Law and Gov Notes Merged

lOMoARcPSD|34683058
Law and gov notes - merged
Law, Governance, Economy and Society (The University of the West Indies Mona)
Scan to open on Studocu
Studocu is not sponsored or endorsed by any college or university

Downloaded by Britanya Jones (britanyaj17@gmail.com)
lOMoARcPSD|34683058
There are instances where rules of law

are relevant but not used as an
Sources of Law: authoritative source. E.g. using the
Barbadian legislation as a reference
This will cover on how to deal with a matter, however,
their legislation cannot be used to
*Common Law also known as judicial law make a ruling in Jamaica.
*The constitution
There exists rules of customs.
*Legislation However, these may not be considered
in the courts because these rules did
*International Law
not come from an authoritative source
of law.
Common Law
As a source of law, common law is a body of law developed by judges over a period of time in a
course of dissolving disputes. Also called Case Law. The judge will look at the facts of the face,
the claims of both parties to the dispute, and will develop a rule of law that will govern this
particular situation.
The Common Law is therefore developed on a case-by-case basis. In each case, the court builds
on the principles stated in the previous cases. Common Law principles usually apply when there
are no other statues (legislation) to govern particular issues or where the statutes do not have
enough provisions or are insufficient.
Central to the common law is the Judicial Precedent (Stare decisis—let the decision stand). This
doctrine allows the judge to look to previously decided cases on the same issue to find the
relevant law upon which to base his decision.
The principles of law found in these previously decided cases are called Judicial Precedence.
There are two types of precedence: (1) Binding Precedence and (2) Persuasive Precedence.
Binding Precedence: These are those principles in a case that a judge MUST follow. These
cases usually come from a higher court. For example, a decision from the Privy Council is
binding to the court of appeal in Jamaica. However, a court is not bound by the decision made by
a lower court.
Persuasive Precedence: Those principles in a case that merely offer guidance. The judge may
refer to those precedents, but he is not bound to follow them. These cases may originate from
lower courts or courts in other jurisdictions. The degree of persuasiveness of a precedent depends
on a number of factors. E.g
*The status of the court making the decision (a lower court’s decision may be ignored),
*the date of the decision (laws may have changed since then),
*and the reputation of the judge who presided when the precedent was set.

lOMoARcPSD|34683058
Avoiding Precedents:
Judges can avoid precedents in certain cases:
Overruling decisions: A decision may have been overruled by a statue or by a higher court.
Judges are not bound by overruled decisions as the court will take the view that the law has
changed since that case was decided.
Distinguishing Precedents: A precedent need not be applied if it can be distinguished on the
facts. To distinguish a precedent, the court must point to a material difference in the facts of the
precedent and the current case. (E.g. a case that relied on visual/facial identification of an alleged
criminal, while the present case does not)
Reversing a Decision: A judge does not have to follow a decision that has been reversed. A
previous decision has been altered or reversed when for example: an appellate court has applied
the same relevant principles of law and arrived at a different conclusion. (Note that the appellate
court in Jamaica is the Court of Appeals)
First Impression Decisions: Where there are no existing precedents on a particular issue, the
judge must create a precedent.
Advantages and Disadvantages of Precedents

• Precedents offer legal certainty and precision, and therefore assist the legal decision-
making process.
• However, it also creates rigidity within the legal process and therefore important legal
changes might not take place.
•

lOMoARcPSD|34683058
Sources of Law
Methods by which the laws were created.
● Common Law
● Constitution
● Legislation
Common Law (Case Law/Judge-made Law)
● Body of rules developed overtime by judges during resolving disputes.

● It is developed on a case by case bases.
● In each case the court builds on the principles stated in the previous case.
● Its principles apply when there are no statutes to govern
NB Central to the doctrine of stare decisis (Latin) or judicial precedent (Same thing as Stare decisis)
This allows the judge to look to previously decided cases on the SAME issue to find the relevant law,
upon which to base his/her decision.
The two types of Stare decisis
● Binding Precedent
● Persuasive Precedent
Binding Precedent
These are principles in a case that a judge must follow
NB Courts are not bounded by laws of a lower court it must be from a higher court.
Persuasive Precedent
These are principles that merely offer guidance, the judge may refer to them but he/she isn’t bound
to follow them. These may originate from lower courts or courts in other jurisdictions.
The degree of persuasiveness will depend on a number of factors, including: the jurisdiction the case
comes from, status of the court (higher or lower), date of the decision (how current), reputation of
the judge.
Courts may avoid precedents in certain cases:
Overruling decisions – a decision may have been overruled by statutes or by a higher court.
Judges are not bounded by overruled decisions because the court will take the view that the
law has changed since that case was decided
Distinguishing Precedent - this may not be applied if it can be distinguished from the facts.
Distinguishing a precedent, a court must point to a material difference in the facts of the
precedents and the facts of the case currently before the court. Eg. One cannot use voice
recordings when the identification was based on visual evidence.
Reversing a Decision- a previous decision has been reversed eg. An appellate court has
applied the same principles of law and have arrived at a different conclusion.
Adv. & Disadv. Of Precedents

lOMoARcPSD|34683058
Adv. Legal certainty and assists the legal decision-making process
Disadv. Creates rigidity within the legal processes, therefore, important legal changes might not take
place.
Constitution
This is the document which establishes the structure, procedures, powers, and duties of a
government, it also guarantees certain rights to the citizen.
NB Commonwealth Caribbean Constitutions are based on the British Westminster model but have
been modified to suite their content.
Key features of our constitution include:
❖ Codification- Codified Constitution is one that is written in a single document which is the
single source of constitutional law in this state.
NB UK does not have a codified constitution
NB the constitution is higher than any other law (supreme law of the land). Anything that
challenges the constitution will be declared void.
Adv. It is simpler to read and easily understood
❖ Supremacy - any law that challenges the constitution will be void

❖ Amendment Procedures- Extraordinary procedures are required for constitutional
amendments. In the Jamaican context:
- Simple majority – 50% of the vote + 1. This can give u the means you need to amend
the constitution.
- Special majority – this is when you receive 2/3 of the votes
- Special majority + a Referendum- 2/3 + votes
❖ Separation of powers doctrine- Constitutions usually divide power between various
branches of government, the standard model involves the three main branches of
government.
Safeguarding judicial independence
Constitutions usually have safeguards for judicial independence. Provisions are in place to protect
the judges (see chapter 7 of the constitution)
Provisions
▪ Independent Appointment Process – the chief justice and president of the court of appeal
shall be appointed by the governor general, acting on the recommendation of the prime
minister after consultation with the leader of the opposition. The other judges are
appointed by the governor general on the advice of the judicial services commission.
▪ Security of tenure- no office of judge of the supreme court or of the court of appeal shall
be abolished while there is a judge holding that office (job is secure). A judge usually holds

lOMoARcPSD|34683058
office till the age of 70. However, a judge can continue in office beyond that age with the
governor general’s permission to complete cases that he/she has started.
▪ Termination - a judge can only be removed from office by the governor general after the
judicial committee of the privy council (JCPC) has advised that the judge should be
removed. A judge maybe removed from office only for in ability to carry out the functions
of the office due to illness (physical or mental) or any form of misbehaviour.
▪ Remuneration (salary)- their salaries shall not be altered to his/her disadvantage while
holding office.
NB Judges enjoy judicial immunity, they are protected from liability for anything done or said while
in office in the capacity of a judge.

lOMoARcPSD|34683058
Week 2: Sources of Law II Sept 12, 2018
Public vs Private Law

The Law: The law is a set of rules enforced by courts which regulate the
government of the state and govern the relationship between the state and its
citizens. Law can also be defined as a system of rules which a particular
country or community recognizes as regulated actions of its members and
which it may enforce by the imposition of penalties.
Classifications of Law:
A. Public Law: There are Three Special Areas
(i) Constitutional Law
(ii) Administrative Law
(iii) Criminal Law—These consists of offenses to the state. In these
cases a prosecutor prosecutes a defendant. Prosecutions are
brought in the name of the crown, signified by R for Rex (King)
or Regina (Queen). For example, the case title: R v Smith.
Here Smith is the defendant being accused of a crime
against the state. These offenses include murder, theft, drunk
driving, etc.
B. Civil Law: This constitutes of disputes between private individuals. In

these cases a claimant sues a defendant. An example of a Case title is
Sinclair vs. Chadrie. These cases will include breach of conduct,
property laws, etc.
Constitutional Law:
The Constitution is considered the supreme law of the country and any law that conflicts with the
constitution is void. Parliament can only exercise its function within the bounds of authority
given to it by the constitution. The court has the power to strike down laws that are considered
unconstitutional. The constitution consists of different kinds of provisions and each require
different procedures for amendment, such as

lOMoARcPSD|34683058
(1) Ordinary Provision: which requires a simple majority vote in both houses of parliament.
(Recall a simple majority is 50% + 1 more)
N.b both houses here in Jamaica, refers to the Lower House called Parliament and the
Upper House called the Senate.
(2) Entrenched provision: these require a special majority vote (two-thirds of both houses).
One example of an entrenched provision is the right to the privy council as a final court
of appeal. A two-thirds majority in both upper and lower houses is required to amend this
provision.
(3) Deeply entrenched: These require a special majority vote and a referendum (a public
vote). One example of a deeply entrenched provision is the one that places the queen of
England as the Head of State in Jamaica.
Note: You should follow news outlets and read the news for this course.
The Constitution protects the fundamental rights of every citizen of a country. Also, it
legitimizes the state through the existence of an independent body of law which regulates the
state—the organ of the government and the boundaries of the state.
Legislation
The term legislation refers to laws in the form of acts passed by parliament. Usually, the
legislation is passed by a majority of the votes in parliament and they cover a wide range of
activities.
International Law
International law is also called Public International Law, or Law of Nations. It is the body of legal rules,
norms and standards that apply between sovereign states and other entities that are legally recognized as
international arts.
Two of the main sources of international law are Treaties and Customs (Customary International Law).
Treaties are signed agreements between two or more states on a particular matter (or matters).
Customary International Law is that law which has evolved from the practice or customs of a state. For
laws to be considered customary, they must meet specific criteria:
Opinio Juris: This refers to a conviction or a psychological belief by a state with respect to certain rules.
State practice: Laws that are practiced are widely accepted by other countries and they are practiced
consistently by the state.

lOMoARcPSD|34683058

lOMoARcPSD|34683058
Law & Gov 20/09/17
Sources of law continued
Legislation
Legislation takes precedents over common law. Legislation refers to a body of legal rules
which are written down by the law-making body of a state. That body is parliament.
Section 48 paragraph 1 of the constitution states that parliament shall make laws for the
peace, order and good governance of Jamaica.
Parliament is also given the power to delegate its law-making responsibility to other
authorities and the laws made by those authorities are called delegated legislation or
subordinate legislation.
Parliament’s reason for this is to not clutter the act with the little details hence why delegated
legislation takes place.
Functions of Legislation
● To revise common law rules
● To codify pre-existing law by bringing all rules on a subject matter into one
document.
● Clarifying the law by way of amendments
● To change the law in response to pressure groups eg. Environmental groups
Legislation, as opposed to common law which builds on previous case laws, legislation is
created, is dynamic and is an effective tool for law reform.
International Law
This largely concerns the relationships between states, however, it also concerns
relationships with international organisations and individuals, especially under the area of
human rights, they now have duties and responsibilities that fall within/ under international
law.
The two main sources of international law are:
Treaties and Customs
Treaty- an international agreement concluded between states in written form. Eg. I.C.C.P.R.
(international covenant on civil and political rights) and I.C.E.S.C.R. (international covenant
on economic, social and cultural rights)

lOMoARcPSD|34683058
Custom- is made up of two elements state practice and Opinio juris (Latin). State practiced
activities done by officials of the state in an official context. Eg. Policy statements,
diplomatic correspondents.
Opinio juris is the psychological belief that this practice is required by law.
N.B. A treaty will not automatically take effect in the Jamaican context, it first would have to
be incorporated into our domestic law before we can enjoy the benefits of the treaty. This
means new legislations or amending existing legislations.
The hierarchy of Courts
5 P.C. Privy Council For Belize, Dominica, Barbados and Guyana it is the C.C.J.
4 Court of Appeal
3 Supreme Court
2 Parish Court (formally known as the Resident Magistrate’s Court)
1 Petty Sessions Court
On looking at the hierarchal structure you should note the following:

1. Types of matters heard in each court
2. Who hears the matters
3. Who participates in the trial
4. What is the likely outcome of the trial eg. Fine or imprisonment
5. To which court can an appeal be made
To examine the hierarchal structure of Jamaica we will begin with the petty sessions court,
which is the lowest court in the structure.
Petty sessions
The jurisdiction of the petty sessions court is governed by the justice of the peace jurisdiction
act. The matters are usually heard by a minimum of two justices of the peace, who will sit
together. The parish judge can sit in alone but can also accompany the J.P.’s.
NB Parish judges can sit in on a petty session trials at any time. A parish judge is equivalent
to two J.P.’s.
The prosecutor (person laying charges) is usually a police officer or a deputy clerk or even a
private individual.

lOMoARcPSD|34683058
NB In civil cases individuals may represent themselves or they may have attorneys.
Offences seen in Petty Sessions

▪ Disorderly conduct in public places
▪ Using indecent language
▪ Stone throwing
▪ Resisting arrest and assaulting a police officer
▪ Application for spirit license
Appeals from the petty sessions court are usually made to the Supreme Court. The appeal
goes to the Supreme Court because the parish judge sits in petty sessions sometimes and was
probably the one to give the result that’s being appealed so it wouldn’t make any sense to
make an appeal to the same judge.
The maximum fine in the petty sessions court is $2000, imprisonment is usually 30 days,
however, it is 3months in certain matters.
Look at section 5a of the justice of the peace jurisdiction to see what matters carry
3month sentences.
Parish Court
This court is a court of first instance, this is where the matter begins. It is also called a
creature of statute, that is it only has powers given by legislation.
There is a parish court in each parish except Kingston & St. Andrew that has 4. The parish
judge can only trial matters within that parish or up to a one-mile limit outside of the parish
or if the defendant (person before the court) lives in the parish or operates a business within
the parish.
The prosecutor in criminal matters is usually a clerk or court or a representative from the
office of the Director of public prosecutions (D.P.P.). In civil cases, they are usually done by
lawyers representing both parties.
In its civil jurisdiction, civil matters include:

▪ Recovery of possessions
▪ Recovery of rent
▪ Granting of probate or letters of administration

lOMoARcPSD|34683058
In ordinary civil matters, the court has jurisdiction up to $1 million, in certain property
matters they have jurisdiction up to $2 million and for probates they have jurisdiction for up
to $3 million.
NB Probate is issued when a will has been proven real.

