SOURCES OF LAW

Breakdown of Content to be covered based on Learning Outcomes

1. Identify and describe the main sources of law.

 The Constitution (emphasise that the Constitution is supreme law and indicate
the legal basis for its status as such).

 Legislation

 Common Law & Equity

 Judicial Precedent/ Case Law (including advantages & disadvantages and how a
precedent may be avoided, distinction between ratio decidendi and obiter dicta
as well as between binding precedents and persuasive precedents)

2. Explain the English Legal System as inherited under the Common Law Principle.
 Adversarial system (claimant/plaintiff vs defendant)

 Role of judges in light of the doctrine of judicial precedent

3. Illustrate and discuss the hierarchy and the role of the Courts within Common Law
legal system
 Hierarchy of courts, highlighting that the CCJ and JCPC stand atop the hierarchy
and have different jurisdiction and showing how the hierarchy relates to the
doctrine of judicial precedent.

 Separation of powers, role of the executive, legislature and judiciary (including

the fact that Parliament makes law, judges interpret law

Questions:
1.Where does the law come from?
2. What is its origin or basis?
The law and legal systems in the Commonwealth Caribbean originated from the UK and its
common law legal heritage.
INTRODUC
TION TO
LAW AND
LEGAL
SYSTEMS
cont’d
•
The Common
Law Legal
Tradition/
System:
–
originated in
England.
–
was imposed
upon the
Commonwealth
Caribbean
through the
process of
colonization.
–
describes the
substantive and
legal rules,
techniques
and institutions
which evolved
from the early
courts of
law in England
after the
Norman
Conquest and
the
subsequent
ascendance of
William, the
Conqueror, to
the English
throne in 1066.
–
Rules were
promulgate on
an ad hoc basis
by the
common law
courts as matters
came before them
for
determination
(soft/judge-made
law)
INTRODUC
TION TO
LAW AND
LEGAL
SYSTEMS
cont’d
•
The Common
Law Legal
Tradition/
System:
–
originated in
England.
–
was imposed
upon the
Commonwealth
Caribbean
through the
process of
colonization.
–
describes the
substantive and
legal rules,
techniques
and institutions
which evolved
from the early
courts of
law in England
after the
Norman
Conquest and
the
subsequent
ascendance of
William, the
Conqueror, to
the English
throne in 1066.
–
Rules were
promulgate on
an ad hoc basis
by the
common law
courts as matters
came before them
for
determination
(soft/judge-made
law)
 Law is closely influenced by social activities. It is therefore important to have an
appreciation of the proper social context within which our laws were derived before one
attempts the study of our law and legal systems.
 According to Marie Belle Antoine, the law and legal systems of the Commonwealth
Caribbean is borne out of our colonial/ plantation experience.
 Historically, says Antoine, laws were used as a mechanism for social control and public
order in plantation societies.
 Further, Antoine notes that the brutality of treatment meted out to the Black slaves was
sanctioned by the law which existed at the time.
 The Common Law Legal Tradition/ System:
 originated in England.
 was imposed upon the Commonwealth Caribbean through the process of
colonization.
 describes the substantive and legal rules, techniques and institutions which
evolved from the early courts of law in England after the Norman Conquest and
the subsequent ascendance of William, the Conqueror, to the English throne in
1066. ( it was a military conquest of England effected by victory at the battle of
hastings and resulted ultimately in political, administrative,and social changes.)
  Rules were promulgate on an ad hoc basis by the common law courts as matters
came before them for determination (soft/judge-made law)

3. There are three main sources of law:

a. Legal Sources – these shape and inform the particular legal system.
b. Literary Sources – describes the location of the law i.e. in books, texts,
legal treatise, law reports or legislation.
c. Historical Sources – refer to the causative factors behind a rule of law, its
historical origin and development.

We will be examine each in detail, as they shape and inform the particular legal system to a
greater degree than any other source of law.

‘literary sources of law’ merely describes the location of the law, where the law can be found,
that is for example, in books, legal treaties, law reports, or legislation. It is not concerned with
content, but with method and form. These literary sources of law merely tell us what the law is.
They do not confer legitimacy on the rules of conduct or social arrangements.

The historical source of law refers to the causative factors behind a rule of law, its historical
origin and development. For example the historical sources of law is to be found in the colonial
process by which English statute, common law and equity were transplanted to the region
under the doctrine of the reception of law. Similarly, the historical sources of law of England
would be English Custom.

Legal sources are intimately linked with the historical source through the historical experience
of colonization and plantation societies.
When we speak of legal sources we are describing the basis of the law’s validity, that which give
the law its legal authority. The legal sources of law in the commonwealth Caribbean are ;
(a) the constitution
The constitution is defined as the founding document confirming the independent status of the
commonwealth Caribbean States. It represents a symbolic break with colonialism and former
British colonial masters.

Secondly, the constitution it is adherence to the theory of constitutional supremacy. This

replaces the doctrine of parliamentary sovereignty replacing it with constitutional supremacy.
This is a body of law containing the rules which determine the structure of the state and it
principal organs. It establishes the fundamental principle according to which the state is
governed. It is the authority base for the rule of law

Unlike England which operates under parliamentary sovereignty, the Commonwealth Caribbean
adheres to the principles of constitutional supremacy.
The constitution is the supreme law and all other laws that contravene the provisions of the
constitution are, to the extent of their inconsistency, null and void

Functions of the Constitutions in the Commonwealth Caribbean include:

(a) Definition of the territory of the state
(b) Creation and establishment of the state institutions and the distribution of the function
of the state
(c) Granting of authority to make laws
(d) The furnishing of legitimacy of the state through the existence of an independent body
of law which regulate the State.

