governments to
perpetrate such acts of gross inhumanity against their citizens.
O Thus Article 1 of UN Charter states that the purpose of the UN is to achieve international
cooperation in the solving of international problems of social, cultural, economic and humanitarian.
O On Dec 10
th
, 1948 the UN general assembly adopted the Universal Declaration of Human Rights
(UDHR). The purpose of the declaration is to define the concept of human rights which the UN
wants to protect. The rights in the UDHR are stated to be basic and inalienable they include:
4 Article 3 - the right to life, liberty and security of person.
4 Article 5 - right to not be subjected to torture, cruel or inhuman treatment
4 Article 23 - everyone has the right to work in just and favourable conditions
4 Article 25 & 26 - the right of adequate standard of living and right to education.
4 The right to marry
4 The...

O This declaration did not impose a binding obligation on states, consequently the UN promoted
other instruments which are intended and in fact impose binding obligations on states.

The InternationaI Covenant on CiviI and !oIiticaI rights (ICCR):
Signed by Jamaica in 1962 and currently has approximately 152 state parties. This covenant protects
1
st
generation rights, these are rights which focus on the restraint by the state authorities and lend
themselves to immediate implementation. Under article 2 of the CCR, states are obliged not to
violate the rights protected in the covenant and to protect individuals from violations from other
individuals or private agents. A state would be in violation of the covenant if it permits or fails to take
appropriate measures, or to exercise due diligence to prevent, punish, investigate harm caused by
private persons or other entities. Other rights include:
O the right not to be subjected to slavery (Article 8),
O the right to liberty and to security of person (Article 9),
O fairness before the courts,
O the right to humane conditions of detention;
O the right to privacy, protection of thought and expression.

n April 2001 Janice Allen, a 13 yr old girl was gunned down in the streets of west Kingston. n 2001 a
policeman was charged for the offence and a preliminary trial was conducted, which lasted for less
than an hour. The reasons given were, that:
1. The firearm register was destroyed when the d.town police station was burned down and
thus they couldn't D which policeman's gun was responsible.
2. A policeman had confessed to the shooting, but on the date of the trial the investigating
policeman who had taken down the confession was said to be overseas

O Other problems in Jamaica include extra judicial killings by police officers and the high crime rate.
n 2001 there were 1500 murders, while in 2005 there were 1600. Jamaica also has a problem
with vigilante killings and reprisal killings for survival and revenge.

O n August 1999 some poor bastard was kicked to death by the members of the police force and
defence force. At the time of his death there were apparently 13 members of both forces present
and they apparently couldn't D the actual person who kicked him so no one was arrested for the
incident.
O Under Article 6 of the CCR, states may impose the death penalty provided that certain
safeguards have been complied with. These safeguards include trial before a fair and competent
court and legal representation. Under the CCR, certain provisions have been put in place to
provide ...
O Under Article 28 a human rights committee is established, and member states undertake to submit
periodic reports to the committee. The purpose of the reports is to allow the committee to assess
the extent to which states are upholding human rights.
O These reports are to be submitted every 5 years. Jamaica's report was due august 1
st
1986 and it
was actually submitted in 1997.
O The committee however cannot punish states for failing to publish timely reports; and even if
states submits reports and the committee finds that that state is breaching human rights, the
committee can only make non binding recommendations.
O Under the CCR there is a first optional protocol which allows individuals to go before the
committee and make complaints about human rights abuses.
O Jamaica withdrew form the 1
st
protocol in January 1998. There is also a 2
nd
optional protocol
aimed at abolishing the death penalty, Jamaica is not a party to that protocol.

InternationaI Covenant on Economic, SociaI and CuIturaI Rights:
O This covenant protects 2
nd
generation rights, these are rights which came to the fore..
O Article 2 provides that states must take measures to aggressively implement the right under
the covenant; this is because the rights under the CESCR are resource dependent.
O Article 6, including the right to technical and vocational training
O Article 7, provides for fair wages without distinctions
O Article 8, the right to form trade unions
O The right to adequate standard of living, food, housing clothing, compulsory primary education
and increasing access to secondary and tertiary education

O Adult literacy rates are at approximately 86% and youth literacy rates are at approximately
93%
O There has been increased access to tertiary and secondary education but critics point to the
quality of the education. n 1999, Jamaica had approx. 75 comprehensive high schools. These
schools had a capacity of 42, 000 kids but are currently holding 86, 000 students.