The types of criminal matters seen in the parish court include:
▪ Malicious injury to property
▪ Larceny
▪ Offenses against a person eg. Assault
The parish court has no power to hold a trial for certain criminal matters such as:
Murder and Rape
Instead they will hold a committal proceeding to determine whether there is sufficient
evidence for the matter to be sent up to the supreme court.
Fines can go up to $1 million and imprisonment a maximum of 5 years except where
legislation states otherwise.
NB Appeals form the parish court will go to the Court of Appeal.
Various divisions are in the parish court:
Family Court
Juvenile Court
Traffic Court etc, (look up the rest)
Supreme Court
This is also a court of first instance and a superior court of record. They have unlimited
jurisdiction in civil and criminal matters. This means that the court has unlimited jurisdiction
on the sum it can a lot in civil matters and unlimited fine and sentences it can impose in
criminal matters except where legislation imposes limitation.
The head of the supreme court and the rest of the judiciary is called the chief justice.
The supreme court has a senior puisne judge and many puisne judges. Civil matters are
usually heard by a single judge except in constitutional matters which are heard by three
judges.
Criminal matters are heard by judge and jury. In the case of capital murder, the judge will sit
with a jury of 12 in other matters 7.

lOMoARcPSD|34683058
NB The judge advises on the law and the jury decides on the facts.
Examples of criminal matters seen:
Murder, Rape, Manslaughter
Civil matters include:
Divorce Petitions, Personal injury matters, Probate matters over a certain limit ($3
Million) etc.
Appeals from the supreme court will go to the court of appeal.
Supreme court moves in circuit to hear matters at different parishes. The home circuit is in
Kingston. The circuit court held in a parish is named after the parish.
Court of Appeal
This hears appeals from the parish and supreme court.
The president is the head of the court of appeal, usually an appeal is heard by a panel of 3
judges, there is no jury in this court. This court deals with both civil and criminal appeals.
This court will examine the issue of law which arose in the lower courts. The court of appeal
will consider if the judge in a lower court properly guided the jury with the laws of
identification.
The court of appeal may agree with the trial court or the court may disagree with the trial
court and return the matter for retrial or disagree and substitute their own decisions.
Appeals go from the Court of Appeal to the privy council court in the case of the previously
listed countries those appeals would go to the Caribbean Court of Justice located in Trinidad
and Tobago.
Judges within the region are used in the C.C.J.

lOMoARcPSD|34683058
Jamaican’s judicial system has a five-tier court structure and has a hierarchical function to its operation.
In ascending order, the courts are:
Petty Sessions
Parish Court/ The Resident Magistrate’s
The Supreme Court
The Court of Appeal
The Privy Council
Not all Caribbean Countries have this Court Structure, e.g Barbados and Trinidad don’t have Petty
Sessions. In addition to this, Barbados, Belize, Guyana, and Dominnica utilize the Caribbean Court of
Justice (CCJ) as their final court of appeal.
Petty Sessions Court

The Petty Sessions is the lowest court in the judicial system of Jamaica and it holds limited jurisdiction.
Cases are heard by Justices of the Peace (2-3) and it requires a minimum of 2 JPs to be properly
constituted. Important to note is that the Parish Court Judge can preside over matters in the Petty
Sessions. Where the functionality of the court is concerned, it has the ability to conduct sessions
pertaining to several things such as: threatening to kill, application for liquor license, resisting arrest,
minor/petty theft and disrupting public order.
Criminal cases are prosecuted by a Deputy Clerk of Court or in some instances, a police officer. Whereas
in civil cases parties can elect to represent themselves or utilize an attorney. In criminal matters, the
court has the jurisdiction to fine up to $2000.00 or a sentence period not exceeding three months.
In civil matters brought before the court, the claim cannot exceed $10,000.00. Dissatisfied parties hold
the right to appeal to the Supreme Court.
N.b Fines are in public law, issued by the state; claims occur in civil law—disputes between individuals.
Parish The second court in the hierarchy is the Resident Magistrate’s Court, officially renamed “The Parish
Court
Court” in 2015. In addition to this name change, judicial officers of these courts will no longer be
referred to as Resident Magistrates, but as judges of the Parish Court. The main criteria needed to
become a Parish Court Judge is a minimum of 5 years at the bar—i.e a practicing attorney for at least 5
years.
Parish courts are located in every parish, usually in the capital of that parish. However, unlike other
parishes, Kingston and St Andrew has four. Family, Drug, Traffic and Criminal. The parish court is a
creature of statute, which means that the court has a limited jurisdiction in the parish in which it is
located and one mile beyond its boundary line. The parish court has the ability to hear both criminal and
civil matters but it is limited to the matters it can hear. The cases that can be dealt with at this level
include: recovery of rent or possessions, actions for negligence, and breach of contract. Other
there exists a family court, drug court, traffic court and criminal court
within the parish court

lOMoARcPSD|34683058
cases/matters that are dealt with at the Parish Court are easily identifiable based on the divisions of the
Parish Court.
These include: Traffic Court, Gun Court, Coroner’s Court, Drug Court, Night Court, Tax Court, Family
Court, Juvenile Court, Small Claims Court.
The limitation of the parish Court is also visible in the fact that the court cannot hear matters pertaining
to rape, murder and manslaughter. However in such cases, committal proceedings are done. to
determine prima face (these determine if the court is sufficient to hold the trials). At this level,
Prosecution is conducted by a Clerk of Court. Or a representative from the Officer of the Director of
Public Prosecutions. The Parish Court has the jurisdiction to impose fines of up to $1,000,000.00 (1
million dollars) or a custodial sentence not exceeding 5 years. (In Jamaica, usually only forgery goes up
to 5 years—the other crimes are kept at 3)
In civil matters, the maximum claim is $1,000,000.00 (1 million) however in Real Estate matters, it can go
up to $3,000,000.00 (3 million). Appeals from the Parish Court are made to the Court of Appeal.
Supreme Court:
As the third tier in the hierarchy, is the Supreme Court which is also referred to as the high court. The
Supreme Court is a trial court of first instance and it is a superior court of record. Matters are heard by a
judge and jury (Criminal cases), judge alone (Civil cases), and three judges (Constitutional cases). In
those cases, the judge does not find someone innocent/guilty. Only in the Petty Sessions/Parish Court
do we have judges deciding guilt.
The head of the Supreme Court and the entire judiciary is the Chief Justice (Brian Sykes in Jamaica). The
Chief Justice is assisted by other judges of the supreme court called puisne (pronounced puny) judges.
And to be a Supreme Court Judge, one must have at least ten years legal experience.
Nb: The Chief Justice is appointed by the Governor General on recommendation from the Prime
Minister after consultation with the leader of opposition.
Puisne judges (24) are appointed by the Governor General on recommendation from the judicial
services commission.
N.b: The same holds for the senior Puisne Judge.
Criminal matters are prosecuted by council (lawyers) from the Office of the DPP (Director of Public
Prosecutions) and in civil cases, parties are represented by their respective attorneys. The criminal
functioning of the court is referred to as the circuit court which is convened periodically in each parish to
hear matters arising from that parish. When this takes place, the title given to the court is from the
parish in which it is sitting. E.g, The St Catherine Circuit Court. This does not hold true for Kingston and St
Andrew as the circuit court in this parish is known as the Home Circuit Court. There are four divisions of
the Supreme Court:
1. The Revenue Court est. 1971 (Taxes)

2. Gun Court est. 1974

lOMoARcPSD|34683058
3. Western Regional Gun Court early 2000s.

4. Commercial Court which began operations in February of 2001. (Business related matters
e.g Corporate)
Appeals from the Supreme Court are made to the Court of Appeal.
Court of Appeal
Like the Supreme Court, the Court of Appeal is also a court of record. This court is headed by a President
who is appointed in the same manner as the Chief Justice. The court of appeal is staffed by the President
and Judges of Appeal who are appointed by the Governor General on recommendation from the Judicial
Services Commission. The Court’s Jurisdiction, extends to hearing both criminal and civil cases from the
Parish Court and Supreme Court. Nb: At minimum, three judges sit to hear an appeal.
Upon hearing appeals, the court of appeal in issuing a ruling can do one of three things:
(1) Agree with the ruling from the inferior court.

(2) Disagree with the ruling from the inferior court and substitute its own.
(3) Disagree with the ruling and send the matter for retrial.
Appeals from the Court of Appeal are made to the Privy Council.
Privy Council
The Judicial Committee of the Privy Council (JCPC) or simply ‘The Privy Council’ is the final court of
appeal in the Jamaican Judicial System. The Privy Council is the highest appeal court for all
Commonwealth Caribbean Countries except Belize, Guyana, Barbados and Dominica (which utilize the
Caribbean Court of Justice) . 5 Judges normally sit to hear an appeal, however this number can increase
to 7 or 9. The Privy Council hears appeals on every matter except election disputes unless such disputes
are grounded in Constitutional interpretation. The Privy Council is never a court of first instance
meaning that cases cannot be brought directly to the Privy Council. In issuing a ruling, the Privy Council
has no limit on its jurisdiction meaning that there is no upper limit on the monetary value of cases or
fines and sentence periods. Nb: ROYN—Read Over Your Notes.

lOMoARcPSD|34683058
Gun court, Commercial court, Drug court and tax court fall under the parish court.
Privy Council
This if the highest court for Jamaica and is in the U.K.
Five judges will sit to hear a matter but depending on the technicality of the case more judges
could make up the panel.eg Lambert Watson case a death penalty case had more than 5
judges, appealed from Jamaica to the P.C.
No jury present at the P.C. the cases that are usually heard are large commercial cases and
death penalty cases.
The refer to the judges of the P.C. as Law Lords.
There are no appeals to the P.C. in matters of electoral disputes UNLESS the matter includes
constitutional interpretations.
P.C. has the right to reverse and overrule its own decisions
In Jamaica section 10 in the constitution governs the jurisdiction of the P.C. and speaks to
appeals as a right eg. Proceedings for dissolution of marriage, deals with appeals by leave
(goes to the court of appeal to get their leave, and deals with appeals by special leave. Her
majesty has the right to grant special leave.)
Caribbean Court of Justice vs The Privy Council
CCJ
Locate in T&T, established in February 2001 by the agreement that established the C.C.J.
(visit online to see agreement)
It was inaugurated in 2005, it is an itinerant court which means the court can travel to hear
cases within the territories. It has sat in Jamaica before, the Shanique Marie (Myre) case in
2012, case affected the free movement of people in CARICOM.
The court has 7 judges including the president. Had a female judge from Guyana, a judge
from Trinidad, St. Vincent & the Grenadines, Jamaica, two from outside CARICOM, 1 from
the U.K., 1 from the Netherlands. This shows up that the judges used in cases span the region
and more.
Aim of the CCJ
● Foster the development of juris prudence (developing body of case law with region)
● Fostering the process of integration
● Help to develop own legal identity
N.B. the CCJ has dual jurisdiction, it has an appellate jurisdiction and an original jurisdiction.
Four countries are a part of the Appellate and all other countries are a part of the original.

lOMoARcPSD|34683058
Original= P.C.
Appellate= CCJ
Under the Appellate Jurisdiction the CCJ will hear appeals from local courts within
CARICOM in civil and criminal matters.
The Original jurisdiction will deal with interpretation and application of the treaty
establishing CARICOM which is the treaty of Chaguaramas. Deals with trade issues eg
Trinidad cement Ltd and Guyana (view other issues online) and rules of free movement of
nationals within CARICOM.
Arguments concerning abolition and refraction of appeals to the P.C./ the CCJ P.C.
debate
Sovereignty Argument
It is argued that independent countries should no longer refer their legal matters to a court
outside of the jurisdiction that consists of British judges. (Against PC)
We should be able to make our own laws and interpret without reference to foreigners, we
should therefore break the psychological dependence on the “mother country” ( For CCJ)
Location of the P.C. Argument
The distance of the P.C. is an issue also judges are far removed from our culture and this
could affect the validity of their decisions. Lord Hoffman British Judge in 2003 was giving a
speech saying that “Although the P.C. had done its best to serve the Caribbean, our
remoteness from the Caribbean community has been a handicap because of that they were
cautious in doing anything that might seem inappropriate to our local conditions.” (Against
P.C. For CCJ)
Advantage of the distance is less likely to have biased views (Against CCJ)
N.B.If a judge knows anyone participating in a case from either side he/she must give the
case up to another judge.
Visa requirements
To appear before our final appellate court a visa is required and there is no guarantee that you
will get the visa (Against P.C.)
CCJ will travel through the region to hear cases (For CCJ)
Access & Cost
Better access to the CCJ for the P.C. in relation to civil matters only the wealthy can take
their matters there eg. large companies. Criminal matters are largely death penalty cases that
are heard because they usually have the support of human rights (international agencies). (For CCJ)
Although the P.C. is free to litigants (person who is appealing to the P.C.) making an
appearance before the P.C. will acquire costs such as: Air fare, living expenses. Hotel etc. it

lOMoARcPSD|34683058
is said that only 10 cases per annum make it to the P.C. from Jamaica and 2 cases per annum
for the other countries. (Against PC)
Quality of Judges
Some argue that the local judges will not be able to produce the quality of judgements handed
down by the P.C., the P.C. has a very good track record and has been active for many years as
well. Their judgements will be more objective and impartial, P.C. is human rights oriented
and that is reflected in their judgements. Foreign investors trust the P.C. and a good judiciary
will promote foreign direct investment (For P.C.)
CCJ is needed for Caribbean integration because we need uniformed laws and judgements.
Many critics argue about the poor state of our conditions, dilapidated buildings, backlog of
cases and poor infrastructure. Improvements should be made in those courts before we think
of leaving the P.C. (For CCJ)
The argument on the issues of the referendum
Some argue in the democratic society that the P.C. should no longer be our final court of
appeal, since we have a right to appeal to the P.C. it shouldn’t be abolished without a
referendum that will indicate the will of the people.
Referendums are too costly, individuals may vote along political lines.
A referendum is not required by section 110 of the constitution, the P.C. can be removed by a
simple majority votes in both houses of parliament.
Some eastern Caribbean countries are expressly required to have referenda
A constitution was held in St. Vincent and the Grenadines November 2009, one aim was to
replace the P.C. with the CCJ. The referendum didn’t have the majority vote so they were not
able to replace the P.C. with the CCJ.
In Jamaica one party feels that there should be a referendum JLP and PNP thinks its not
necessary.
See page 44 of agreements and facts by pro vacianie (check for correct spelling)
In the CCJ the PC didn’t state that a referendum was required to replace the PC with the CCJ
the matter was left open by the PC but their reasoning implies that the CCJ could be
established by 2/3 majority vote.
Funding of the CCJ
Caribbean countries could not afford their own court, through the Caribbean Development
Bank, participating states raised the sum of $100 million US and the funds were placed in the
CCJ trust fund is administered by a independent board of trustees. Annual cost of the CCJ
should be funded by the interest from the $100 million and states are legally obliged to pay
their started portion of the $100 million US.

lOMoARcPSD|34683058
We are paying for the CCJ but we are not using it. How much are we paying?

lOMoARcPSD|34683058
Caribbean Court of Justice (CCJ)

--located in Trinidad and Tobago; functions as an appellate court, yet is used only by four Caribbean
countries not including T&T
● Caribbean Court of Justice (CCJ) is located in Trinidad & Tobago.