(b) legislation
According the Honourable MR. Justice Crabbe “ legislation is an instrument of change and
innovation in any country”. (The Hon Mr Justice VRAC Crabbe, Former Professor of Law, Faculty of
Law, and Director of the Legislative Drafting Programme, UWI, ‘Customs and Statute law’ [1991] Stat LR
90, p 91.)
Functions of Legislation:
  revision of outdated/ stale law
 clarifies, simplifies and consolidates laws developed in a piecemeal
manner
 Codifies the common law
 Incorporates and enforces treatise obligations
 Public policy
 A means of effecting social change an demonstrate sensitivity to
concerns of pressure groups.

Types of Legislation:
Orders in Council from the prerogative- made under the prerogative power with the advice of
the Privy Council. They mainly applies to the armed forces, states of emergency and the civil
service
Acts of Parliament – created by Parliament as part of it inherent law-making function. There
are private and public Acts of Parliament.
Delegated Legislation- is usually concerned with detailed changes to the law made under
powers from an existing Act of Parliament. The main types of delegated legislation are
Regulations/ Orders and Bye Laws. For reasons of speed, efficiency, technicality, special
knowledge, flexibility and to avoid bulk, parliament may delegate a body to create legislation.

Comparing legislation with common law, statutes generally have the power to change the
established common law, but the common law cannot overrule or change statues. A statute can
only be overruled or amended by another, later statute. Judges must normally apply statutes,
even if they are contrary to established common law. The task of the judge is to interpret and
apply the statute.

(c) the common law

The common law is also known as case law. It describes the legal principles derived from
examining the judgments of cases where there are no applicable statutes. The common law or
case law is both a legal and an historical source. It has a historical source because its existence
is linked to the experience of Colonization in the region and the consequence of the reception
transplantation of law derived from England.
The common law is really the outgrowth of historical custom, consolidated by the
Norman Conquest when these local customs were unified into one coherent system of law
‘common to all men’, hence the term ‘common law.’

The unique characteristic of the common law as a legal source is its ad hoc nature. This
describes the way it grew up and continues to develop on a case-by-case basis. Each case or
judgment of the court builds on the principles stated in the previous judgment. Its original
conceptualization was oral. This means that it was essentially a body of unwritten legal rules
which were formulated by the King’s courts in an informal and flexible manner. As we noted
earlier, these courts, which were the Court of King’s Bench, the Court of the Exchequer and the
Court of Common Pleas, were collectively known as the common law courts. As the body of
common law developed, the common law became more rigid and identifiable. In fact, today,
we cannot with accuracy state that the Common law is a body of unwritten law. It has been
solidified as a result of the system of case reporting.
In time, rigid procedures for administering and applying legal rules, norms and remedies
by the Courts developed and these also form part of the uniqueness of the common law. One
such procedure is the ‘writ’, which regulates the initiation of legal proceedings in court. Indeed,
the emphasis on procedure is one of the more criticized element of the common law system,
often appearing to be a collection of rigid procedures which serve as an obstacle to justice.

THE DOCTRINE OF JUDICIAL PRECEDENT – CHARACTER AND RATIONALE

Central to the notion of the common law as a legal source is the binding precedent or stare
decisis. Translated, it means standing by the decision and not disturbing settled points, often
simply translated as ‘let the decision stand’.
 The doctrine of judicial precedent proceeds on the assumption that where there are no
applicable statutes on a particular issue, the judge must look to case law, that is, cases decided
previously on the said issue, to find the relevant law upon which to base his or her decision.
Thus, judges reason by analogy, these previously decided cases, are called ‘judicial precedents’.
There are two types of judicial precedents: ‘binding precedent’ and ‘persuasive precedent.’

Binding precedent
The doctrine of binding judicial precedent, stare decisis, is based on the function of the judges is
not to create law, but to find law in conformity with existing legal rules. Thus the judge has a
legal obligation to use decided cases, not merely for guidance, but is bound to apply the
principles of law found in such case. The coercive nature of the doctrine of precedent is a
feature peculiar to the English legal tradition (London Tramcars Co Ltd v London County Council
[1898]).

Persuasive precedents
In converse to binding precedents, persuasive precedents are those legal principles contained
in judgments which merely offer guidance. The judge will refer to these precedents but they are
not binding. Obiter dicta decisions, for example, may form the basis of persuasive precedents.
In constitutional matters, because of the similarity between the relevant constitutional
instruments, precedents from the USA, Canada, India and the European Court of Human Rights
are highly persuasive to the courts in the region.
The degree of persuasiveness of such a precedent depends on a variety of factors. These
include the jurisdiction from which it emanates, the status of the court which makes the
decision and its date.