The right to work:
n 1999 unemployment was about 16.5 %. n reference to wages Jamaica has:
a. an equal pay for men and women act
b. along with a minimum act,
c. employers liability act- imposes duty on employers to ensure places of work are safe.

Convention on the rights of the chiId:
O There are approximately 191 states parties to this convention including most Caribbean states. A
child is defined as a person less than 18 yrs of age.
O Article 6 provides for the inherent right to life of the child and imposes a duty on the states to
ensure the survival and development of the child. The states also have a duty to facilitate parental
responsibility for the upbringing of the child.
2

O The child must also be protected from all forms of violence, should receive compulsory primary
education and should not be subjected to illicit transfer (shipping children across borders).
O n 1995, Jamaica established a child support unit and passed the Child Care and Protection Act
and both these mechanisms work together to monitor how children are treated in terms of safety
e.g. in children's homes. There is also the national strategic plan for persons living with HV/ADS.

American Convention on Human Rights:
O The pact of San Jose, this instrument is promoted by the org. of American states and is intended
to promote and protect human rights in the Americas.
O As of Jan 2006 there are 23 parties to the convention. Under the convention two bodies have
been established:
4 nter-American Court of Human Rights
4 nter-American Commission on Human Rights

O The decisions of the courts are binding on all state parties, while the commission makes non-
binding recommendations.
O Here in the Caribbean the Commission is the more active of the two bodies.

Functions of the commission:
O t consists of 7 members appointed by the general assembly of the OAS.
O t examines complaints or petitions regarding specific cases of human rights violations.
O t also stimulates public consciousness within the members of the convention and also carries out
onsite visits.
O The report of which is submitted to the OAS, this brings regional attention to human rights
violation occurring in particular countries.
O A number of cases have gone before the Commission for example:
4 Michael Gaye case the Commission recommended that the Jamaican.
4 Michael Edwards (Bahamas) mandatory death penalty in the Bahamas.

O Under the Convention:
4 Article 4 the right to life (life begins at moment of conception)
4 Article 8 the right to fair trial
4 Article 7 the right to personal liberty
4 Article 13 the right of freedom of thought and expression
4 Article 15 the right to assembly
4 Article 17 the right to found a family

Convention on the eIimination on aII forms of discrimination against women
O Equal pay
O Protection from physical and mental violence
O Right not to be subject to cultural/customary practices which serve to degrade them or confer
notions of inferiority or superiority of either sex

LECTURE 7 - FREEDOM OF MOVEMENT RESTRICTIONS & CARIBBEAN SOCIETY AND

ECONOMY

FREEDOM OF MOVEMENT RESTRICTIONS
O t is restricted if the state imposes a curfew
O f a court imposes a restraining order on a person
O Where the law imposes trespass on to private property
O Where persons are given custodial sentences (jailed)
O Where person are quarantined due to health reasons
O Where insane persons are detained for treatment, and to protect others
O Where jurors are sequential.
O Where persons are placed under house arrest
O Where persons are held for extradition purposes
O Where persons are placed in witness protection

Other restrictions for freedom of movement
O When persons are kidnapped
O Persons live in volatile areas/ cannot cross imaginary borders or boundaries

RIGHT TO !RIVATE !RO!ERTY
O By virtue of the law of eminent domain, private property can be compulsorily obtained for
development purposes or public use (e.g. building of schools or roads) but the state must pay
reasonable compensation at the market value.
O Your property can be entered and searched by the enforcement arms of the state with or
without warrants.
O Private property may also be seized (and sold) by order of the court.

FREEDOM OF RELIGION
This is restricted by the state if it requires the adherents to engage in acts which are against the law
of the land or which infringe the rights of others.

FREEDOM OF EX!RESSION
Restricted in that the law guards against such things as slander, liable, expressions that cause public
mischief

FREEDOM OF ASSOCIATION & ASSEMBLY
O The law restricts gatherings of over 12 persons in a public place for the purpose of expressing
themselves on public issues that have arisen, unless such gatherings are reported by the police.
O Persons have a right to protest peacefully, as long as this does not infringe on the right of others.
(also there is no right to litter)



CARIBBEAN SOCIETY AND ECONOMY

!ANTATION SOCIETY AND ITS EFFECTS ON CONTEM!ORARY CARIBBEAN IFE
4

O According to Sidney Mintz, plantation society was a political economic invention combining non-
European slaves and European capital, technology and managerial skill with control of free/cheap
sub-tropical lands for the mass mono-crop production of agricultural commodities for European
markets.