● Established in February, 2001 by “The Agreement Establishing the CCJ” (visit CCJ website)
● Had its inauguration (opening ceremony) in Trinidad in 2005.
● Can travel to hear cases (an itinerant court); can sit in the territory of any contracting party
● In 2012, CCJ sat in Barbados and Jamaica for the case of Shanique Myrie. There was a cavity
(body) search by officials in Barbados, and she alleged she was ‘finger-raped’ and left overnight.
She sued, the matter went to the CCJ, and she was given compensation. Case involved the free
movement of persons within CARICOM. (read up on it, on CCJ website)
● CCJ has 7 judges (inc. President). Recently got a new President, Justice Adrian Saunders (from
SVG). 2 judges are from Trinidad, one judge is Jamaican—Winston Anderson.
● CCJ will foster development of Caribbean jurisprudence (philosophy of law)—i.e. it handles
judgments relevant to our region—and will lead to greater integration (hopefully).
The CCJ has two (dual) jurisdictions—an appellate, and an original jurisdiction.
Under the appellate jurisdiction, the CCJ will hear appeals from local courts within CARICOM; both civil
and criminal cases. Only so countries so far have joined the appellate jurisdiction—Barbados,
Guyana, Belize & Dominica. Under the original jurisdiction of the court, it will deal with cases
involving the interpretation and application of The Revised Treaty of Chaguaramas (which
establishes CARICOM).
The court under this jurisdiction will deal with trade issues, and the rules of free movment within
CARICOM. N.b: The Shanique Myrie case was held under the original jurisdiction. Once the
CARICOM treaty is signed, a country automatically becomes a part of the original jurisdiction.
The appellate jurisdiction however is something each country must decide.
Arguments In The Privy Council vs. CCJ Debate

Privy Council—located in the UK. Final court of appeal for most former British colonies. Usually has 5 judges; technical cases
may go up to 9 judges.
Arguments Concerning Abolishing & Retaining Appeals to the Judicial Committee of the Privy Council
(JCPC)
N.b any arguments against the JCPC, are naturally for the CCJ. And vice versa. Any question skewed
towards one particular court, must include mention of the other court to be critical.
Sovereignty
Argument: Independent countries should no longer refer legal matters to an outside court consisting of
largely British judges. We should be able to make and interpret our own laws without reference

lOMoARcPSD|34683058
to foreigners. We must break the psychological dependence, remove the remnants of British
colonialism, and some writers say we must cut the umbilical cord and cut the apron strings.
Some say, by virtue of being sovereign, we can also choose to stay with the Privy Council.
Location of the Privy Council & the Issue of Bias

Argument: The location/distance of the Privy Council has been an issue. The
judges are far removed from the local situation and the culture and this may affect the
validity of their decisions. Lord Hoffman, a privy council judge, giving a speech (in T&T)
in 2003 noted that although the Privy Council had done its best to serve the Caribbean,
our remoteness from the Caribbean Community has been a handicap. He said they were
cautious in doing anything that might seem inappropriate in local conditions and being
cautious could be an inhibiting factor.
An advantage of the distance is that there is less likelihood of bias (it is hardly likely that any British
judge would know the party in question).
On the other hand, the matter of bias could be used against the CCJ (not being proven, just
argued), as some hold the view that such a court could be subjected to political influences.
Visa Requirements
In order to appear before our final appellate court, a visa is required (can’t go to England w/o going
to the High Commission) and there is no guarantee that it will be granted. Arg/Fac inc. Mr
Grant—fired as teacher, wanted to go to Privy Council, was denied visa.
Access and Cost

Argument: There will be greater access to the CCJ than to the privy council as the CCJ is an itinerant court that travels
within the region (as it did in the Shanique Myrie case). In relation to civil matters, it is said that only the wealthy
can take matters to the Privy Council (large companies e.g). In criminal matters, it is largely death penalty cases,
and those matters are usually supported by International Human Rights Agencies.
*one writer said only the wealthy (large companies) and the wicked (sentenced to death penalty) can make it there.
Although the Privy Council is free to litigants (persons a part of a lawsuit), appearance before the Privy
Council will involve costs such as air fare, hotel, and other living expenses.
According to Vasciannie (2015), in Jamaica in some years there have been more than 300 cases before the
court of appeal but no more than 10 of these proceed to the Privy Council.
Also, if the Privy Council were to visit Jamaica, the country would have to pay for their stay, while
when the CCJ visited, it took care of all its own expenses.
Quality of judges
Argument: Some speculate that our judges will not be able to produce the quality of judgments handed
down by the Privy Council. The Privy Council has a good track record and has been in existence for years. The
judgments from the Privy Council will be more objective and impartial. Some note the fact that the PC is human
rights-oriented. And this will be reflected in their judgments. It is believed that foreign investors trust the PC. E.g
if they were to have a civil matter locally, they have the comfort of knowing that the case could be taken to the
PC.
Condition of Our Local Justice System

lOMoARcPSD|34683058
Many persons argue about the poor state of the local court. E.g Backlog of cases and poor infrastructure.
And so improvements should be made before we leave the Privy Council (made prior to the setting up of the
CCJ).
Issue of a Referendum (pl. referenda)

Some argue that in a democratic society, there should be a referendum (putting the matter to a public vote)
on whether the Privy Council should no longer be the final appellate court.
Arguments against a referendum:
● it would be costly
● individuals may vote along political lines,
● A referendum is not required by section 110 of the Jamaican Constitution which grants the right of appeal to the privy
council. And the Privy Council can be removed by a simple majority vote in both houses of parliament.
N.b In some Eastern Caribbean Countries, they are expressly required to have referenda by their constitutions. A constitutional
referendum was held in SVG in Nov, 2009. One aim, inter alia, was for the Privy Council in London to be replaced by
the CCJ. With the voting results, the referendum did not have the two-thirds majority support that was required by
their constitution.
Funding of the CCJ

Before the CCJ was established, the argument was that Caribbean Countries could not afford their own court (in other words, stay with the PC).
Note however that through the CDB (Caribbean Development Bank), participating states raised the sum of US $100,000,000. These
funds were placed in the CCJ trust fund which is administered by an independent board of trustees. Now the annual costs of the
court are to be funded by the interest accruing to the trust fund. Each country will repay a stated portion of the $100,000,000 USD.
Trinidad and Tobago will contribute 29.73% of this amount. Jamaica will contribute 27.09% . Barbados 12.77%. Antigua and Barbuda
2.11%. Some fear that there is a risk that the funds could be depleted and if that happens, we may have to recontribute to the funds
(view of Prof. Oswald Harding, Sunday Gleaner, Oct 7, 2012).
Next week
Political and Constitutional Issues
The CCJ case
Charter of Fundamental Rights and Freedoms
Abortion
N.B Need to get more jurisprudence here in the Caribbean.

lOMoARcPSD|34683058
Law and Gov

4/10/17
Some % some countries pay of the U.S $100 million
Barbados 12.77%
Antigua and Barbuda 2.11%
Jamaica 27.09%
St. Kitts 2.11%
T&T 29.73%
Political and constitutional issues

Some eastern Caribbean countries are expected to have referenda. In in the case of T&T’s
constitutional arrangement would require some degree of support from both political parties.
In JA there are also political and constitutional issues relevant to the debate.
Read the CCJ case of 2005 on the course outline
JA had passed 3 bills, the idea behind them was to replace the PC with the CCJ. However, it
was argued that they did not use the correct procedure and it went to the PC and was thrown
out.
______________ (didn’t hear the name of this court) and the Court of Appeal were
entrenched in the constitution and would need 2/3 majority votes to change them. The CCJ
would not have the same level of protection as the courts below it because it isn’t entrenched.
Paragraph 21 in the Judgement the procedure appropriate for an entrenched provision should
have been followed, the Acts/Legislation were not passed in accordance with the procedure
required by the constitution the PC said they were void.
See the Observer Nov 19, 2015 for the matter
Senate has 21 members 13 on the side of government and 8 on the side of the opposition
Further comments from British Judge on the PC CCJ debate.

lOMoARcPSD|34683058
Lord Nicholas Phillips in 2009 noted that the law lords of the PC were spending a
disproportionate amount of time on cases coming mostly from the Caribbean. In an ideal
world, the commonwealth countries including those of the Caribbean should set up their own
final courts of appeal rather than using the PC. (for CCJ)
These comments were interpreted as an invitation to leave the PC. However, the formal
position of the PC is that we can stay indefinitely.
Provisions for safe guarding the independents of the CCJ judges
● Independence appointment process and the president is appointed by the heads of

government of participating states, while the other judges are appointed by the
regional, judicial and legal services commission (RJLSC)
● Security of tenure- judges hold office till ages 72 and this can be extended till 75 in
special circumstances.
● An office of a judge cannot be abolished while there is a judge holding that office.
● Remuneration- they are paid from the trust fund so the court will not be directly
dependent on government.
● The salaries of judges and conditions of services cannot be varied to their
disadvantage while they are in office.
● Dismal/Termination – the judges of the CCJ can only be dismissed by the
recommendation of the commission
● The judge may be removed for inability to perform his/her job due to illness or
misbehaviour.
All these provisions are designed to insulate the judges from political manipulation.
Privileges and immunities

The CCJ judges will enjoy certain privileges and immunities to protect their independences
eg. They are immune from legal processes (can’t sue them) in respect to words spoken or
written or acts done in their official capacity.
Code of judicial conduct for CCJ judges
● The judges should not be members of political parties

● They should refrain from attending political gathers
● They should not accept gifts that have any connection to the performance of their
judicial duties

lOMoARcPSD|34683058
● Judges shall carry out his/her duties free of any outside influences and pressures
Abortion
The termination of a pregnancy that is purposely done and the foetus is removed before it is
visible and this results in the death of a foetus.
Abortion and International Law
THE ICCPR
Article 6 of the ICCPR speaks to the right to life, however it is silent on the issue of when life
begins.
Article 6 Inter ALLA every human being has the inherent tight to life. This right shall be
protected by law, no one shall be arbitrarily deprived of his life.
At the time, the ICCPR was being drafted suggestions were made that words should be
included to indicate that life would be protected from the moment of conception that
suggestion was rejected. Because it was difficult to determine the moment of conception.
In the American Convention on Human Rights the approach was different. Article 4
paragraph 1 states that every person has the right to have his life respected this right shall be
protected by law and in general from the moment of conception. No one should be arbitrarily
deprived of his life.
So, it appears that this provision restricts abortion, however note the BABY BOY case human
rights law journal volume 2 of 1981 it came from out of America. Inter-American
commission of human rights addresses in the BABY BOY case.
That case was scrutinized and the commissioners took the view that the case did not prohibit
abortion in all cases. It was noted that the phrase “in general” could possibly allow for
abortion in the case of rape or to save the mother’s life.
According to Professor Vacciani we are not sure what are the other exceptions or limits if
any, he argued that international law has left us with some uncertainty on the subject matter
of abortion because this ruling in the BABY BOY case suggested that the right to life does
not always being at the moment of conception.
Abortion & domestic law (local legislation) with specific reference to JA
The Constitution
Note section 13 (3a) charter of fundamental rights and freedom 2011. Speaks to the right to
life, liberty and security of the person.

lOMoARcPSD|34683058
JA amended their constitution in 2011 and did away with chapter 3 and put a new one.
READ THE CHATER
The important question is whether or not this right to life provision is guaranteed to the
unborn child?
Note that for the very first time in 2011 our constitutional provisions make reference to the
life of the unborn.
Section 13 paragraph 12 of the charter states that laws relating to offences regarding the life
of the unborn shall not be held inconsistent with our contravention of the provisions of this
charter
We have laws in Jamaica that speaks about abortion they are found in section 72 of the
charter.

lOMoARcPSD|34683058
Week 5: Political & Constitutional Issues in the Debate. Oct 3rd, 2018
(Privy Council vs CCJ as final court of appeal)
Some Eastern Caribbean Countries are expressly required by their Constitution to have referenda
(plural of referendum). Note the example of St Vincent and the Grenadines (SVG). They had a
referendum in 2009 but did not get that two-thirds majority.
In Jamaica, there are relevant political and constitutional issues. One political party (The
Jamaica Labour Party or JLP) led by Edward Seaga at the time, appears to hold the view that the
Privy Council is a good source of justice and has argued that a referendum should be held so that
the people can decide. The other party (The People’s National Party—PNP—under P.J
Patterson) is of the view that a referendum is not required under the constitution.
Another issue for the Jamaica is the CCJ case of 2005. Note that the Independent Jamaica
Council is diametrically opposed in their views on a referendum. In 2005, Jamaica wanted to
replace the Privy Council with the CCJ. Now three (3) pieces of legislation were passed by
parliament by way of the procedure for ordinary legislation (which is by simple majority—50%
+1 more). The issue was whether Jamaica utilized the correct procedure according to the
constitution.
The main implications from the ruling of the Privy Council is that change to the CCJ could be
established by a two-thirds vote of both houses of parliament. At page 51 of the judgement, the
Privy Council noted that the procedure appropriate for the amendment of an entrenched
provision should have been followed. According to Prof. Vasciannie, (Arguments & Facts, page
44) the Privy Council did not suggest a referendum was required. This matter was left open. On
page 59 of the same book he writes “A referendum could be an alternative, but it may be difficult
to justify this as a constitutional requirement”.
In 2015, the 3 pieces of legislation were passed in the Lower House who got the required
two-thirds vote. However, the final vote in the senate was postponed so that a committee from
both parties could review the issue.
Lord Phillips in 2009 noted that the ‘Law Lords’ at the Privy Council were spending a
disproportionate amount of time on cases coming mostly from the Caribbean. He further said,
“In an ideal world, Common Wealth Countries including the Caribbean should set up their won
final courts of appeal, rather than using the Privy Council” The comments were interpreted by
many as an invitation to leave. A part of the debate is that we have been indirectly asked to
leave. However, the formal position of the Privy Council is that we can stay indefinitely.
Provisions for Safeguarding the Independence of the CCJ judges

lOMoARcPSD|34683058
One argument was the fear that the CCJ would be open to political influence, however note the
following provisions safeguarding the independence of the judges.
(1) There is an independent appointment process.