ADVANTAGES AND DISADVANTAGES OF THE DOCTIRNE OF JUDICIAL PRECEDENT

The doctrine of binding precedent can be said to offer the advantages of legal certainty and
precision.
In Gallie v Lee, Lord Russell refused to support the suggestion that the House of Lords, highest
court in the British legal system ‘is free to override its own decisions’. This was so despite the
fact that the House of Lords had given itself the ability’ to do so. He further declared his firm
belief ‘in a system by which citizens and their advisors can have as much certainty as possible in
ordering their affairs.’
A case from South Africa painstakingly explains not only the significance of the doctrine
of stare decisis to the commonwealth, but also its true meaning and rationale. In Re State v
Walters [2003], it was noted in part that stare decisis is widely recognised it’ developed legal
systems… this describes
… general human tendency to have respect for experience. The maintenance of certainty of the
law and equality before it, the satisfaction of legitimate expectation entail a general duty of
judges to follow the ruling in previous judicial decisions. The individual litigant would himself
feel unjustly treated where if a past ruling applicable to his case were not followed where the
material facts were the same. It cuts down the prospect of litigation; keeps the weaker judges
along the right path, drastically limiting the play allowed for partiality… retaining public
confidence in the judicial machine… Certainty, predictability… equality, conformity,
convenience: these are the principal advantages.
There are certain disadvantages to the system of precedent. For example the excessive
volume of reported cases makes the location of legal principles difficult. Further there is the
danger of illogical, technical distinctions in the process of distinguishing precedents which leads
to excessive legalism and sometime absurdity. In addition the doctrine engenders rigidity within
the legal process. This rigidity is the most is the most serious disadvantage of the doctrine.

THE HIERARCHY OF COURTS

The operation of the doctrine of precedent depends on a system of hierarchy of courts. All
courts stand in definite relationship to one another. In the majority of the Commonwealth
Caribbean the Judicial Committee of the Privy Council sits at the apex of the hierarchy of the
courts. Two countries (Barbados, Belize and Guyana) have replaced the Privy Council with the
Caribbean court of justice (CCJ). Consequently, decision s of emanating from the Privy Council
or the CCJ are the most authoritative in the hierarchy. Next in the hierarchical structure are the
courts of appeal, the High Courts or Supreme Courts followed by intermediate courts such as
the family courts and the resident magistrate courts of Jamaica. Last, and therefore least
authority, are inferior courts such as the magistrates’ courts and juvenile courts.

CONCEPTS IMPORTANT TO THE DOCTRINE OF PRECEDENT

Some fundamental legal concepts are essential to the understanding of the doctrine judicial
precedent. These will be discussed in turn.

The ratio decidendi

Not every element or facet of a decision is binding on a judge in a consequent case. Rather, it is
the particular principle, rule or ruling of law contained in the decision. Still, not every statement
of law or legal principle contained within a decision is binding in a particular case.
Consequently, one must distinguish the ratio decidendi (that is, the binding element) from
other legal principles in any particular judicial decision. The ratio decidendi is not located easily
but may be defined as the principle or proposition of law stated by the judge to be applicable to
resolving the precise legal issue before the court. It is therefore, the legal rationale which the
judge gives for the decision that he arrives at in a particular case.DONOGHUE V STEVENSON – a
person owes a duty of care to those who he will reasonably foresee will be affected by his
actions.

AVOIDING PRECEDENT- THE PROMOTION OF FLEXIBILITY:

It is clear that the system of binding precedent would tend toward promoting rigidity within the
common law. One may well ask, how can the common law retain its original characteristics of
flexibility? The answer lies in the ability of the court to distinguish precedents in certain
circumstances in an attempt to produce desirable change to previous decisions which are
considered to be outdated, irrelevant, or inaccurately decided. There are several devices
available for courts to avoid binding precedent and thereby promote flexibility within the law.

OVERRULING DECISIONS

The process of overruling provides an avenue for legal rules to be changed, thereby importing
some flexibility into the doctrine of stare decisis. However, in a judicial system in which
deference is paid to past decisions, it is unsurprising that precedents often gain authority as
time goes on and older established precedents are often treated as sacrosanct. Thus, courts,
even final courts, are reluctant to disturb or overrule such precedents. This is particularly the
case since overruling operates retrospectively, that is, it is deemed to have applied even before
the decision to overrule the old principle. Overruling affects the rule of law, not just the
decision of the case which is overruled. When it occurs, the earlier rule of law is deemed
never to have existed. This is, in fact, part of the legal fiction which conforms to the declaratory
theory of law.
The authority to overrule precedent is given only to higher courts in certain strict
circumstances. The circumstances in which courts have the authority or may be persuaded to
overrule established precedents are discussed below. Judicial precedents thought to be
inappropriate may of course also be overruled by Parliament directly, through statute. Here we
are concerned, however only with the judicial overruling process.

Distinguishing precedent
Flexibility and the need for change may also be achieved by the possibility of distinguishing
decisions. The process of distinguishing is perhaps the principal means which judges employ to
evade judicial authorities which they consider inappropriate or unsound, thus enabling the
doctrine precedent to be flexible and adoptable. A precedent, whether persuasive or binding,
need not be applied if it can be distinguished on its facts. To distinguish a precedent, a court
must point to difference in the facts of the precedent and the current case. The judge in the
latter case is expected to Justify why the distinction in the material facts is such as to depart
from the precedent to permit the application of a different rule of law.

Reversing a decision
A precedent which has been overruled must be distinguished from a decision which has merely
been reversed. In the latter, only the particular case in the issue is affected, and the body of law
or legal principle remains unchanged. In contrast, where a precedent has been overruled, the
rule of law or legal principle which form the decision has been affected and will continue to
impact on future cases.