DEMOGRA!HIC CHARACTERISTICS
a. Social organisation and structure
b. race, cast and class
c. economic division
d. political organisation and distribution of power.

O Plantation brought together people of different races and cultural backgrounds to carry out the
task of production and therefore cultural plurality was an important feature of plantation life.
O Plantations brought together white Europeans, black persons as slaves and east ndians and
indentured servers.
O Today these same groups make up the population of Caribbean societies in basically the same
proportion as during the plantation era.
O White people are a small percentage of the Caribbean population and the majority are of African
descent.
O n some countries, particularly Guyana and Trinidad, people of East ndian decent still make up a
substantial portion of the population.
O n most Caribbean societies there are a sizeable percentage of mixed persons who represent the
outcome of unions between white plantation owners and black women. This legacy from the
plantation era still influences Caribbean societies because across the region, these different
groups exist along side each other, each maintaining there separate distinct culture.


SOCIAL ORGANISATION and STRUCTURE

O The social structure of plantation took shape from the social organisation that was necessary for
the purpose of production. The society was rigidly stratified on the basis of race and colour and
there is no room for social mobility.
O The hierarchy was such that white occupied the top, blacks were firmly placed at the bottom and
in the middle a group of racial and cultural half pass (mulattoes)
O Although slavery was formerly abolished, Caribbean societies still maintain that social structure to
some extent. This is so because in many Caribbean countries whites or foreigners still
monopolised means of production and business enterprises and therefore have the money and
power to dominate
O Educational opportunities have caused some blacks to elevate themselves to a higher spot in the
hierarchy, but in many instances they still remain subject to those with real power.


RACE, CAST AND CLASS

O The predominant social characteristic of plantation society was a extent of a class-cast system
based on differences in the racial origin of plantation workers on one hand and plantation owners
on the other.
O White Europeans saw race as a convenient means of controlling the labour supply. t was also
seen as a moral justification to slavery.
5

O Racial characteristics determine the cast-lines that separated masters from slaves. These cast-
lines still exist in Caribbean societies separating the super-ordinate whites and commercial
classes from the subordinate blacks.
O Even among the black population, class structure has developed which places black persons with
the most physical and cultural likeness to the whites at the top of that internal hierarchy and those
with the least likeness at the bottom.

!OLITICAL ORGANISATION and DISTRIBUTION OF !OWER

O The nature of political organisation and political power in Caribbean societies today is a direct
legacy of the plantation era.
O n that era political organisation and state power were based upon principles of authority and
control.
O Power was centralised into the hands of the plantation owner who made all decisions relating to
production in the territories as well as other aspects of life.
O n Caribbean societies a strong central government is still characteristic of those places where
plantations existed.


QUESTON ON PLANTATON SOCETY and CARBBEAN SOCETY..Has it retained the same
structures??....based on topics discussed above.

LECTURE 8 - STRUCTURE OF GOVERNMENT, SE!ARATION OF !OWERS AND

INDE!ENDENCE OF THE JUDICIARY

STRUCTURE OF GOVERNMENT:
O The structure of Government in the Caribbean has been loosely referred to as the Westminster
Export Model.
O While acknowledging its roots in the hierarchical system of Government practice at the palace of
Westminster, which is the seat of Government of the United Kingdom.
O The model does recognise some significant departures from the original but first the similarities:
O The Westminster Export Model recognizes three primary governmental branches: the executive,
the IegisIative, and the judiciary.

THE EXECUTIVE
O The executive is comprised of members drawn from the legislature and is headed by a ceremonial
head of state, e.g. queen represented by the governor general.
O The head of state is distinct from the head of government however the head of state does reserve
some power.
O The head of government is the person who controls the majority support of the elected members
in the lower house of the legislature.
O The head of state on the other hand is either hereditary or appointed on the advice of the head of
government.
O The other members of the executive are the cabinet ministers who are appointed by the head of
state on the advice of the head of government.
O The principle of cabinet government is essential to Westminster Export Model as cabinet drives
the legislative agenda by proposing and pursuing the policies that would be implemented through
legislation.
O Cabinet governs on the principles of collected responsibility and minister must support the
government policy regardless of any reservations.