*A special commission was set up that will have the responsibility for appointing the judges, i.e.
the Regional, Judicial and Legal Services Commission;
* the commission does not have any political representatives.
*The judges will also be removed by a majority vote of the commission (with the exception of
the President of course).
*The appointment is such that the judges will be insulated from Politics.
(2) Security of Tenure: The judges hold office up to the age of 72 years and may continue
up to age 75 in special circumstances. The office of a judge shall not be abolished while
there is a substantive holder of that office (his post cannot be made redundant; can’t be
arbitrarily fired).
(3) Dismissal: The judges can only be dismissed on the recommendation of the
Commission, acting on the advice of a tribunal. And in the case of the President, he shall
be removed by the heads of government acting on the recommendation of the
Commission that will in turn be acting on the advice of the tribunal.
The judges may be removed from office only for the inability to perform the function of the
office arising from illness or misbehavior. Note that the appointment and dismissal is
designed to insulate the judges from political manipulation.
(4) Remuneration: Judges will enjoy certain privileges and immunities in order to
further protect their independence. For example, the judges have immunity from
personal arrest or detention for acts one in their official capacity. They are immune
from legal process for words spoken or written in their official capacity.
There is a code of judicial conduct that states that judges shall not be members of Political
Parties and shall refrain from political gatherings. They should perform their duties
without bias or prejudice. A judge should not accept gifts that have any
bearing/connection to the performance of their judicial duties. Finally, they are
accountable for their conduct to an institution set up to implement the code of conduct.
Next week: Abortion and the Right to Life. Read up on the Charter of Fundamental Rights and
Freedoms (2011). It is on OurVLE. It replaces the older chapter 3 in the constitution.
The Charter includes the right to
● Life
● Liberty
● Religious Freedom
● Vote
● Freedom of Expression (speech)

lOMoARcPSD|34683058
● Freedom of Assembly
● Freedom of movement
● Equality (freedom from gender discrimination)
● Privacy
● A healthy environment
● A Passport (there are exceptions)
● Not be tortured; subjected to cruel/inhumane treatment
● Protection of the life of the unborn
● Due Process
● Education up to the primary level

lOMoARcPSD|34683058
LEC 11/10/17
Notes continued
Legislation in JA
Article= treaty
Section= legislation
Section 72 and 73 offenses against the person act OAPA
72 in summary
Every woman being with child who unlawfully administers any poison or noxious thing to
herself or unlawfully uses any instrument with the intent to cause her own miscarriage shall
be liable to imprisonment for life. The same applies to any other person who carries out those
same acts on the woman. By virtue of section 44 of the interpretation act, this would be the
maximum sentence and a judge could use his/her discretion to give a lower sentence.
OAPA - Offences Against the Person Act

73 of the OAPA
Any person who unlawfully supplies any poison or any instrument knowing that it is intended
to be unlawfully used to cause a miscarriage of any woman, such person is liable to up to 3
years in jail.
Both sections appear to be absolute, however both sections use the term unlawfully and it is
argued that the emphasis on the word unlawfully could mean there are lawful ways to
carrying out an abortion.
Common Law/Case Law

R v. Bourne 1939. An English case that considered similar provisions to the Jamaican OAPA.
The judge found that the law did not prohibit abortion in all circumstances as there were
unlawful and lawful ways to carry out an abortion. The case before him was a case of lawful
abortion. This case involved a 15-year-old girl that had been raped, Dr. Bourne took no
payment, he did it as an act of charity and he genuinely believed he was doing the right thing
to preserve the mental health of the girl. The judge also felt that abortions were lawful if done
to preserve the life of the mother. Bourne’s case has been criticized, it was a first instance
court and not an appellate court. The case turned on its own exception facts and it is also no
clear who can perform these “lawful” abortions and up to what stage of pregnancy it can be
performed.

lOMoARcPSD|34683058
R v. Newton Stungo 1958. That case noted that a miscarriage can occur to preserve the life
and health of the mother. Bourne’s case was later criticized by Lord Diplock in 1981 who
said that the case left plenty of loose ends and ample scope for clarification.
Patron v. British Pregnancy Advisory Services 1978. The father claimed to have a say in the
abortion but the father’s case was defeated.
NB. 1975 ministerial policy guidelines that stated that abortions could be carried out in
certain cases such as:
When the foetus is abnormal
Cases of rape
Consideration to the health of the mother
This however is not the law
Reform process in JA, note that an abortion policy review group considered the issue of
abortion in 2008 in Jamaica and they prepared a report on the subject matter which can be
found online. The group recommended that the relevant sections of the OAPA (72&73) be
repealed and a termination of pregnancy act be passed and that act would allow for abortion
in certain circumstances. (see report online)
Approach to the question of Abortion in different countries

USA Roe v. Wade 1973. The right to abortion is based largely on the privacy rights of the
mother, however, the mother’s privacy right is balanced against the right of the state in the
welfare of the foetus. In the first trimester abortion is generally available if done by a licensed
physician. The 2nd trimester the state may intervene to regulate the health of the mother and in
the 3rd trimester abortion is prohibited unless necessary to preserve the life or health of the
mother.
NB As the baby grows the interest of the state also grows
Barbados there is a medical termination of pregnancy act 1983. Time periods within which
specific procedures will apply Eg1. If prior to the 12th week of pregnancy medical
practitioners if of the good faith opinion, that the continuance of the pregnancy would involve
a risk to the mother’s life or cause great injury to her physical or mental health then an
abortion maybe carried out. Eg2. If the pregnancy was the result of rape or incest, if the child

lOMoARcPSD|34683058
would suffer from physical or mental abnormality, and they will also consider
socio-economic matters.
Guyana 1995 medical termination act of Guyana, between 8-16 weeks of pregnancy there
can be an abortion but only in an approved institution, other instances in which an abortion
can be carried out:
● Risk to the life of the mother
● Risk to her physical and mental health
● Substantial risk that the child would be born with physical or mental abnormalities so
as to be seriously handicapped
● If the mother is of unsound mind and incapable of taking care of an infant
● Where the woman reasonably believes that the pregnancy was caused by an act of
rape or incest but she has to submit a statement to that effect
● Where the pregnant woman is known to be HIV positive
● Where the pregnancy results in spite of use in good faith of a recognised contraceptive
method by the pregnant woman or her partner.
NB In Guyana the medical practitioner may encourage the patient to inform her
partner but the doctor is not required to obtain the partner’s consent or to notify him.
St. Lucia 2004 they modified their criminal code to allow abortion to also protect the
woman’s physical and mental health in cases of rape and incest but in this instance the
woman must provide a police report to prove her claim
NB See sections 56 and 57 in Trinidad’s OAPA
Arguments for or against abortion

Against/Pro-Life
Contrary to religious principles abortion amounts to a violation of the sanctity of life as the
foetus is a human being. Life beings at conception and the foetus has a right to life.
One should not abort a child because the child is an inconvenience
Health risks are associated with abortion
Put the child up for adoption instead
For Abortion/ Pro-Choice

lOMoARcPSD|34683058
The foetus is not a human being with the right to life

Woman should have the right to choose
Woman has a right to privacy
Mother’s life and health should be protected
Abortion should be done in cases of rape and incest
Many women are dying because of abortions that are done illegally and improperly
Do some research and provide statistics as it relates to abortion

How many women have died from abortions?
Amount of abortions done in a particular county?

lOMoARcPSD|34683058
Abortion (falls under The Right to Life)

International Law, Case Law, Domestic Law…. Different Countries…
Definition: The termination of a pregnancy that is purposefully done and the foetus is removed from
the womb before it is viable.
Abortion and International Law:
The ICCPR (The International Covenant on Civil and Political Rights) speaks to the Right to Life in
article 6 But it is silent on the issue of when life begins. Article 6 states, inter alia, that every human
being has the inherent right to life. That right shall be protected by law. No-one shall be arbitrarily
deprived of his life.
Suggestions were made at the time of this treaty that words should be included to indicate that life
should be protected from the moment of conception. That suggestion was rejected because it was
difficult to determine the moment of conception.
Another approach was taken in the Inter American Convention on Human Rights in article 4
(paragraph 1), which states that every person has the right to have his life respected. This right shall be
protected by law, and in general, from the moment of conception. No one shall be arbitrarily deprived of
his life.
Note however The Baby Boy Case (1981), which was addressed by the Inter-American Convention on
Human Rights. Article 4(1) was under scrutiny. And it was held that it did not prohibit abortion in all
cases. The phrase ‘in general’ was emphasized and it was noted that it could possibly allow for abortion
in cases of rape or to save the mother’s life. According to Vasciannie (2015), we are not sure what the
other exceptions are, if any. It is argued that international law has left us with some uncertainty. And th
ruling suggest that the right to life does not always begin from the moment of conception
Abortion and Domestic Law (with specific reference to Jamaica)

■ See Section 13(3)(a) of the Charter of Fundamental Rights and Freedoms (2011)
Note the Charter of Fundamental Rights and Freedoms (2011) speaks to the right to life, liberty and
security of the person. The important question is whether the right to life provision is also
guaranteed to the unborn child.
Note however section 13 (12) of the Charter which states that laws relating to offences regarding the life
of the unborn shall not be held inconsistent or in contravention with the charter.

lOMoARcPSD|34683058
Fun fact: This is the first time the constitution has spoken about abortion. This is often called a savings
clause protecting the right of the unborn. The relevant provision in domestic law would be sections
72 and 73 of the Offences Against the Person Act (OAPA).
Section 72 says: Every woman being with child who unlawfully administers any poison or noxious
thing to herself or unlawfully uses any instrument with the intent to procure her own miscarriage shall
be liable to be imprisoned for life. And whosoever unlawfully administers any noxious substance to
the woman with the intention to procure her miscarriage shall be liable to the same punishment.
N.b under section 44 of the interpretation act, imprisonment for life would be the maximum sentence and
a judge is liable to use his discretion to give a lower sentence.
Under Section 73 any persons who unlawfully supply any poison or instrument with intent to procure the
miscarriage of any woman, shall be liable to 3 years imprisonment.
**Both sections appear to be absolute and speak to no exceptions. Both sections however repeatedly refer
to unlawful activities. And the emphasis on unlawful activities could mean that there are lawful ways
of carrying out an abortion.
Case Law/Common Law

See the case of R v. Bourne (1939) where R represents Regina (the queen)
R v. Bourne (1939) is an English case that considered similar provisions to Jamaica’s OAPA. The judge
specifically considered the term ‘unlawfully’ and noted that there could be unlawful and lawful forms
of abortion and the case before him was lawful. This was the case of a 15-year old girl who had been
raped, and Dr. Bourne took no payment; it was an act of charity. He genuinely believed he was doing
the right thing and he acted to preserve the life of mother. Now Bourne’s case has been criticized
based on the fact that it is a first instance decision that turned on its exceptional facts. It does not state
who may perform this lawful abortion and at what stage of pregnancy it can be carried out. Bourne’s
case was followed in R v. Newton. Stungo which noted that a miscarriage could be procured to
preserve the life and health of the mother.
Class Question: Should the father have a say where abortion is concerned?
See case on Paton where a father’s claim was defeated.
1975 Ministry of Health Guidelines

These provide that abortions could be carried out in certain circumstances e.g fetal abnormality, cases of
rape, and to protect the health of the mother. This however is not law and cannot overthrow/overturn
the provisions of sections 72 and 73 of the OAPA.
Reform Process in Jamaica

lOMoARcPSD|34683058
Note that an abortion policy review group considered the issue of abortion in Jamaica in 2008. It was
recommended that the relevant sections of the OAPA be repealed (taken out of law) and a termination
of pregnancy act be passed. The group noted that termination of pregnancy would be allowed in
certain circumstances, and pre as well as post-abortion counselling would be recommended.
(read more online) However in June 2018, Parliament was asked to consider the recommendations of the
abortion policy group. Currently a joint select committee of Parliament is reviewing the issue.
Approach to the Question of Abortion in Different Countries

Roe v. Wade (1973, USA); in this case, the right to an abortion is based largely on the privacy rights of
the mother. And the mother’s right to privacy is balanced against the interest of the state in the
welfare of the foetus. As the baby grows, the interest of the state also grows. E.g in the first
trimester (up to 3 months), abortion is generally available if done by a licensed physician. In the
second trimester (up to 6 months), abortion is prohibited unless necessary to preserve the
life/health of the mother.
■ In Britain, an abortion is lawful if for example, prior to the 24th week of pregnancy, two medical
doctors believe in good faith that the pregnancy would be a risk to the physical or mental health
of the woman.
■ In Barbados, there is a Medical Termination of Pregnancy Act of 1983. And for example, if prior
to the 12th week of pregnancy, a medical practitioner is of the good faith opinion that the
continuance of the pregnancy would involve a risk to the mother’s life or will cause serious
injury to her physical or mental health, then an abortion may be carried out. They will also
consider if the pregnancy was a result of rape or incest; and if the child is born, whether they
will be a substantial risk of it being seriously handicapped. Barbados will also consider
socio-economic conditions.
■ In Guyana, there is a Medical Termination of Pregnancy Act (1995)…. (look it up). Depending on
the stage of pregnancy, an abortion may be administered in an approved institution. Also
whether the pregnancy will be of great risk to the mother’s life, or cause injury to her physical or
mental health; also the risk of the child being born with abnormalities. They will consider
whether the pregnant woman is known to be HIV+, and consideration will be given to whether a
recognized form of contraceptive method was utilized and failed. (whether the pregnancy
resulted in spite of the use of a recognized contraceptive method)
■ In St Lucia in 2004, the Criminal Code was modified to protect the woman’s physical and mental
health. Abortion will also be allowed in cases of rape and incest. But the woman must provide a
police report to substantiate her claim (that she was raped etc)
Arguments Against Abortion (Pro-Life):

*Contrary to religious principles
*Violates sanctity of life
*Life begins at conception
*Health risks are associated with abortion

lOMoARcPSD|34683058
*Children should be put up for adoption instead
Arguments For Abortion (Pro-Choice)

*The foetus is not a human being with a right to life
* A woman should have the right to choose
* The woman has a right to privacy
* Mother’s life and health should be protected
*Many women are dying because of abortions that are illegally and improperly done
N.b: Do some research and provide statistics in relation to abortion in Jamaica and the Caribbean.
Death Penalty Next Week!

lOMoARcPSD|34683058
Law & Gov

18/10/17
Crime
An act that breaks the law in relation to an individual’s behaviour in society. The harm by the
act is seen to be against society as a whole and not just a specific person.
A crime is an act that is against the law and is punishable upon conviction. There are two
types of crimes: 1. Crimes against the person 2. Crimes against property
Crime against a person includes use of force or threat of force against someone eg. Murder,
attempted murder, sexual assault and kidnapping.
A crime against property includes unlawfully taking or attempting to take someone’s property
from them or wilfully damaging another person’s property, breaking and entering or being
dishonest with someone to gain something illegally (fraud).
Crime & Jamaica