THE DECLARATORY PRECEDENT AND OVERRULING OF PRECEDENT- NEW DEVELOPMENTS

Certainly, a precedent which has been overruled is not an authority binding or otherwise.
However, as we have seen, process of overruling principles of law is approached with caution
by the courts. Hence, it is only where a principle is manifestly wrong, or has become irrelevant,
spent and untenable that it will be overruled.1
The attitude toward the overruling of decisions is intricately bound up with the declaratory
theory of the common law. This theory posits that the rules of common law have existed from
time immemorial, hence the common law cannot be changed. Rather, certain rules are restated
for accuracy. Consequently the judge’s function is not to create or change the common law, but
solely to find the statement of law and declare it. The theory proceeds upon the separation of
power principle. The practical effect of this theory is that where a decision is overruled by a
higher court, it is decreed to be based on a misunderstanding of the law. The earlier incorrect
legal principle is deemed never to have existed. The logical consequence is that judicial
overruling operates retrospectively as opposed to the
statute which operates prospectively.

1
See, eg, Miliangos v George Frank (Textiles) Ltd [1976] AC 443, where the House of Lords overruled its previous
judgment that judgment debts must be given in sterling.
 (e) Custom

Both custom and convention may be sources of law. These are legally distinct concepts but they
share certain important characteristics. They both arise out of the social mores and practices of
a people. Similarly, they both depend on an additional process before they can be appropriately
viewed as legal sources. This missing link is the judicial process. The courts must declare
customs and conventions as law and not mere social practice. As such, custom and convention
cannot be considered as entirely independent sources of law

In most societies, customs evolve over time to become law. Laws which evolve from customs
are more likely to reflect the social reality of which they are a part. Arguably, in the
Commonwealth Caribbean, our laws have never reflected our customs. For all practical
purposes, modern day Caribbean society is an imported society. Colonisation and slavery,
through the plantation system, saw to it that the customs which were brought by the African
slaves and the Asian indentured labourers did not survive meaningfully. Similarly, the customs
of the original peoples, the Amerindians, were lost. Our legal systems and their laws were
shaped by the plantocracy. We have already seen how the doctrine of reception gave birth to
these laws.
Rules governing custom in English law are woefully inappropriate to our historical, sociological
and even geographical circumstances. Often, this has made it difficult for custom to be
expressed as law. Yet, while custom may be a rare source of law in the Commonwealth
Caribbean, this infrequency in no way should diminish its importance to the legal landscape,
particularly to a society serious about self-definition.

(e) international law and

(f) equity.
The common law grew out of the customs and practices of the English, as promulgated in the
ancient common law courts. Yet, when we speak of the common law as a legal tradition, we are
not only referring to the body of law defined by the common law courts. We must also include
a body of law which developed in separate and different English courts. This body of law is
known as 'equity', or equitable principles. In lay persons' language, equity means fairness,
justice, or what is morally just, but in a legal sense, it is a much more specific concept. Still, it
embraces such notions, as it is a system which was inspired by ideas of justice. It is commonly
said that the law of equity is based on rules of conscience. Equity may be defined as those
principles of English law which were developed and applied in the chancery, admiralty and
ecclesiastical courts.
Equity, is, therefore, a separate and distinct body of English law which grew up
alongside, but not together with, the common law. While equity is part of the common law
tradition, it is not part of the common law. What it means is that the common law tradition has
a dual structure. One part of the common law is made up of the common law rules, while the
other comprises the rules of equity.

Maxims of equity
The nature of equity is further expressed by examining the 'maxims of equity'. These are
sayings which have developed that illustrate the way in which the body of law that is equity will
be applied. The more popular of these legal maxims are:
(a) 'Equity does not suffer wrong to be without remedy.' This maxim expresses the ability of
equity to create a new remedies where none exists under the common law.
(b) 'Equity does not assist a volunteer.' For example, a decree of specific performance to
compel a person to do something will not be granted to a person who has given no
consideration for it.
(c) 'He who comes to equity must come with clean hands.' This is perhaps one of the best
known of the maxims and explains that a person who expects a remedy in equity must
himself have a clear conscience and must have done no wrong with respect to the
matter before the court. In Hubbard v Vosper [1972], where the plaintiff sought an
 injunction to restrain breach of copyright and confidence in a book critical of the cult of
Scientology. The plaintiff was found to have been protecting their secrets not therefore
deserving of a remedy in equity.
(d) 'Equity looks to the intent and not to the form.' The doctrines of part performance and
estoppel may be traced to this maxim.
(e) 'Equity acts in personam rather than in rem.' In accordance with this maxim, the right of
a beneficiary will be viewed essentially as a personal right rather than a right in the
property itself and cannot, therefore, be assigned.
(f) ‘He who seeks equity must do equity'. It means that a person applying for an equitable
remedy must be prepared to act in an equitable manner himself. While this maxim goes
hand in hand with the maxim on ‘clean hands’, the difference is that the requirement to
‘do equity’ looks to the future and not the past, as the requirement to come with ‘clean
hands’ does.

HIERARCHY OF THE COURTS

 Courts in the Commonwealth Caribbean are influenced by that which exists in England.

 The power to create and regulate Court in Commonwealth Caribbean in created by the
Constitution and other statutory instruments to be found in the territory.

 Courts systems in the Commonwealth Caribbean is organized according to the three tier
structure corresponding to the rank the particular court is accorded

 The higher the position of the Court in the hierarchy the more authoritative it is.
THE JUDICIAL COMMITTEE OF THE

PRIVY COUNCIL

• The Court which sits at the top of the hierarchy is the Privy Council.