THE LEGISLATIURE
O The legislature can either be unicameral (single chamber/ one house) or bi cameral. Members can
be wholly elected or partially elected or partially appointed. The most common situation is for one
house to be wholly elected and the upper house is appointed.
O The lower house is able to control in theory the functions of government by withholding budgetary
allocations, passing a no confidence vote or defeating a confidence vote. However these powers
are rarely, if ever employed because of the distribution of power in the legislature and the fact that
the head of government controls the legislature; by virtue of being the leader of the governing
party.
O This has created a situation referred to as prime ministerial dictatorship because of the
tremendous power wielded by the head of government. E.g.
4 he selects the representative of the head of state,
4 he selects the cabinet which in turn sets the legislative agenda,
4 he determines the life of the legislature and it is upon his advice that elections are called;
and
4 he selects the head of the judiciary as well as other key individuals responsible for the
administration of government.
7

O A significant element of the west minister model is the fact that the life of the legislature can be
terminated at any time.

THE JUDICIARY
O The judicial branch under the west minister model is largely independent of the legislature and the
executive. However there are serious exceptions.
O The road of conventions cannot be overemphasized in this type of government despite the fact
that most of the conventions has been codified or written down in the export model. Although the
head of state calls elections on the advice of the head of Government, it is highly unlikely that the
head of state would ever ignore this advice.
O Most Westminster Export Model governments have one major difference from the parent model in
that they operate under written constitutions which create a situation of constitutional supremacy.
O Under the pure Westminster Export Model there is parliamentary sovereignty. The immediate
implication of this dichotomy is for the role of the judiciary.
O Under the export model the court is empowered to review all acts of the legislature to ensure that
they are in conformity with constitutional provisions. The court can therefore declare acts of
parliament to be null, void and of no effect.
O Conversely, under a true Westminster Export Model type of Government, the legislature is
supreme and the court is limited to the extent to which it can review legislative acts.

O Some have argued that the greater advantage of the Westminster Export Model style of
Government is a more efficient mode of Government which it engenders as the head of the
majority party as head of Government can enforce stern discipline on members of the legislature
through the threat of early elections and through his control of the cabinet. Therefore very little
time is wasted in debating or creating policy.
O However the most glaring challenge to this approach is the possibility of corruption due to the
concentration of power in and around an individual and this corruption can undermine the very
efficiency for which the Westminster Model is known.
O n order to counteract this deficiency posed by the threat of corruption, an attempt is made in all
commonwealth Caribbean constitutions to recognise the doctrine of separation of powers.
O The doctrine is grounded in the adage: power corrupts and absolute power corrupts absolutely.

SE!ARATION OF !OWERS

O The doctrine of separation of powers if of some vintage, however it was only clearly articulated in
the American convention. Nevertheless the doctrine holds at least five possible meanings as
enunciated by Professor Albert Fiadjoe, Professor of Public Law of UW and the author of -
Commonwealth Caribbean Public Law.
O The first possible definition is the differentiation of the concepts of legislative executive and
judicial.
O The next possible definition is the legal incompatibility of office holding as between members of
one branch of government and those of another with or without the physical separation of
persons.
O The third definition is the isolation immunity or independence of one branch of government from
the actions or interference of another.
O The fourth definition is the checking or balancing of one branch of government by the action of
another by the co-ordinate status and lack of accountability of one branch to another.
O Caribbean constitutions do not generally specify the doctrine; however the Privy Council case
from Jamaica of Hinds vs. the queen has settled that the principle of separation of powers is
evident in the commonwealth Caribbean constitutions.
8

O The facts of the case are that in response to an increase in gun crimes, the Jamaican government
sought to introduce a new tribunal called the Gun-Court to hear these cases.
O However this tribunal did not enjoy some of the constitutional safe-guards and protection granted
to the Supreme Court.
O Hinds argued that his appearance before this tribunal was therefore unconstitutional.
O The Privy Council ruled that since gun crimes amounted to serious crimes and the constitution
gave jurisdiction only to the Supreme Court to adjudicate on such serious crimes.
O Therefore the act of the legislation in establishing a new tribunal conflicted with the doctrine of
separation of powers.