In the eyes of many individuals Jamaica is well known for its wonderful beaches, food and
culture. However, in recent decades Jamaica has been characterized by high rates of violent
crimes and relatively low rates of property crimes. In 2009 the homicide rate in Jamaica
reached unprecedented levels at 62.2 incidence occur per 100,000 inhabitants. Indeed, for
more than 3 decades crime and violence have been the main issues on the government of
Jamaica’s agenda. Two central issues have been in Jamaica’s ranking among jurisdictions
with the highest rates of homicides and the impact of such a high crime environment on the
nation’s development. There is no intergenerational poverty and family breakdown are some
of the main contributors to crime, however, the mushrooming growth of gangs and a growing
culture of impunity in which people feel they can commit the most heinous crimes and get
away with it have emerged in the findings of researchers as being contributors to crime and
criminality.
Against the rising tide of crime, a successive government and the security forces have largely
been ineffective. Researchers highlight that from the mid 1970’s criminals and gangs have
been entrenching themselves in communities and vigorously arming themselves to take on
and resist law enforcement in responses the leadership of both political parties have engaged
in morally confusing behaviour while voicing concerns about crime and implementing
numerous anticrime packages, they have been involved in high profile relationships with
known and suspected criminals, the police for their part are very slow in apprehending the
threats posed by these criminals as they were transforming themselves into dangerous and
powerful transnational syndicates and have only in the past decade moved to a modernized
their methods, technology and organization. Despite the image that is painted of Jamaica both
violent crime and the most troubling types of property types declined between the period of

lOMoARcPSD|34683058
2009 -2013, homicides declined by 30.2%, shootings by 25.8% and robbers by 12.5%
(Harriot, 2016).
NB Serious crimes that were exceptions to this trend included rape which increased by 20.5%
Despite the constant decline in categorised crime in Jamaica since 2009 the murder rate up to
2015 was 40.9 per 100,000, which places Jamaica in the top 5 per capita in homicides in the
world. It is evident that Jamaica needs a game changer in our approach to crime because in
the past 14 years crimes and violence has cost more than 15,000 lives and immeasurable pain
and suffering to the Jamaican people, it is also a serious drag on investment and development
and according to the world bank crime is denying the country 7% of additional economic
growth annually. Individuals such as professor Anthony Clayton has highlighted that gang
related and domestic violence in Jamaica is 8 times higher than in the hottest war zone. From
a more relatable perspective professor Clayton highlights that crime costs about 19 times
more than hurricanes.
Factors for crime in Jamaica

Intergenerational poverty and a glaring economic and social inequality
Successive Jamaican survey of living conditions a recorded continuous decline in poverty
levels here in Jamaica, however, in 2012 there was a marginal increase to 19.9%,
other data shows that in rural and urban township there were close to 1 million
Jamaicans or 37% of the population were living in squatter settlements across the
island, however, areas with the greatest poverty in Jamaica, the deep rural areas are
not the areas with the worse crime, which testifies that there is no simple connection
between poverty crime nonetheless there can be no argument that poverty is a general
cause for all sorts of socially maladjusted behaviour.
High unemployment and under employment among the youths

The unemployment rate in Jamaica at the end of 2016 was at 15.7% most importantly youth
unemployment rate in Jamaica was 29.2% at the end of 2016 however the average
youth unemployment rate between 2010-2016 was 35.5%.
Slow pace and failure of successive governments to modernize police force
The government has failed to equip the police force with enabling legislation and
technologies to prevent and investigate crime and to keep pace or stay ahead of
ruthless and well organized criminal gangs.
An under resourced and ineffective police force widely perceived as corrupt

lOMoARcPSD|34683058
Jamaica’s per capita police ratio is approximately 3 police officers to 1000 citizens, which
comes in the middle of police per capita ratios internationally which generally ranges
from1.2 to 5.5 per 1000 of the population, the ratio however maybe overstated the
adequacy of the size of Jamaica’s police force given the difficulty of policing terrain
in Jamaica.
Political tribalism
This refers to one’s loyalty and identify to a particular groups or tribe, therefore political
tribalism speaks to one’s level of loyalty and identity to a particular political party.
Characteristics of crime in Jamaica

▪ Crime is dominated by young men 2008-2014 approximately 87% of individuals are
males, of this 87%, 76% are between the ages of 16 and 35 years of age.
▪ It is increasingly organized, and transnational hardly have individuals acting alone.
▪ Criminals activities are wide ranging and multifarious. Human trafficking, Colombian
style drug dealing, Nigerian style scamming.
How do you respond to the crime problem?
● Primary prevention- these are programmes that target the larger population to increase
protective factors and reduce risk factors, promote social nonviolent and noncriminal
behaviours, strengthen communities and address environmental factors that promote
crime and violence from occurring.
● Secondary prevention- these are programmes that target the youth, women, families
specifically identified at a risk of being perpetrators or victims of crime and violence.
● Suppression incentives- which aim to improve the functioning of the justice system
and creates innovative new practices to control crime and violence.
● Tertiary prevention- programmes that target individuals or families who have already
been involved in harmful, violent or criminal activities to help them develop strategies
and support systems to avoid perpetrating crime in the future.
QUIZ

lOMoARcPSD|34683058
Who is the president of the CCJ? Sir Charles Dennis Byron

ECCA? Eastern Caribbean Court of Appeal
Highest court utilized in Jamaica? Privy Council
What matters do the privy council reluctant in hearing? They hear all matters except
for political disputes
Who is the contractor general? Dirk Harrison
Chief justice? Mrs. Justice Zaila Rowena McCall
Who is the president of the senate? Tom Tavaris Finson

lOMoARcPSD|34683058
Death Penalty
International Law
Note: Treaties on Right to Life (see notes on abortion last week)
Article 3 UDHR
Article 4 American Convention on Human Rights.
*Has a protocol to abolish death penalty. Jamaica and other Commonwealth Caribbean Countries are
not a part of this protocol.
*Life shall be protected in general from the moment of conception.

Article 6, ICCPR
*Every human being has the inherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of life.
2nd Optional Protocol: aims at abolition of death penalty
Commentary: Some writers hold the view that international law does not prohibit the death penalty but
rather it imposes restrictions. These restrictions can be found in Article 6 of the ICCPR and Article 4 of
the American Convention on Human Rights. They are:
(1) Sentence of death may be imposed only for the most serious crimes.
(2) The death penalty can only be carried out after a final judgment handed down by a competent
court.
(3) Persons sentenced to death shall have the right to seek pardon or commutation (reduction) of
sentence. N.b sentence of death shall not be imposed for crimes committed below 18 years of
age or above 70 years and shall not be carried out on pregnant women.
(Check: Death penalty shall not be handed down for political offences; this is in the American
Convention)
Jamaica and the Death Penalty
Domestic Law: The Constitution
Section 13.3.a of the Charter of Fundamental Rights and Freedoms speaks to the right to life, liberty and
security of the person and the right not to be deprived thereof except where one has committed a crime
and has been convicted and sentenced by a court. The constitution therefore preserves the death
penalty.

lOMoARcPSD|34683058
Note Section 2 of the Offences Against the Person Act which sets out the category of murders that
would attract the death penalty.
Namely:
(1) Killing a Police Officer/Correctional Officer/Member of the Security Forces/Judicial

Officer/Justice of the Peace acting in the line of duty/executing their position. Also,0. A
Witness/Party to a Pending/Concluded Court Case.
(2) Murder Committed in the course or furtherance of robbery, housebreaking, arson, burglary,
sexual offences, and terrorism.
(3) Murder for Hire/Contract Killing. (Both the killer and the person who hires them get the
penalty)
(4) Murder as part of a joint enterprise (two or more persons coming together). The one who
inflicts violence and causes death will receive the death penalty.
(5) Two counts of non-capital murder. (Non-capital murder is any not on this list). That may be
murder committed on the same or a previous occasion.
Note that the OAPA was amended in 1992 to allow for above categories of murder to attract the death
penalty.
*(Prior to 1992, all murders in Jamaica would attract the death penalty)
Before 2005 (The year with the Lamberg-Wattson case) these offences attracted the mandatory death
penalty. However, since 2005 the sentence for capital murder is now death OR to imprisonment for life.
So the death penalty is no longer mandatory in Jamaica and most (all but two) Commonwealth
Caribbean countries.
All other murders would be classified as non-capital murder and would attract life imprisonment. Note
that since 1998 the death penalty has not been enforced in Jamaica; it was last enforced in Barbados in
1993, and St Kitts and Nevis last had an execution in 2008 (part time hangman, charged 880 lbs).
Some argue that the Privy Council cases have effectively abolished the death penalty in Commonwealth
Caribbean countries (that may be why we are no longer enforcing it).
Privy Council Cases:

1. Pratt and Morgan (1993,this case is now null and void in the Jamaican Constitution)
Both men were convicted and sentenced to death in 1979 and they both launched petitions to the
international human rights bodies.
Privy Council noted that in any execution taking place more than 5 years after sentencing, there would
be a strong presumption that the delay amounts to cruel and inhuman treatment contrary to
the constitution. This is called the 5 Year Rule. The sentence must be commuted from death to
life imprisonment.

lOMoARcPSD|34683058
As a result, in 1997 Jamaica withdrew from the first optional protocol to the ICCPR in an effort to reduce
the time taken in appealing the sentence of death. Note that the charter of fundamental rights
and freedoms (2011) has nullified the 5 year ruling in Pratt and Morgan, in section 13(8). This
states inter alia that the length of time which passes between the date off sentence and the
date on which the sentence is executed, will not be held to be inconsistent with the charter. N.b
Barbados did this in 2002 in section 15 of their constitution.
(2) Neville Lewis et al (2000). The case considered whether the appellants had the right not to be
executed before the external human rights bodies had finally given their reports on their
petition. The Privy Council noted that the petitioner was entitled under the protection of law
provision in the constitution, to complete the human rights procedure. Also note that convicted
murders are entitled to exhaust all channels of appeals before they are put to death. This case
also affirmed the 5 year rule in Pratt and Morgan.
(3) Lambert-Watson (2005). This case examined the mandatory death sentence and held that it was a
violation of the applicant’s right to freedom from cruel and inhuman treatment. The court notes
that consideration should be given to his personal background and the particular circumstances
of his case …. It was ruled that Judges in capital murder cases will now have two hearings: a
trial to determine guilty/culpability and a sentencing/mitigation hearing…. evidence such as
character witnesses with a view to having a lesser form of punishment instead of the death
penalty. As a result of this case, the OAPA was amended in 2 0 0 5 to include life imprisonment
as an alternative sentence.
(4) Evon Smith (2005). This case illustrates that the death penalty provisions are strictly interpreted by
the Privy Council. Smith was convicted for capital murder in furtherance of burglary (broke into a house
through a window, and chopped his girlfriend to death). The PC reasoned that the legislation (our OAPA)
required more than the sole purpose of committing murder. It required a duality of purpose which was
not present in this case. The OAPA contemplated a situation where Smith for example went to steal, and
to assist that process, committing murder. They held that he should not get the death penalty (showing
us how strictly they interpreted our rules).
(5) Daniel Dick Trimmingham (In St Vincent) * Do not leave it out of Privy Council discussions just because
it is not in Jamaica. It is relevant to PC cases.
It is a gruesome murder which involved cutting off the throat, cutting off the head, slitting the belly, and
more. Trimmingham was carrying a firearm and he also stole from the deceased. The man he killed was
an old man; this would be murder in the course of robbery. The Privy Council noted the approach that
judges in the Caribbean should follow where the death sentence is discretionary. The sentencing judge is
required fully to consider the two fundamental principles:
The two principles are (1)—the death penalty to be imposed only in cases where the facts are the most
extreme and exceptional, the worst of the worst, and the rarest of the rare. In considering where a
particular case falls, the judge should compare it with other murder cases and not with ordinary civilized
behavior.
(2) There must be no reasonably possibility of reform for the offender and the object of punishment
unable to be achieved by any other means except the ultimate sentence of death.

lOMoARcPSD|34683058
Their Lordships (the Privy Council) noted that this is a bad case, even a very bad case, but in their
judgement, it falls short of being among the worst of the worst such as to call for the ultimate penalty of
capital punishment. They concluded that the death penalty could not stand and the appellant in its
stead should be sentenced to life imprisonment.
(6) Pipersburgh & Robateau (2008) . The court noted that the death penalty should be imposed only in
the most exceptional and extreme cases of murder. The judge should consider the personal and
individual circumstances and the possibility of reform of the convicted person.
(7) Lockhart v. R. … The report of a consultant psychiatrist is needed before the question of whether the
person can be reformed, is addressed.
Next week: Economic Social and Cultural Rights.

lOMoARcPSD|34683058
Law and Gov

25/10/17
Crime continued
Impact of crime on society
1. The issue of violence being passed down from one generation to the other.
2. People living in fear because of crime.
3. Lower quality of life of people, they refrain from visiting locations that will expose
them to crime and conducting activities that would expose them to crime.
4. Psychological cost of crime
5. Medical cost/health cost of crime
6. Legal costs
7. Cost of detention, feeding persons who are in jail, overcrowding in prison, back lag of
cases in the court.
8. Stigma associated with certain communities
9. Security costs in relation to crime, many have to invest in private security in their
homes.
10. Promoted a get rich quick mentality among persons.
11. Affects development (economic development) high crime rate is a barrier to
investments as crime stifles economic growth.
12. Resources are diverted to fighting crime.
13. Affects tourism crime could potentially derail the tourism industry. Property crimes s
14. Tax payer’s money utilized to feed criminals in prison.
15. Loss of income caused by incarceration.
16. Criminality can cause brain drain; skilled professionals will leave the country.
17. Delinquency - young people repeatedly breaking the law and not attending school in
order to pursue a life of crime. This affects their education both a societal and
economic impact as a result.
18. Affects businesses negatively depending on the location they would have to close
early, extra security, adding fencing, having to pay extortion fees.
NB Do further research on the impact of crime on society and the economic

development for more notes
DEATH PENALTY from the perspective of international law

Jamaica and other commonwealth countries have ratified treaties (became a part of them) that
speaks to the right to life. Note article 4 of the American convention on human rights and
article 6 of the ICCPR.

lOMoARcPSD|34683058
Article 6 notes that every human being has the right to life, this right should be protected by
law, no one shall be arbitrarily deprived of his life. Some writers hold the view that
international law does not prohibit the death penalty, it imposes restrictions such as:
NB these are a combination of the restrictions from ICCPR and HCHR
▪ The sentences of death maybe imposed only for the most serious crimes.
▪ The death penalty can only be carried out after a final judgement has been handed
down by a competent court.
▪ Persons sentenced to death shall have the right to seek pardon or commutation of
sentences.
▪ The penalty should not be imposed on persons below 18 years of age or over 70 years
and it should not be imposed on pregnant women.
▪ The penalty should not be inflicted for political offenses.
Vacciani has noted that the death penalty is judicially sanctioned in each case and therefore it
cannot be reasonably described as arbitrarily. He noted that article 6 contemplates the
possibility of the death penalty in some cases. The article also speaks to persons under 18
years. According to Vacciani this is evidence that the death penalty is not bared for persons
outside this category.
NB International law does not prohibit but restricts.
Second optional protocol to the ICCPR aiming at abolishing of the death penalty, however,
Jamaica and other commonwealth Caribbean countries are not bound by its provisions of the
protocol as we have not signed on to it, as the death penalty is still on our books.
Death penalty and domestic law