• Section 110 on the Jamaican Constitution stipulates that “an appeal shall lie from decisions of
the Court of Appeal to Her Majesty in Council as of right in the following cases:-

– where the matter is of the value of one thousand dollars or upwards, involves directly
or indirectly a claim to or question respecting property or a right of the value of one
thousand dollars or upwards, final decisions in any civil proceedings;

final decisions in proceedings for dissolution or nullity of marriage

– final decisions in any civil, criminal or other proceedings on questions as to the

interpretation of this Constitution; and

– such other cases as may be prescribed by Parliament.

Further, an appeal shall lie from decisions of the Court of Appeal

to Her Majesty in Council with theleave of the Court of Appeal in the

following cases –
 – where in the opinion of the Court of Appeal the question involved in the appeal is one
that, by reason of its great general or public importance or otherwise, ought to be
submitted to Her Majesty in, decisions in any civil proceedings; and

– such other cases as may be prescribed by Parliament

• The Privy Council, headquartered in London, is one of the oldest institutions of the British
government, though over the years it has adapted to reflect the development of democracy in
Britain.

• The Council’s Judicial Committee acts as court of final appeal for former British colonies

It is also the court of last resort for overseas British territories and Crown dependencies

• The Privy Council also rules on specific domestic matters.

• For Commonwealth cases, five judges normally sit on the Council.

THE COURT OF APPEAL

• The Court of Appeal includes the Court President, the Chief Justice (who is invited by the
President), and six justices. Any individual who is not satisfied with a ruling of another court
(barring petty sessions court) may appeal to this court, which is attended by a Judge in
Chambers. The President is appointed by the Governor General on the advice of the Prime
Minister and in consultation with the minority leader. He or she is also a member of the Judicial
Services Commission.

• Appeals against decisions from both the Supreme Court and the Resident Magistrate’s Court are
heard in the Court of Appeal.

• A Judge of the Court of Appeal must be an Attorney-at-law of at least ten years standing. Judges
of the Court of Appeal are appointed by the Governor General on the recommendation of the
Judicial Services Commission.

• The Chief Justice and the President of the Court of Appeal are appointed by the Governor
General on the recommendation of the Prime Minister after consultation with the Leader of
Opposition.

• See Sections 103 -109 of the Constitution for its provision in respect of the Court of Appeal and
its Judges.

THE SUPREME COURT

• The Supreme Court has unlimited jurisdiction in civil and criminal matters.
 • It consists of the Chief Justice, a Senior Puisne Judge and at least twenty other Puisne Judges.

• Puisne Judges must be Attorneys-at-law of at least ten years standing.

• Judges of the Supreme Court are appointed by the Governor General on the recommendation of
the Judicial Services Commission.

• They have jurisdiction to hear applications regarding breaches of fundamental rights and
freedom as provided for under the Constitution.

• This Court exercises important supervisory functions over tribunals like the Industrial Disputes
Tribunal and the Resident Magistrate’s Court in the hearing of writs of habeas corpus and
making of orders of certiorari, mandamus and prohibition.

• Two divisions of the Supreme Court are the Revenue Court established in 1971 and the Gun
Court established in 1974.

• The Gun Court Act was later expanded to include the Western Regional Gun Court that hears
gun offences committed in the parishes of St. James, Trelawney, Westmoreland and Hanover.

The third division of the Supreme Court is the Commercial Court which began operations in February
2001.

• The Circuit Court is the criminal jurisdiction of the Supreme Court that is convened in Parishes
for the proper administration of justice. It is convenient for the parties involved, as it eliminates
the need to travel to Kingston for the prosecution of cases.

• 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. Catherine Circuit Court or the St. James Circuit Court.

• The criminal jurisdiction of the Supreme Court is called the Circuit Court, which meets in
parishes, relieving the parties involved from having to travel to Kingston.

• The court exercises civil and criminal jurisdiction, conducting trials with one judge and a jury of
twelve (for murder cases) or seven (for other criminal cases). Criminal cases reach the Supreme
Court via procedural orders originating from the resident magistrates.

• The remaining institutions are named after the respective parish, for example, the St. Catherine
Circuit Court or the St. James Circuit Court.

• Through its civil jurisdiction, the Supreme Court hears civil actions for cases of negligence,
breach of contract, slander and libel, violations or trespass, divorce administration, matters of
equity, custody and restraining orders.

• It has the power to issue prerogative writs and citations.

 • See the Judicature (Supreme Court) Act

Revenue Court

• Established through the 1971 Revenue Court Act, this court is a superior court of records with an
official seal and is overseen by a judge who is a senior member of the Supreme Court. The
Revenue Court covers matters under the following acts:

• The Customs Act

• The Excise Duty Act

• The Valuation Act

• The Income Tax Act

• The Land Development Duty Acts

• The Transfer Tax Act

• The General Consumption Tax Act

Gun Court

• The Gun Court was established in 1974 and consists of several divisions in the Superior Courts of
Records (e.g. the High Court Division, which was established in 1976) and the Circuit Court
Division, which hear cases of firearm crimes that carry a sentence of mandatory life
imprisonment.

Family Court

• The Family Court deals with issues related to child support, juvenile delinquency, custody and
guardianship of children, adoption, and married women’s property rights in the corporate
sector. It operates in Kingston and Montego Bay, where its jurisdiction is extended to the
subdivisions of St. James and Hanover. In other districts the resident magistrates’ courts
normally attend to such matters.

Traffic Court

• This court hears matters related to the Road Traffic Law in Kingston and St. Andrew. In other
areas these cases are heard by the resident magistrates’ courts.

Petty Sessions Courts

 • These courts deal with minor offenses and are usually presided over by justices of the peace.
Whereas appeals of any other court are submitted to the Court of Appeal (or Privy Council),
appeals from these courts are dealt with by a judge in chambers.