O n the Caribbean the doctrine means little more than the independence of the judiciary. However
in the United States, the doctrine implies the following: the executive branch is responsible for
carrying out or executing the decisions of parliament or legislature through ministers or other
government agencies or agents. The legislative branch is responsible for determining the legal
framework for the state.
O The judiciary is responsible for the interpretation of the acts of the legislature and of the executive.
O Under the American constitution, the executive is limited and deliberately so. For example, the
president as head of the executive cannot enter the legislature so as to influence the legislative
agenda. Likewise the legislature is subject to the veto power of the president.
O The judiciary represented by the Supreme Court can declare an act of the legislature
unconstitutional but the legislature can change the constitution. All of these checks and balances
are designed to force the 3 arms of government to be accountable to the others and no one
branch can usurp the others and therefore become dominant.
O Within the Caribbean government, this neat separation is non-existent. The executive and the
legislature share members and the executive for all intents and purposes dictates to the
legislature which merely rubber stamps the wishes of the executive.

INDE!ENDENCE OF JUDICIARY
O As a check of the tremendous power of the executive, the Westminster Export Model created
constitutional independence of the judiciary.
O Under the indigenous Westminster Model, the upper house of the United Kingdom parliament also
functions as the final court.
O However in the export model, judges are prohibited from holding any other government office.
ndependence of the judiciary is further guaranteed through the security of tenure of judges with
no dismissal without good cause and judicial salaries should not be reduced.
O However, even this independence can be affected in the following ways:
1. t is the prime minister or head of government who selects the chief justice and it is this
chief justice who chairs the commission responsible for the selection of the other judges.
2. As the judge's salary is drawn from the consolidated fund there is a possibility for the
government to influence judges by not voting or approving salary increases to keep pace
with inflation. t is the executive who controls the consolidated fund.
3. The chief justice is required in the absence of the governor general or head of state, to act
as head of state / head of the executive. This could hypothetically result in a situation
where the chief justice acting as head of state is required to sign or give his assent to a bill
making it law and upon reverting to the usual post as chief justice, he may be required to
review the constitutionality of the said bill or act.

ADVANTAGES OF THE DOCTRINE OF SE!ARATION OF !OWER:

9

O The primary advantage is the limit placed on the absolute exercise of power. t also engenders
greater accountability in government.

THE DISADVANTAGES OF THE DOCTRINE ARE:
O t prevents the possibility of grid-lock in government because of the need for the three arms to
function in tandem.
O n the United States there were at least two circumstances of grid-lock during the administration of
Bill Clinton when the executive was controlled by the democrats and the legislature was controlled
by the republicans. When President Clinton vetoed bills from the republican legislature. They in
turn refused to pass money bills to pay federal employees, this lead to government shut down.
O Sir Allen Lewis in his article "The separation of powers: its relevance to parliamentary government
in the Caribbean1978 West ndian law journal, argues that such a gridlock would be devastating
for the small vulnerable economies of the Caribbean; as we are entirely dependent on central
funding for the greatest part of our economic activity.
O A second disadvantage is the time required to achieve consensus. The possibility of lengthy
debates on key policy issues which are of vital national importance is seen as untenable in our
economies. This is because we need to catch up with the rest of the world in very short order;
hence we do not have the luxury of time. Sir Allen Lewis therefore argues that the concentration of
power in the hands of the executive is crucial for microstates and only after sufficient democratic,
economic and social evolution should we consider adopting full separation of powers.

Article:
Judges at the border of law and politics; aspects of the Caribbean constitutional order. Professor
Steven vasialli./Bastiali. Social and economic studies 51:1 2002

LECTURE 9 - GENDER DIS!ARITY IN EDUCATION

To make themselves loved and honoured by them, to educate them, to console them, to counsel
them, to make life sweet and agreeable to them these are the duties of women at all times and
should be taught them from infancy. Another writer "since the use of the brain for intellectual
pursuits required excessive blood, women could not afford to engage in strenuous pursuits for fear
that blood would be drawn away from the nervous system and the reproductive organs.