NB Jamaica as the example
Constitution and the OAPA

Note section 13 3a of the charter of fundamental rights and freedoms. Chapter 3 of the
constitution (the new one) 2011. Speaks to the right to life, liberty and security of the person,
it also states that one should not be deprived of this right except when you are being
sentenced by a court in respect of a criminal offense.
NB The constitution therefore preserves the death penalty
The offenses against the person Act of relevance are sections 2 and 3 of the OAPA. Section 2
sets out the categories of murders that attract the death penalty such as:

lOMoARcPSD|34683058
❖ The killing of a police officer, correctional officer, any member of the security forces
acting in the line of duty, a judicial officer acting in the line of duty. A witness or a
party to a pending or concluded court case and also a justice of the peace or juror.
❖ Murder committed in the course or furtherance of robbery, house breaking, arson,
burglary, sexual offenses, terrorism. Robbery happens at night house breaking
happens in the day and burglary also happens in the night.
❖ Murder for hire/contract killings, both the killer and the person who hired them would
get the penalty.
❖ Murder s part of a joint enterprise, two or more persons come together to commit the
murder, the ones who inflict the violence are the ones that will get the death penalty.
❖ Two counts of noncapital murder
NB Anything not on this list is noncapital murder

The OAPA was amended in 1992 to allow for the previously stated categories of murder.
Prior to 1992 all murders would attract the death penalty.
Before the Lambert Watson case, these offenses attracted the mandatory death penalty. Since
2005 the sentence for capital murder is now death or imprisonment for life and all other
murders attract a sentence of life imprisonment.
NB based on the forgoing it is clear that from a strict legal perspective Jamaica and
other commonwealth Caribbean countries have the right to maintain the death penalty
on their books and they do not appear to be acting in contrary to international law.
Could be criticized about being too legalistic while others will raise religious and moral
perspectives.
Privy council / Case law

Since 1988 the death penalty has not been enforced in Jamaica, in Barbados the last occasion
was in 1985 and St. Kitts and Nevis was 2008. Some argue that the cases from the judicial
committee of the Privy council have effectively abolished the death penalty in Jamaica.
● Pratt and Morgan 1993
Both men were convicted on murder in 1979 and sentenced to death in 1979, 3 occasions
they were read the death warrant and placed in cells beside the gallows, the Privy
council spoke about the agony of mind they must have suffered in the 14 years they
were imprisoned. Morgan died in prison and Pratt was released. The Privy council
ruled that in any execution taking place more than 5years after sentencing, there
would be a strong presumption that the delay amounts to cruel and inhuman treatment
contrary to the constitution, therefore, the sentence must be reduced from death to life
imprisonment.

lOMoARcPSD|34683058
Due to the Pratt and Morgan case in 1997 Jamaica withdrew from the first optional protocol
to the ICCPR in order to reduce the time taken to appeal the sentence of death. The first
optional protocol gave them the option of appealing to organizations to prevent their deaths
or to review their sentences.
NB 2002 Barbados amended their constitution for the 5-year rule
● The Neville Lewis et al case 2000

This case considered inter alia whether the appellants had a right not to be executed before
the external human rights bodies had given their reports to their petitions. The Privy
council noted that they were entitled under the protection of law provision in the
constitution to complete the human rights procedure and to obtain the reports of the
human rights bodies. The court noted that convicted murders are entitled to exhaust
all channels of appeal before they are put to death. The Neville Lewis case affirmed
the 5 years rule in Pratt and Morgan.
These men Neville Lewis and company stole Big Higgs’ car and killed him

lOMoARcPSD|34683058
International Covenant on Economic, Social and Cultural Rights
(Recall)
A treaty is an international agreement among states on a particular subject matter.
■ When officials go abroad and sign off on a treaty, it is not automatically binding (in local
law) back home but it is a legally binding document on the international plain.
■ It is not binding locally until the government incorporates it locally.
Note that the right to health, the right to work are not in our constitution (not legally
guaranteed).
Article 2 of the ICESCR:

Each state should take steps to the maximum of its available resources with a view to achieving
progressively the full realization of these rights. (note that this does not happen overnight, and it is based on
resources as well)
--ICCPR was about immediate obligations, while the ICESCR is progressive in nature. (there is a tutorial question on whether
these rights made sense in a Caribbean context considering how we are developing countries and have limited resources
available to guarantee such rights)
Article 6 recognizes the right to work which includes the right of everyone to the opportunity to
gain his living, by work which he freely chooses or accepts. It also speaks to technical and
vocational training programmes.
Article 7 deals with just and favourable conditions of work and includes fair wages and safe and
healthy working conditions, holidays with pay, and equal opportunities for promotion.
Article 8: Speaks to the right of everyone to join trade unions.
Article 11 deals with the right of everyone to an adequate standard of living for himself and his
family (including adequate food, clothing and housing), and the continuous improvement of
living conditions.
*note, I will read the treaty.
Article 12 recognizes the rights of everyone to the enjoyment of the highest standard of
physical and mental health. It also speaks to the reduction of the stillbirth rate and of infant
mortality. It also addresses the control of epidemics and other diseases.
Article 13 recognizes the right of everyone to education. Primary education shall be compulsory
and available free to all. Secondary education to be generally available and accessible to all.

lOMoARcPSD|34683058
Higher education shall be made equally accessible to all on the basis of capacity and in
particular by the progressive introduction of free education.
There is a committee set up on this treaty to review the annual reports of states on compliance
with the treaty. This committee now has power to hear individual complaints based on a
Protocol that entered into force in May, 2014. In Jamaica we pay greater attention to the civil
and political rights such as police killings and prison conditions. Civil and Political rights are
often described as being more justiciable. Economic, Social and Cultural Rights would require
greater expenditure/resources by the state before they can be realized. Therefore, they are not
as easily enforceable as justiciable rights (they require expenditure, resources, and are often
not in the constitution).
According to Prof. Stephen Vasciannie: Economic, Social and Cultural rights are aspirational in
nature. He says that they are laudable (praiseworthy) objectives. However the main provisions
on health, education, and work—while commendable, are not easily justiciable.
N.b: Justiciable (adjective) means can be enforced as legal rights in a court of law.
(note that ratifying the treaty makes it legally bound so citizens of the country can take up a
complaint with the Committee, while merely signing it gives them no such power)
The Committee has noted that these rights will not generally be achieved in a short time.
However, there is an obligation on states to move as expeditiously as possible to the full
realization of these rights.
Next: The Jamaican Constitution and provisions in our charter relating to these rights. (only
2)….
The Charter of Fundamental Rights and Freedoms (2011, Jamaica) in section 13(3)(K) speaks to
the right of every child who is a citizen of Jamaica, to publicly funded tuition in a public
educational institution at the pre-primary and primary levels.
Section 13(3)(L) of the Charter of Fundamental Rights and Freedoms (Jamaica) speaks to the
right to enjoy a healthy and productive environment. (but still no specific right to health).
Constitutional recognition means that the court has the power to guarantee such rights.
Health: There are a number of pieces of relevant legislation as well as programmes and policies.

lOMoARcPSD|34683058
Legislation—The Medical Act (1976), Mental Health Act (1999), The Public Health Act (1985).
They cover the conduct and registration of doctors, treatment of the mentally ill, and
preserving public health.
Programmes and Policies: ---

Jamaica Moves,
Jamaica Drugs for the Elderly Programme (JADEP),
National Health Fund (NHF),
PROMAC—Programme for the Reduction of Maternal and Child mortality
Health Passport (2010) (addresses immunization),
And many others you can come up with when you do your research…
READ VASCIANNIE’s CARRIBEAN PERSPECTIVES ON HUMAN RIGHTS
Legislation may not have it, but we have many programmes and policies in place.
Education—Education Act(1965), deals with inter alia, the discipline of teachers and management of
public institutions.
PATH—Financial Assistance, Book Rentals, subsidies on highschool exams (CXC, CAPE)
JAMVAT—Volunteers get their tuition paid for.
(In exams we may want you to have practical examples)
Right to work--- Minimum Wage Act (1938,2011), Holidays With Pay Act, Maternity Leave Act, Labour
Relations and Disputes Act et cetera.
According to Vasciannie, these acts are based on the assumption that the person already has employment (so it’s not really
giving you the right to work)
Programmes and Policies : National Youth Service (NYS), and HEART (NTA)—National Training Agency.
--These show that steps have been taken, however these rights are not specifically protected and
guaranteed in the Jamaican constitution except for pre-primary and primary education and the right to a
healthy environment.

lOMoARcPSD|34683058
In Guyana (1980) in their constitution, they have the right to work, the right to free medical attention,
the right to proper housing accommodation, and the right to free education from nursery to university.
(but remember that these rights hinge on the availability of resources)
In Belize in section 15 of their constitution, the right to work is protected.
In South Africa, section 27 (1) of their constitution speaks to the right to access health care, sufficient
food and water. Section 27(2) mentions that the state will take measures within its available resources.
More On Justiciability: Justiciability means that it can be enforced in the courts as legal rights. It
has been argued that it would be difficult to manage these rights through the judicial process.
Another is that the vagueness of some of the provisions makes it difficult also to enforce these rights.
Another argument is that when the court hands down its decision, it will be difficult to implement it
because it is dependent on resources.
READ DI TREATY AND FIND MORE ARGUMENTS ON THESE MATTERS!
Pls read Caribbean Perspectives on Human Rights by Stephen Vasciannie
CRIME AND VIOLENCE
■ Has been plaguing a number of countries; Jamaica is one such country.
There are two types of crimes:
Crime against the Person, and Crime against Property.
Crime against a person includes murder, sexual assault while crime against property includes theft and
other financial crimes (lotto scamming)
Causes of Crime: Factors Contributing to Crime
● Poverty and economic and social inequality

● High unemployment (specifically among youth); unemployment rate in Jamaica was at 13.7% at
the end of 2016 and youth unemployment rate was at 29.2%.
● The failure of government to modernize the police force (e.g gunmen having better weapons
than police)
● Ineffective and under-resourced police force which is widely perceived as corrupt. (call police for
a crime and they say they have no vehicles)
● Political tribalism: unswerving loyalty to political parties which can lead to garrison communities
● Weak family structures and single mother households. (in JA in 2008, 55% of the poorest
children lived with only their mothers)

lOMoARcPSD|34683058
● Revenge killings; anger, greed, peer pressure

● Training and hardening in penal (prison) facilities
● Drug trade and drug use
● Corruption—lack of values
● Globalization has impacted crime
● Geographical factors such as the island character of Jamaica (ease of access to criminals,
insufficient resources to police our borders;
● Strategic Location between North and South America—NA being the demand center, and SA
being the supply chain.
● Music and its lyrical content (ARGUABLE); media and internet; culture and society
Solutions and Strategies:
Solutions:
*Effective socialization.
*There is a need to strengthen communities.
*Restore home and family values.
*Programmes to prevent reoffending
*Increased Employment
*Alleviation of Poverty
*Controlling the flow of guns into and within the country
*Community Policing to improve relationships between citizens and the police
*Encourage active partnership between the private sector and communities
* Developing special legislation aimed at controlling crime. (E.g ZOSO- Zones of Special Operations)
Things to read with notes: The Gleaner, Thursday October 19th 2017, talking about the Special Zones
Law.
Talks about—Can wear body cameras. Can search any place without warrant once there is reasonable
suspicion. Persons in a ZOSO must provide proper identification—if wrong information provided, can be
fined up to $100,000 or serve a prison term of no more than 10 days.
Once ZOSO declared, a social intervention committee must be set up.
*Anti lottery-scamming Act
*DNA Act
*Better intelligence gathering and investigation

lOMoARcPSD|34683058
Crime and Its Impact on Social And Economic Development
(get some examples)
SOCIAL:
*Violence is being passed down from one generation to another.
*People Living in Fear.
*Psychological Cost
*Lowering the quality of life

* Some persons refrain from visiting locations (freedom of movement impaired)
*Security Costs
*Medical costs( after being victim of a crime)
*Overcrowding in prison systems
*Backlog of cases in courts
*Legal costs
*Stigma associated with certain communities
Economic Development:
*High crime rate is a barrier to foreign direct investments stifles economic growth
*Resources diverted to fighting crime
*Affects tourists arrival (has the potential to derail the tourism industry)
*Can lead to loss of foreign exchange (as a result of previous point)
* Lack of income caused by incarceration
*Criminality can cause brain drain (skilled professionals leave the country to work overseas)
*Leaving school to embark in crime
*Increased security costs (private security, fencing, dogs, extortion)
NEXT WEEK: Foreign Direct Investment.

lOMoARcPSD|34683058
Lecture
1/11/17
NB Abe Dabdoub vs Daryl Vaz dual citizenship case
Chief Justice ZALA MAKALA
Court of Appeal president DENNIS MORRISON
Political Ombudsman DONNA PARCHMENT BROWN
Continuing Death Penalty

Lambert Watson case, he killed two persons his 9-month-old daughter and the child’s mother,
two counts of non-capital so death penalty was given at the court of appeal. The Privy
Council said it was cruel and inhuman treatment to give the death penalty. Note that the
applicant’s personal background and circumstances of his case were of relevance, the judges
ruled that in the capital murder cases there will now be two hearings 1. A trial to determine
guilt/ culpability 2. A sentencing hearing, in this hearing character witnesses could give
evidence with a view to having a lesser form of punishment instead of the death penalty.
Because of the Lambert Watson case the OAPA was amended in 2005 including life
imprisonment as an alternative punishment in capital murder cases, therefore in Jamaica the
death penalty is now discretionary.
Evon Smith
This case illustrates that death penalty provisions are strictly interpreted by the Privy Council.
Smith was convicted for capital murder in furtherance of burglary after breaking into a house
at night through a window and chopping his girlfriend to death. Our OAPA required more
than the sole purpose of committing murder it required a duality at purpose which was not
present in this case in other words, Smith went in to kill only and not to commit any other
criminal offense (example stealing) and the OAPA contemplated a situation where smith for
example went to steal and to assist that process he committed murder.
2009 Daniel Dick -Trimmingham (St. Vincent and the Grenadines) also applicable to
Jamaica
NB St. Vincent and Belize cases must be included when discussing Jamaica’s cases gruesome
murder, cutting of the throat cutting off the head and slitting the belly, was carrying a fire arm
and robbed the man which was an elderly man. However, the Privy Council stated two basic
principles that judges in the Caribbean should follow where the death sentence is
discretionary. This case wouldn’t apply to Barbados and Trinidad and Tobago.
1. The death penalty should only be imposed in cases that are considered the worse of
the worse and the rarest of the rare. In deciding whether a particular case falls in a

lOMoARcPSD|34683058
particular category the judge should compare it with other murder cases and not with
other civilized behaviour.
2. There should be not reasonable prospect of reform for the offended and the object of
punishment could not be achieved by any other means than the ultimate sentence of
death. The Privy Council noted this was an undeniably bad case even a very bad case
of murder committed for the gain but in their judgement, it falls short of being among
the worse of the worst as to call for the ultimate penalty of death they concluded that
the death penalty could not stand and Trimmingham should be given life instead of
death. Note that the Trimmingham case is now followed in Jamaica in the Peter
Dougal case.
Pipersburgh and Robateau (case from Belize) 2008