RESIDENT MAGISTRATES COURT NOW KNOWN AS THE PARISH COURT

• There is a Resident Magistrate’s Court for every Parish and it has jurisdiction within that Parish
and one mile beyond its boundary line. This Court presides over both civil and criminal matters.

• The divisions of the Resident Magistrate’s Court are the Family Court, the Juvenile Court, the
Traffic Court, Gun Court, Small Claims Court, the Drug Court and the Night Court.

• The Resident Magistrate’s Court has limited jurisdiction in both civil and criminal matters; the
amounts and the extent of the jurisdiction of this court is provided for in the Judicature
(Resident Magistrate’s) Act.

The Resident Magistrate must be an Attorney-at-law of at least five years standing. Resident Magistrates
are appointed by the Governor General and the Judicial Services Commission.

• Civil matters tried at a Resident Magistrate’s Court include recovery of possession, recovery of
rent, granting of probate and letters of administration.

• The Resident Magistrate’s Court has no power to hold a trial for certain criminal offences
including murder, treason and rape, however in such cases a Preliminary Examination or enquiry
into the charge is held.

• In this enquiry, unlike a trial where the objective is to determine whether the defendant is guilty
or not guilty, the purpose is to determine whether the evidence is sufficient for the accused to
stand trial at the Supreme Court.

• The jurisdiction of this Court is defined by Statute. [ See the Judicature (Resident Magistrates)
Act]

• The CCJ was inaugurated in April, 2005. This entity has two jurisdictions, original and appellate.
The Court is empowered to rule in original jurisdiction on disputes related to the CARICOM
Treaty (the Revised Treaty of Chaguaramas). It acts as court of appeal for its member countries
in both the civil and criminal areas.

• The appellate jurisdiction is similar to that of the European Court of Justice and Court of First
Instance, the Andean Court of Justice and the International Court of Justice. Jamaica has only
accepted the Court’s original jurisdiction (in other words, it only recognizes its power to rule on
trade disputes among CARICOM countries).

• As no political consensus has been reached regarding the CCJ’s appellate jurisdiction, the Privy
Court continues to be the country’s last instance appeals court.
 • The Regional Judicial and Legal Services Commission appoints CCJ justices, whose security and
tenure are covered under the terms of the Draft Agreement. Justices may only be removed from
office after a special tribunal is convened and advises such action.

The Court’s Chief Justice is appointed by member states’ leaders after being recommended by the
Commission. This person can be removed from office only for due cause after a special tribunal
convened for that purpose advises such removal to the Commission

• In order to guarantee a high level of competence, justices can be citizens of any Commonwealth
country, even those that are not CCJ member states.

• The Court will be financed from the interest accruing on a trust fund valued at US$100 million,
which is managed by the Caribbean Development Bank in Barbados. The measure was taken in
order to ensure that CCJ justices may act independently and are not subject to political pressure.

CORONERS COURT

• Jurisdiction provided for under the Coroners Court Act

• The Resident Magistrate for each parish is ex-officio the coroner for that parish. Where a
person dies in certain suspicious circumstances the coroner has a duty to investigate. The
scheme of the Coroners Act is focused on the procedure to be followed by the Coroner in
fulfillment of that duty. But one must be aware that the police also has a duty to investigate
death in suspicious circumstances. How the work of the two entities is carried out without
compromising the integrity of the two processes is central to this important area of the criminal
justice system.

• When a death occurs and “foul play is suspected‿ a post mortem examination is ordered by a
Justice of the Peace or the Coroner.

The report of the examination is to be sent promptly to the coroner through the Superintendent of
Police. It is for the Coroner, upon receipt of the report and statements collected by the police, to
determine whether to hold an inquest with or without a jury or to say whether or not any useful
purpose would be served in holding an inquest or to postpone it because someone has been charged for
a crime arising out of the death in question.

Separation of Powers

Meaning and purpose

From the principle espoused by Aristotle,2 Locke3 and numerous modern commentators, it is possible to
discern a multiplicity of meanings ascribed to the doctrine of separation of powers. Marshall captures
the spirit of various viewpoints with the poignant observation that it is a ‘simple phrase’ which yields a
‘cluster of overlapping ideas’. These he classified into:

(a) The differentiation of the concepts ‘legislative’, ‘executive’ and ‘judicial’.

(b) The legal incompatibility of office holding as between members of one branch of government
and those of another, with or without physical separation of persons.

(c) The isolation, immunity, or independence of one branch of government from the action or
interference of another.

(d) The checking or balancing of one branch of government by the action of another.

(e) Coordinate status and lack of accountability of one branch to another.

The Caribbean constitutions adopt a halfway house between the doctrine as understood in
constitutional law of the USA and as applied to the British Constitution. Most commentators would
agree that, in the UK, separation of powers strictly speaking between Judiciary and the executive and
the legislative.