As recent as 1994, many UK writers theorised that men have longer, larger and better brains than
women and women due to their lack of testosterone are incapable of competing with men whether
intellectually or in any area of work. Many universities in the UK did not allow women to attend
lectures, nor to read for a degree. Even as late as the 20
th
century education ... However in recent
years, women have shown themselves as equal to or even better than men in the context of
academic matters.

When the UW started in 1950 1/3 of the student population then was female, by 1997 women made
up 64% of total university population, in 2002 enrolment stats show that for
Cave Hill - males 33.8%: females 66.2.
Mona - males 32.1: females 69.9;
St. Augustine - males 41.4 %: females 58.6 % and for the
Outreach centres males 22.6: females 73.8
On all of these campuses males dominated in the areas of science for a number of years but at
present the number of women enrolled in and doing as well in science is equal.

Math m = 47% females =54.7 %
Science m = 49.7: f = 56.6
Social science m = 49.5 f =56.7
Language arts m =48.7 f = 58.3
Communication tasks m=53.9 f =67.8

At CXC level:
Physics the number of students attaining a grade 1
n 1999 - There were 54 males and 36 females
n 2000 44 boys and 46 girls
n 2001 57 males, 74 females

For nformation technology
n 1999: 114 boys: 202 females
n 2000: 33 boys: 50 girls
n 2001: 258 boys: 402 girls

- To compensate for the past to overcome the marginalisation of the pass and show themselves
equal to the men.
- Another argument says that women develop mentally and physically faster than males.
2

- Socialisation of females as opposed to men, girls inside the house- housework and studying
while boys outside.
- School system is biased toward girls even from an early age, more attention given to females.
- There is a lack of male role models in the education system
- Men grow up to be bread winners working as soon as they leave school or work and allow
the sister to go to school.
- Men are inclined to indulge in sports and hands on activities and the education system don't
pay much attention to sports.
- Men find it difficult to balance, education personal life and work.
- Courses offered are not male friendly.

The argument has been made to find a way to bring the men up to speed. As a university the
university needs to implement an affirmative action program to get more men involved. Affirmative
Action means "actions to eliminate discrimination and to create more adequate pools of talent as it
relates to groups that are marginalised. Some persons have said that we need an AA program, some
suggestions include:
- Lower the matriculation requirements for men to enter the university
- Change the courses offered
- Designate a set number of places to men
- Lower the fees for men
- Offer incentives to the men by giving credits to sports and other extra curricular activities
- Market the university in the high school system, especially those schools that have males at
the 6
th
form level

The benefits of AA
- Encourages competition
- Broadens contacts at the intellectual level
- Promotes diversity and reduces the alienation of the men

Disadvantages
- AA is said to send a wrong message, and lowers the prestige of the university
- Unfair to women who meet the requirements
- The matriculation is already low
- ncreases insecurity and hostility ( as women feel that they have to do more than men)






THE GANJA DEBATE


Basic question is should ganja be legalised or not?
First state that ganja is illegal in Jamaica.

What do we mean by decriminalised?
The removal of the sanctions currently imposed on it.

What recommendations have been made by the Ganja Commission?
22

Look at the arguments put forward for decriminalisation and against decriminalisation.


For Decriminalisation:

1. Making the use or possession of it a criminal offence is just an extension of colonialism.
2. Reflects social biases, because other persons are allowed to use whatever substances or
measures for relaxation, i.e. using alcohol in the upper society.
3. t is used for religious purposes and since people should be free to practice their religion then
they should be free to smoke their ganja.
4. Most people want it, majority support
5. Will boost tourism arrivals for the country.
6. Other countries (Canada and Holland) have decriminalised it for certain purposes and they
don't have any problems.
7. Will improve the relationship between citizens and the state then the police no longer have a
basis for random searches.
8. Medicinal purposes (glaucoma and pain relief in cancer?)


Against Decriminalisation:

1. The adverse effect on the individual of marijuana.
2. The de-motivation syndrome users may no longer want to work etc. just smoke.
3. t operates as a gateway drug to more dangerous, more addictive drugs heroin, cocaine.
4. The international repercussions - legalisation of ganja will be in breech of international treaties
and will generate an adverse response from the US.
5. t does not have majority support in the general population but rather in certain sectors and
factions within the population.

Outcome:
Having looked at the arguments for and against then you are going to take your position on which
argument you feel is stronger.