Involved the shooting of two security guards. The privy council said that death penalty
should be handed down in the most exceptional and extreme form of murder, and the
judge should consider the personal and individual circumstances of the case, and also the
possibility of reform.
NB LOOK UP ARGUMENTS FOR AND AGAISNT THE CASES

Although the death penalty is still on the book capital punishment has not been enforced in
Jamaica since 1988. It has been argued that the cases coming from the Privy Council have
effectively abolished the application of the death penalty in Jamaica. Nevertheless,
Jamaica is a sovereign nation and from a strict legal perspective is not acting contrary to
international law in maintaining the death penalty.
NB amendments of the dangerous drugs act 2015 look up the marijuana situation look
it up
Some main provisions in the ICESCR
Article 2 of the treaty notes that states should take steps to the maximum of its
available resources with a view to achieving progressively the full realization of
these rights.
The treaty also states that the rights are to be exercised without discrimination of
any kind as it relates to race, colour, sex, language, religion.
Article 3 deals with the equal rights of men and woman to the enjoyment of these
rights.
The right to work is addressed in article 6,7 and 8.
Article 6 recognizes the right to work, it includes the rights of everyone to the
opportunities to gain his/her living by work the he/she freely chooses.
Article 7 deals with the right to just favourable condition of work, includes fair
wages and the safe and healthy working conditions also equal opportunity for
promotions and holidays with pay etc. LOOK UP MORE
Article 8 deals with the right to join a trade union.

lOMoARcPSD|34683058
The right to health article 12 recognizes the right of everyone to the enjoyment of
the highest standard of physical and mental health it also speaks to the reduction
of the still birth rate and infant mortality rate and the treatment of epidemics and
the improvement of environmental hygiene.
Right to education article 13 recognizes the right to education and notes that
primary education should be mandatory and available free to all. Secondary
education should be generally available and accessible to all and higher education
shall be equally accessible to all on the bases of capacity and it also speaks to the
progressive introduction of free education.
Article 11 deals with the right of everyone to an adequate standard of living for
himself and family including adequate food, clothing and housing and to the
continuous improvement of living conditions.
In 1980 a committee was set up under this treaty to review the annual reports of states on
compliance with the treaty provisions. The committee then did not have the powers to
hear individual complains but it could issue general comments on December 10, 2008
an optional protocol to the ICESCR was adopted which now allowed for individual
complaints and that protocol entered into force in 2013.
NB Find the optional protocol and look at the list of states and look to see if any
commonwealth country has joined it.
Professor Vacciani has noted that in Jamaica we tend to give greater attention to civil and
political rights. The civil and political rights are usually justifiable (meaning they can
be enforced by the courts as legal rights eg right to life. However, he argued that the
economic and social rights are more complicated as these require significant
expenditure by the state, he further noted that economic and social rights are
commendable but are not easily enforceable as justifiable rights and therefore some
developing countries would have difficulty in meeting these obligations.
In Jamaica in the charter of fundamental rights and freedoms 2011 section 13 paragraph 3K
speaks to the right of every child who is a citizen to publicly funded tuition in a public
educational primary and pre-primary level. Section 13 3L speaks to the right to enjoy
a healthy and productive environment (still no specific right to health). Constitutional
recognition means that the courts have the power to guarantee such rights. (justifiable
rights)
Health Jamaican Perspectives
In Jamaica we have many relevant pieces of legislations and programmes and policies that
respect these rights.
Legislation – the medical Act, the mental health Act, the public health Act. These deal with
the conduct of doctors and the treatment of the mentally ill but still does not guarantee
the right to health.

lOMoARcPSD|34683058
Programmes and Polices- national health fund, free health care in most public hospitals,
JADEP (Jamaica Drugs for Elderly Programme)
Education Jamaican Perspective

Education Act of 1965, dealing with the discipline of teachers and the management of public
institutions. We now have the right to pre-primary and primary education in the
constitution but nothing yet for secondary and tertiary.
Programmes and Polices – PATH, book rental, lunch substeadies.
Right to work
Legislation- right to work, minimum wage act, holiday with pay act, maternity leave act.
According to Vacciani it is based on the assumption that you already have work
Programmes and Polices- NYS, skills training programmes
Steps therefore have been taken to respect these rights through legislations and programmes
and policies and despite the economic constraints there is an obligation on states to
move as quickly as possible to fully realize these rights. Some argue that these rights
are just as important as the civil and political rights forces as poverty can prevent your
enjoyment of your civil and political rights eg. Your right to free speech can be
hampered if you are hungry and illiterate which falls under economic and cultural,
your right to vote is dependent on your home address (need a home to vote).

lOMoARcPSD|34683058
Remnants from Crime and Violence:
See the article dated October 14, 2018 in the Sunday Gleaner entitled “Suffering under the
SOE"
Official figures from the police show that murder was down by 25% and shooting down 33%.
Read the article on the Sunday Gleaner entitled “Wrong on Crime”. It mentions that Caribbean
countries spend a lot on policing and not a lot on preventative programs.
Foreign Direct Investment (FDI)

FDI involves the transfer of assets from one country to another to generate wealth. These
bilateral investment treaties set out the terms and conditions usually established between a
developed and developing country. The country from which the invest comes is called the
home country/capital exportee (usually the developed country) and the country in which they
invest is called the host country/capital importee. A typical bilateral investment treaty contains
the following provisions
(1) Treatment Standards: Foreign Direct Investors are entitled to the same treatment and
benefits as national companies. This is called national treatment.
Each investor is entitled to the same treatment as investors from other countries. This
is called most favoured nation treatment. No country shall be treated more favourably;
there should be no discrimination. All investors are entitled to fair and equitable
treatment.
(2) Expropriation/Nationalization: The host state shall not expropriate (take over)
/nationalize (put under state control) foreign investments directly or indirectly except
for a public purpose and in a non-discriminatory manner.
Note Resolution 1803 which states that all nations have permanent sovereignty over
their natural well and this right cannot be surrendered.
Try to remember: If you expropriate then you must compensate [if you take over you should
pay for it]
(3) C ompensation: Where expropriation is undertaken, the host state must pay prompt
(pay immediately), adequate (pay at the market value), and effective (in an appropriate
currency) compensation. This is the standard of compensation that the developed/home
countries have followed. The developing countries on the other hand have argued for
appropriate compensation which would take into account all relevant factors.
(4) Free currency transfer: The host state shall permit all transfers related to foreign investors to
be made freely and without delay into an out of its territory, and in a freely usable currency.
Developing countries could make the argument that if such a transfer is done all at once, this
could have serious consequences for their economy. Some bilateral investment treaties regulate
this transfer and allow it to be done in phases.
(5) No performance requirements: (Basically, you can’t tell the foreign investors what to
do; like only use local products.)

lOMoARcPSD|34683058
There shall be no performance requirements in respective of foreign requirements that

are imposed by the host state. E.g The host state cannot force investors to employ local
people or use local products. (can’t tell KFC to only use local chicken and ground
produce).
The host state cannot insist that the foreign investors must achieve a certain level of
production. It is argued that this provision is skewed (tilted) against the interests of
developing countries. Developing countries should ensure that investments provide
some level of value to their economy and so they should negotiate with the developed
country.
(6) Third party dispute settlement: Disputes between the foreign investor and the host
state should be resolved by third-party arbitration and not by the courts of the host
state. The emphasis is on a neutral body (to avoid bias). Some treaties refer to the ‘local
remedy’ rule i.e investors are to exhaust all local remedies before using international
remedies.
It appears that these provisions reflect the perspective of the developing/home country.
Now, there are different types of Foreign Direct Investment.

(1) For example, efficiency seeking FDIs (foreign direct investors) and they seek low cost of
production through cheap labour. (CALL CENTERS)
(2) Secondly: Market seeking foreign direct investors. These seek to access new and
emerging markets so as to provide particular goods and services. (DIGICEL)
(3) 3rd: Resource seeking foreign direct investors. These seek to utilize the particular
resources of a country. E.g: Bauxite in Jamaica and Oil in Trinidad and Tobago.
(4) Lastly, Strategy seeking: Digicel was in Latin America, Claro was here in the Caribbean.
They were not doing so well in their respective areas, and so they switched. They have
now also been able to better monopolize their respective new markets (strategic
investment lead to greater market)
In exam, if you choose to do this type of question and you only remember the advantages, just
flip them around to find the disadvantages. Eg: Job provision <--> low paying jobs
FDI helps to develop the host country in the following ways:

● These investors help to develop the resources of a country. (Recall some are resource
seeking)
● Creation of jobs/providing employment.
● Transfer of skills and technology.
● Development of infrastructure e.g roads, ports, airports.
● Provision of new markets and a wider variety of goods. (e.g Digicel broke the monopoly
held by Cable and Wireless Jamaica when they arrived)
● Aid in creation of a more competitive business environment (e.g again,
telecommunications industry)
● Aids community development through participation in social programmes (Digicel again
Rising Stars, Scholarships)
● Provide lasting economic relationships

lOMoARcPSD|34683058
You can add to this list as you go along.
Disadvantages of FDI:
● Harmful environmental impact (dust from bauxite, noise production, goat island…
where the Chinese would have developed a trans-shipment court; but these islands
were protected and rich in flora and fauna etc)
● Erosion of culture
● Repatriation of profits (profits sent back to the home country)
● Employment created in low paying jobs
● Technology transferred sometimes outdated and ineffective
● Poor working conditions/breach of human rights
● Local industries are sometimes crippled by the competition
● Investors pull out when conditions no longer suit them (e.g no more tax holidays)
● Improper interference in internal political affairs
● Some see dependence of foreign investors as a lack of sovereignty
In 2007, FDIs across the globe rose by 30%. About ¼ went to Latin America and the
Caribbean. For the Caribbean: Trinidad and Tobago enjoyed the highest inflows bringing in
over US $1,000,000. Jamaica attracted $800,000 USD in mining and the tourism sector.
In 2015, The World Investment Report noted that FDI flows to the Caribbean retreated by
12% led by a sharp decline in T&T. In Jamaica the rise of inflows by 34% was associated with
activity in the hotel sector as well as in infrastructure and BPOs (Business Process
Outsourcing)
To foster growth and capitalize on the benefits of FDI, governments should ensure the
following:
● Low inflation and a stable exchange rate
● A tax system that is simple and competitive
● A modernized labour market—having the right people and skills; investing in our human
capital
● A simplified, business-friendly administrative system/ ease of doing business.
● Effective measures to fight/prevent crime and corruption (A high crime rate is a barrier
to investment)
● A supportive infrastructure (make sure we have good roads and courts etc)
● Developing the small-business sector (investors will be attracted to us if we can supply
them with the goods and services they need)
● Promote energy efficiency and conservation as high energy costs are also a barrier to
investment
Need to be knowledgeable about the terms of the treaty

Look at the advantages and disadvantages
Look at the statistics and determine if FDI can be used as a means of growth or not.

lOMoARcPSD|34683058
Law and Gov

8/11/17
Notes continued
In Guyana’s constitution 1996 the right to work is highlighted in section 22, section 24
speaks to the right of every citizen to free medical attention, section 26 right to proper
housing accommodation, section 27 every citizen has the right to free education from nursery
to university.
Belize’s constitution section 15 protects the right to work, no person shall be denied the
opportunity to gain his/her living by work that he/she freely chooses or accepts.
A further note on Justiciability

● Means that provisions can be enforced in the court as a legal right
● It is argued that it would be difficult to manage this economic and social rights
through the judicial process.
● Courts are not competent to determine the source allocation.
● Vagueness of some provisions in the treaty eg. The right to an adequate standard of
living.
● There is a difficulty in the implementation of the court’s decision is seen as an issue
due to the need of resources.
● Note the optional protocol to the ICESCR allowing for individual petitions to a
committee and some argue that rights do not have to be vindicated in courts and this
process makes the rights more justiciable.
● Some argue that the rights should be treated in the same manner as civil and political
rights because they are interrelated.
● Many rights in the ICESCR are also dependent on resources.
The economic and social rights should not be ignored, they do make sense in a Caribbean
context.
Decriminalization of Marijuana
In 2015 Jamaica amended its dangerous drugs act allowing for the decriminalization of
Marijuana in Jamaica. Note that this is decriminalization and note legalization.
Decriminalization means that certain aspects will no longer attract criminal sanctions, but the
other aspects would still attract criminal sanctions. It is important to place the 2015
amendment to the dangerous drugs act in its proper context with reference to the
recommendations of the Chevannes Commission in 2001 and the arguments in the debate
concerning decriminalization that are now reflected in the amendment.

lOMoARcPSD|34683058
The recommendations of the Chevannes Commission/ National Commission on Ganja

2001
▪ That commission recommended that Ganja be decriminalized for the private personal
use of small quantities by adults and also for use as a sacrament for religious purpose.
▪ Decimalization however should exclude smoking by juveniles or by anyone in
premises accessible to the public.
▪ It recommended an education programme to reduce demand for Ganja targeting
mainly young people.
▪ They should be a cannabis research agency in relation to all aspects of ganja.
▪ Jamaica should embark or diplomatic incentives to gain support for its position and to
influence the international community to re-examine the status of Ganja.
▪ The security forces should increase their efforts to prevent large scale production of
Ganja.
Some of the main arguments in the Ganja debate which were reflected in the 2015
amendment would be the arguments for decriminalization and against.
Arguments For
❖ Medical uses of ganja, chronic pain, glaucoma.
❖ Criminalization for personal use diverts the justice system to fighting more serious
crimes.
❖ Many persons now have criminal records for small amounts of ganja.
❖ Religious arguments you should be free to practice your religion eg.in the case of
Rastafarians.
❖ Economic reasons in that it can create improvement in the economy by reducing
health cost. Cultural practice used by Jamaicans with beliefs deeply rooted in their
culture.
Arguments Against
❖ Ganja can have adverse effects on the brain.
❖ Decriminalization of Ganja is a gateway for other drugs.
❖ Can lead to social problems as there will be greater access to it by teenagers.
❖ Decriminalization of Ganja may lead to a breach of a number of international treaties.
Amendments to the dangerous drugs act 2015