The system of checks sand balances that has served Britain well has been rooted in social norms,
habits and customs, usually styled conventions. In the case of the USA however, the Constitution was
carefully crafted so as to ensure that the executive branch did not override the legislative branch. 4

Sir Allen Lewis has commented on the American situation in these terms:

In the Unites States, however, where also in the 18 th and 19th century much concern was
exhibited about the securing of political liberty and the curbing of arbitrary powers,

2
In Aristotle, 1962

3
Locke, 1960, 1977, Second Treatise, XI, para 142 in philosophy, Politics and Society, 1956, Oxford: Blackwells.

4
Madison, The Federalist No 51, 1788 (US Congress).
 dependence on social convention as a crucial mechanism was not accepted as sufficient. For
the Founding Fathers of the political system, social conventions has to be specifically
underpinned by special political institutions provided in advance with legal and political
authority of sufficiently substantial weight to be effective countervailing powers. If there is
any country that we associate today with notions of countervailing powers, of separation of
spheres of political and legal authority, each occupied by separate personnel – the – so –
called separation of powers- it is the United States. The framers of their Constitutions
consciously and elaborately made it an essay in the separation of powers, and provided
such rigid checks and balances between the three organs of government extremely
difficult.5

The principle of separation of powers embodied in the Constitution was confirmed by the Privy Council
in Hinds v Crown, in which it was held that it was a violation of the separations of power enshrined in the
Jamaican Constitution for the Jamaican parliament to seek to establish a Gun Court giving Resident
Magistrates jurisdiction reserved for Supreme Court Judges under the Constitution. This judgement
represents the first instance in which parliament’s legislation by an independent Caribbean State was
invalidated as unconstitutional. Much more importantly the case also settled the point that there is
indeed a separation of the legislative and executive from the judicial power and that the Supreme
Court’s jurisdiction is especially protected. 6

This characteristic jurisdiction was said to comprise:

(a) unlimited original jurisdiction in all civil matters

(b) unlimited original jurisdiction in all criminal offences
(c) supervisory jurisdiction over proceedings of inferior courts
But that apart, a question may be posed is whether the American Model of the Separation of the
separation of powers would have better suited the Commonwealth Caribbean. Sir Allen Lewis provides
at least one potent reason why the American Model would not have been appropriate. In his words:

5
Lewis, 1978.

6
See, Carnegie, 1996.
 Since we gave ‘written’ constitutions... the question may be asked whether the doctrine
of separation of powers as applied in the United States would not be equally, or more
relevant to the Caribbean, as the British system. In my opinion it would not. The United
State Constitution created what has been described as a subdued executive, with
assigned powers defined in writing, unlike the British, which is residual executive with
‘inherent’ powers and ‘prerogatives’. The restriction imposed on the President’s
authority, the need to obtain the consent of Congress to his policy proposals while being
unable to enter the chambers to communicate or persuade, the conflicts and tensions
which arise when his party has a minority in one or both of the chambers, makes a
government almost an impossible burden. A hostile Congress can effectively block
development by refusing to pass progressive legislations. This is unsuited to the needs of
developing countries which need to move at a much faster pace than that at which
developed countries move over so many countries. For practical purposes, it is essential if
developing countries are to move forward quickly, that there should be the utmost trust
and cooperation between the legislature and executive and the administration to
facilitate implementation of government’s economic and social policies.

The Preferred meaning of the doctrine

Saunders J puts it succinctly when he said: 7

... our democracy rests on three fundamental pillars, the legislative, executive and the
judicial. All must keep within the bounds of the constitution. The judiciary has the task of
seeing to it that the legislative and the executive action does not stray outside of those
boundaries on to forbidden territory. If that occurs and citizen with standing complains,
the court declares the trespass and grants appropriate remedies.

7
Benjamin et al v Minister of Information et al, Suit No 56 of 1997, decided 7 January 1998, H Ct Anguilla.
 Within their constitutional parameters the legislature and the executive are responsible
for enacting and implementing such policy measures as in their wisdom they consider to
be most appropriate for the people. The judiciary has to be careful that it does not stray
from its function and usurp the authority and role reserved for the other two pillars.

I reiterate that there is a fine line which the court must tread in these circumstances. On
the one hand it must protect the citizens and guarantee them the rights and freedoms
which the constitution proclaims. On the other hand, the court should not intrude in the
preserve of the other branches of state.

For our democracy to operate effectively, it has been said that it is necessary that a
certain comity should exist between the three branches. Each should respect the role and
function of the other. The court is subject to and must enforce laws passed by parliament
that are intra vires to the constitution. The executive should respect and obey the
decisions and accept the intimation of the court. If this comity does not exist, then the
wheels of democracy would not turn smoothly. A jarring and dangerous note will
resonate from them.8

Conventions of the Constitution

Have conventions survived the constitutional text?

One central issue in the West Indian public law is whether constitutional conventions have been
superseded by the written constitutional text. Professor Carnegie bemoaned the fact that ‘conventions
of the constitution did not die the death that might be expected given the adoption of the written
constitution.9 What is the true meaning of ‘convention’ and why should they die merely because of the
written text?

In the UK, with no written constitutional text, conventions which have developed overtime play
a critical role in the process of identifying the meaning of various constitutional rules. These

8
Barendt (1995).

9
Carnegie, AR, ‘On comparing American and West Indian constitutional law’, unpublished paper.
understanding, habits, customs and practices which are not written down in any authoritative sense are
nevertheless obeyed by the directorate, although they are not enforceable in the courts or by
Parliament.10 A reasonable explanation would lie in these unchallenged usages qualifying for
constitutional status. Of the attributes claimed for conventions, three may be singled out.

First they help us to interpret the law. Second, they help to regulate the relationship between
the different branches of government. And, third, they act as useful tools in adjusting the strict letter of
the law to meet the imperatives of the times. 11

Accordingly, the traditional treatment of this topic has been to identify the major conventions of
British Constitution, classify them in order of some importance, discuss their relationship with the law
and consider the effect of codifying conventions in West Indian Constitutions. The following
conventions are generally treated as some of the relevant British conventions to be considered in the
context of West Indian Constitutions:

(a) The Queen always assent to the bills of Parliament;

(b) The Queen acts on the advice of the minister even though the executive power resides in
her
(c) The Cabinet is collectively responsible to Parliament for the conduct of the cabinet
(d) Except in exceptional cases, the Queen summons and dissolves parliament on the advice of
the Prime Minister
(e) Parliament must meet annually to raise taxes
(f) Legislation involving tax must be introduced only in the lower House
(g) The Queen appoints as the Prime Minister the person who commands the support of the
majority of the House of Commons
(h) The Queen appoints and dismisses ministers on the advice if the Prime Ministers
(i) The government must resign if defeated on a vote of no confidence in the lower House on a
major policy question.
(j) The House of Lords, when sitting as an appellate body is staffed only by the Law Lords. 12

10
Dicey, 1931, p 23 (see no, 10th edn 1959).

11
Barnett (1998)
In groping our way to an acceptable definition of conventions in West Indian public law, it is necessary
to debunk the notion that conventions only apply to unwritten constitution.

To the extent that even countries with written constitutions do sometimes rely on conventions,
we may conceive of conventions as representing the history and tradition behind the legal norm in the
sense of helping our understanding of the law in context. In that sense also, conventions may be
regarded as political rules which underlie governmental practice. These rules apply irrespective of
whether they are codified or not. Naturally, these rules are heavily accentuated in the UK, where there
is no single written text of the Constitution. As a legal system evolves, so do the historical traditions
surrounding that evolution become important.

Codification of Conventions in West Indian constitutions

Cursory examination of West Indian constitution reveals that the principal conventions which we
identified earlier on have more or less been incorporated into the text of those constitutions. It seems to
be the view of legal commentators that, though stated expressly, these rules were intended to be
understood as conventions rather than laws. 13 For example, s 65(1) of the constitution of Barbados
provides that whenever the Governor General has occasion to appoint a Prime Minister, she shall, acting
in her discretion, appoint the member of the House of Assembly who, in her judgment best able to
command the confidence of a majority of the members of that House. 14 That section not only captures
the spirit of convention relating to the appointment of a Prime Minister by the monarch, but also
records the modern practice that the Prime Minister must be a member of the lower House.

12
This list is not intended to be exhaustive. Other less important doctrine of ministerial responsibility relate to
Parliament, the non participation of the Queen and the judiciary in politics and the procedures which guarantees
fair play to both parties in debates in the House.

13
Barnett (1977)

14
 Also, where necessary, these conventions have been adapted to the local circumstances. So
important differences can be discerned in the appointment of judges, the process has largely been
depoliticized.15

Reference can also be made to non-

justiciablity clauses in Caribbean Constitution as further evidence in support of the view that these
clauses were to take on the character of conventions rather than laws. These clauses relate to the
exercise of the Governor General’s function as well as those of the Service Commission. But even in this
regard, the courts have adopted the salutary rule that where the error or matter complained of is so
serious as to go the jurisdiction, then the decision of the functionary is reviewable. This means that such
clauses will not prevent the court from reviewing the exercise of such powers.

Non-codified Conventions

Professor Carnegie has listed a number of conventions in West Indian constitutions which have not
been codified.16 These cover the conventions whereby:

(a) The Queen invariably accepts the ‘advice’ of the Privy Council sitting in an appellate judicial
capacity;
(b) The Governor General is required to signify his assent to legislation or otherwise; and
(c) ‘standards of propriety’ expected of a minister of government are generally agreed upon.
(d) The practice of appointing two trade unionists as Senators in Jamaica. 17

A west Indian Perspective

It is possible to view conventions from a purely West Indian approach, rather than from the viewpoint of
the British Constitution. Indeed, as the constitutions grow, they develop their own conventions. This

15
This does not apply to the appointment of the Chief Justice. Barbados is the only country in the Commonwealth
Caribbean that mirrors the British example of total politicization of Supreme Court judges. See the Barbados
Constitution s 81(1).

16
Carnegie, Constitutional Law Lecture Notes, unpublished, UWI.

17
Barnett, 1977.
growth occurs irrespective of the political practices which have been written as part of the fundamental
laws of the Caribbean territories.

From the beginnings of responsible government in the Caribbean, one can discern certain
practices which could pass for established conventions, practices such as:

(a) The Governor in colonial times calling on the majority leader to be the chief minister or Premier;
(b) The majority party dominating the process for election of speaker;
(c) The appointment and removal of the Governor General always being on the advice of the Prime
Minister.
All conventions discussed are adhere to, once developed and recognized, not because the courts will
enforce them, but because political expediency and respect for traditions demands their observance. In
an evolutionary constitutional setting such as pertains to the commonwealth Caribbean, each
constitution will continue to evolve on its own conventions as well as play a fundamental role in the
institutions of government

ASSIGNMENT 1
UNIT 1 Legal Systems

1. (a) Identify the primary source of law in Jamaica. 1 mark

(b) Justify your response. 2 marks

2. Aside from your answer in 1(a) identify and describe

THREE (3) other sources of law. 3 marks
3. Explain the difference between a binding and a persuasive
precendent. 2 marks

4. Succintly explain the role of the executive, legislature

and the judiciary. 3 marks

5. Explain two ways in which the effect of the doctrine

of judicial precedent may be avoided. 4 marks

6. Using a diagram, illustrate the hierarchy of the

Courts in Jamaica. 5 marks