Note the amendments to the act brought significant changes and there are new provisions
concerning smoking and possession of Ganja. Possession of Ganja is not an offense if you
have 20 ounces or less, so there would be no criminal records. (Note the Chevannes

lOMoARcPSD|34683058
commission’s recommendation private small amounts for use.). However a ticket might be
issued by the police to a person with 20 ounces or less of Ganja, such a person has 30 days to
pay the amount of $500 at any tax office.
o If you are under the age of 18 and found in possession of 20 ounces or less and if
you are over the age of 18 and appear to the police to be dependent on ganja you will
be referred to the national drug abuse for counselling plus paying the ticket
(Chevannes wanted to exclude juveniles from smoking)
o Possession of over 20 ounces of ganja remains a criminal offense for which you can
be arrested and charged and if convicted you will have a criminal record.
o Rastafarians may possess ganja for religious purposes as a sacrament ( Chevannes
advocated for this)
o Ganja maybe possessed for medical and therapeutic purposes as prescribed by your
medical doctor.
o Possession of ganja for scientific research is allowed, if done by a tertiary institution
approved by the scientific research council (Chevannes spoke to cannabis research)
o No smoking of ganja in a public place or within 5 metres of place if you do so you
can get a ticket from the police and have 30 days to pay, exmples of public places-
educational institutions, bus stops, offices, hospitals, restaurants, sidewalks,
pharmacies etc.
o It is not an offense to smoke ganja in private places, but it must be done according to
the rules of possession of ganja ( 20 ounces or less)
o If you are convicted of failure to pay the ticket, that will result in a criminal record
and such an individual will be brought to the petty sessions court and you may have
to do community service or pay a fine of $2000.
Importing ganja for serious chronic illnesses

A person suffering from chronic illnesses eg. Cancer may import medicine containing ganja.
A medical practitioner would however have to certify the illness and must be done in
accordance to regulations. Ganja may also be imported for scientific research with proper
authorization.
Cultivation of Ganja
Cultivation of ganja by households is allowed up to 5 ganja plants. The issues arising from
the recommendations from the Chevannes commission where the use of ganja would not
have been allowd by possession because it would be illegal has now been addressed in the
amendments. However, you must keep within the specified amount. Ganja can be cultivated
for scientific research, Rastafarians may cultivate ganja with appropriate authorization.
Events to celebrate the Rastafarian faith can be declared an exempt event and persons there
will not be arrested or prosecuted for smoking ganja as long as they comply with the amount
specified in the order declared in the event exempt. Visitors to Jamaica who use medical
marijuana should apply for a permit to do so.

lOMoARcPSD|34683058
A cannabis licensing authority was created by the dangerous drugs act to regulate the ganja
industry and to issue licenses and permits, a percentage of the revenue earned from issuing
licenses will be used for public education to discourage the use of ganja by persons under 18
years and to fund scientific and medical research ( Chevannes commission had recommended
that there should be an educational programme for young people)
International Law perspective

This has always been a matter of concern for Jamaica note the Chevannes commission in
2001 stated that Jamaica was a party to a number of international treaties that deal with illicit
drugs and so careful accounts to be taken of Jamaica’s obligations under international law.
The three treaties are:
The single convention on Narcotic Drugs 1961
Convention on psychotic substances 1971
United nations convention against illicit trafficking of narcotic drugs and psychotic
substances 1988
Article 4 of the 1961 convention limits the use and possession of drugs exclusively to
medical and scientific purposes.
Article 36 sets out the provisions in relation to punishment for many activities such as:
cultivation, possession, production etc. it did not list use however and the Chevannes
commission felt that use was left out of the list they thought that decriminalization could
happen without contriving the convention.
Vacciani argued that is not possible to allow use but not possession.
In 2001 at the time of the Chevannes recommendations Jamaica was cautioned by the USA of
the possibility of decertification, sanctions would be applied to countries that were not
following the treaty. In recent times many states in the USA have decriminalized marijuana.
Medical marijuana states include: Connecticut, Delaware, Washington, and Colorado they
have also allowed nonmedical use.
Vacciani notes that the USA would be hypocritical to decertify Jamaica now for doing what
some American states have done without sanctions from the federal government.
Calls have been made by some countries for the treaties to be reviewed, most of the countries
in the world have not decriminalized marijuana and note that they are guided by the three
international treaties. The debate continues as to how the issue of decriminalization is to be

lOMoARcPSD|34683058
addressed at the international level from 2001 up to the 2015 amendments, Jamaica has been
mindful of these treaties as a result the 2015 amendments require the cannabis licensing
authority to ensure that regulations do not contravene Jamaica’s international obligations.

lOMoARcPSD|34683058
Week 10: Decriminalization of Marijuana I

In 2015, Jamaica amended its Dangerous Drugs Act, allowing for the decriminalization of
marijuana. Decriminalization means that certain aspects of the law will no longer attract criminal
sanctions. However, other aspects of the law will still be subject to criminal sanctions. Therefore
we have not legalized marijuana.
(Remember the story in 2015 of the man who was travelling with a trunk full of ganja who got
lost, and went to the police for directions—he said ‘them free up the weed now’ so he had no
reason to fear the police)
Prior to 2015, the Chevannes Commission of 2001/National Commission on Ganja had made
certain recommendations in relation to the decriminalization of marijuana. These
recommendations heavily influenced the 2015 amendments. The Chevannes commission
recommended that
(1) The relevant laws be amended so that Ganja be decriminalized for the private, personal use
of small quantities by adults. (Check OurVLE to see the full thing)
(2) Decriminalization for personal use should exclude smoking by juveniles or by anyone in
premises accessible to the public.
(3) Ganja be decriminalized for use as a sacrament for religious purposes.
(4) There should be a sustained educational programme intended to reduce demand for
marijuana, targeting mainly young people.
(5) The security forces should intensify their efforts to prevent large scale cultivation of ganja
and the tracking of all illegal drugs, particularly ‘crack’ and cocaine.
(6) A Cannabis Research Agency be set up in collaboration with other countries to coordinate
research into all aspects of cannabis. E.g its psychological effects and its economic potential.
(7) As a matter of great urgency, Jamaica should embark upon diplomatic initiatives with
CARICOM and other countries, to gain support for its position and to influence the international
community to re-examine the status of marijuana.
The commission made some other recommendations which will be referred to next week. The
commission noted that Jamaica was a part of a number of international treaties (3). We have to
ensure that we do not breach the treaties. Prof Vasciannie talks about it being unreasonable to
have use decriminalized, but not possession of marijuana because one necessitates another. The
amendments made in 2015 address some of these issues. We will discuss this more in detail next
week.
While on her way to the lecture, miss overheard Jack and Jill talking about the upcoming exam
(November 30).

lOMoARcPSD|34683058
Jack noted that it is the custom to have two sections: Section A and section B. And we are to do
three questions—but you must not do the three questions from one section. You must do at least
one question from each section.
Jack believes that section A will have these topics:
Hierarchy of Courts & Judicial Precedent OR CCJ Vs. The Privy Council (one or the other, not
both—you cannot do both)
Abortion
Death Penalty
Economic, Social and Cultural Rights
Jane believes that in section B, these are the topics:

Globalization OR Foreign Direct Investments
CRIME
Regional Integration

lOMoARcPSD|34683058
Globalization:
Globalization is a process of economic expansion across national boundaries. It
--Also involves the global liberalization of markets
The three main supporting structures of globalization are:
(1) Trade
(2) Investment and Technology
(3) The financial System
Globalization has been facilitated by the following:
(1) The Telecommunications revolution—we can bring buyers and sellers together easily.
(2) Rapid advancement in Information Technology (give examples—Internet, Cellphones, Email)
(3) Improvements in transportation by sea and air—this allows for the movement of bulk
commodities at cheaper rates and the movement of people
(4) The development of regional trading arrangements (e.g CARICOM)
Globalization and the economy:

At the domestic level, globalization requires changes which include structural adjustments—changes in
policy implemented by the IMF, trade and financial liberalization (which is the opening up of markets).
Also, the effects of globalization on small economies include:
(1) Dismantling of the system of preferences which small Caribbean economics traditionally benefit
from. These companies depended on preferential market access schemes, for example: in relation
to commodities such as banana and sugar.
(2) Flood of imports into developing countries. These goods are cheaper as the developed countries
have the required technology to produce….
(3) The dominance of multinational corporations (MNCs/foreign investors). While foreign investors
create some amount of employment, the bulk of their profits are repatriated to their home country.
(4) The World Trade Organization (WTO) rules are such that governments cannot compel foreign
investors to hire local workers or use local products.
(5) Greater competition: Caribbean producers face more intense international competition and will
have to develop new products.
In order to survive in the global market:
● Countries must improve their competitiveness and productivity.
● Countries must transform their economies and export more to generate foreign exchange.
● To derive maximum benefits, education is necessary for economic transformation.
● Investment in human capital will be essential to survive in the global economy.
Impact of Globalization on Culture

lOMoARcPSD|34683058
Some argue that globalization can lead to an erosion of culture. The internet and travel expose people to
different cultural expressions. Globalization can affect a country’s fashion, music, and even the language,
and what we eat. However, on the other hand Caribbean culture is able to reach the rest of the world.
Impact of Globalization on Crime

Some argue that a culture of violence is transported to the Caribbean which contributes to rising
crime. People are able to move more freely and they bring various patterns of behavior, which can also
lead to crimes such as: human trafficking (add more, drug trafficking, money laundering). Some argue
that globalization has led to the growth of the narco-economy (drug trade).
With the increase in international trade, there is also an increase in the trade of criminalized
commodities such as weapons.
Globalization and Employment

Those who support globalization argue that poverty has decreased worldwide over the last two decades.
Critics of globalization argue that the rich are getting richer, and the poor are getting poorer.
Some are of the view that globalization leads to job creation, but others argue that it can also lead to job
losses.
There are also poor working conditions and in order to produce cheap goods, safety standards are
breached.
Globalization can also lead to brain drain: the highly skilled professionals migrate. This can affect a
country’s human capital. Note that the country which they move from can benefit from remittances. In
2010, Caribbean countries lost 10-40% of their labour force due to migration to OECD countries.
(Organisation for Economic Co-operation and Development)
Globalization and the Environment.

Climate change, air pollution and overfishing of the oceans are linked to globalization. Also note the
harmful impact of foreign direct investment on the environment. (go find as many examples as you can)
Globalization and Human Rights

Note the power of multinational corporations (MNCs) and their potential to promote/undermine respect
for human rights. There have been instances of child labour, discrimination and risks to health and life.
There is a need to ensure that the activities of multinational corporations are consistent with human rights
standards.

lOMoARcPSD|34683058
Globalization and Politics.

Globalization can impact sovereignty, and it can limit a country’s ability to make its own policy
decisions. Globalization is said to be a new form of colonization with stronger and more powerful
countries imposing their will on weaker states (countries). Political activity is no longer restricted to one’s
national borders. Note the role of international organizations such as the IMF, and the World Bank. The
IMF now provides policy advice in relation to the economy and will also set out a number of
conditionalities for lending. Therefore, a number of conditions are to be met before the IMF will provide
financial resources. It has been argued that the IMF conditionalities undermine the local political
institution.
Note: It is your role to assess the role of globalization in your country. Is globalization is a blessing, or a
burden? Examiners like to hear about your viewpoint. So have some analytical input rather than just
regurgitate arguments that others have had.

lOMoARcPSD|34683058
Law and Gov

15/11/17
NB Bicameral Legislator- has two houses of legislator.
Political tribalism- unswerving loyalty to a political party, this can lead to garrison
communities.
Medical termination of pregnancy act – Barbados and Guyana have this.
Foreign Direct Investments

This involves the transfer of assets from one country to another to generate wealth. There is
no multilateral treaty that exclusively governs foreign direct investments (FDI).
There are however many bilateral investment treaties, and these are usually between
developed and developing countries. These treaties cover a wide range of activities eg. In the
hotel industry and the telecommunications sector etc.
Investment relations between states will take into consideration many factors eg. Market size
(market for the product), availability of raw material, the presence of a skilled work force,
good infrastructure (roads etc), whether there is a treaty based legal region.
This regime will give investors assurances as to the safety of their investments. Investors will
also consider the ease of doing business in the country.
In 2016 Jamaica ranked 64th in the world in relation to the ese of doing business, however in
2017 we have slipped to 70 out of 190 countries (check gleaner or observer).
These bilateral investment treaties are agreements establishing the terms and conditions
governing private investments by individuals or companies (capital exporting) into a
developing country (capital importing).
The country the investor comes from is called the home country and the country he/she
invests is called the host country.
A typical bilateral investment treaty contains the following provisions:
1. Treatment standards
Foreign investors are entitled to the same treatment and benefits as national companies, this is
called national treatment. Also, each investor is entitled to the same treatment as
investors from other countries and this is called “most favoured nation treatment” this
means that there should be no discrimination and no country must be treated more
favourably. Generally, all investors are entitled to fair and equitable treatment (justice
and transparency). Treatment standards of full protection and security.

lOMoARcPSD|34683058
2. Expropriation/ Naturalization
The host state should not expropriate or nationalize foreign investments unless for a public
purpose and in a non-discriminatory manner (if the host country nationalizes one
investors investment or property then you should do so for all others).
3. Compensation
If you take over the property you must compensate. Where expropriation/ naturalization is
undertaken, host state must pay prompt (pay immediately), adequate (pay at the
market value), effective (pay in an appropriate currency).
PAE- prompt, adequate, effective.
That form of compensation is referred to as the HULL formulae, this is the standard that
developed countries have followed.
Developing countries on the other hand argue for appropriate compensation taking into
account all the relevant factors.
4. Free Currency Transfer

The host state shall permit all transfers to be made freely and without delay into and out of its
territory and in a freely usable currency.
Some bilateral treaties regulate this transfer and allow it to be done a phased basis (can do it
in phases) eg. 20% in first year then next 20% in another till the transaction is
complete.
5. No performance requirements
There should be no performance requirement imposed by the host state eg. The host state
cannot force investors to employ local people or use local products. Also, the host
state cannot insist that foreign investors must achieve a certain level of production or
export a percentage of his production.
It is argued that this provision is skewed against the interest of developing countries.
Developing countries should ensure that investments provide some value to their economy.
They should negotiate as the developed country may be willing to compromise and
make changes to their model text.
6. Third party dispute settlement

Disputes between the foreign investor and the host state should be resolved by 3rd party
arbitration and not by the courts of the host states. However, some arbitration
provisions recognised the local remedy rule and investors are to exhaust all local
remedies before resorting to international remedies.

lOMoARcPSD|34683058
Note that these provisions reflect the perspective of developed countries some argue that
CARICOM countries have accepted the terms of these bilateral treaties and in some cases
with minimal changes, and as a result we are now parties to agreements that uphold the
perspective of developed countries.
Advantages and Disadvantages of FDI
ADV
● Investors help to develop resources which owing to the lack of capital and technology
the host country would not have been able to develop eg. Bauxite and oil industries.
● Job creation, provide employment and this leads to human development in the host
country.
● Transfer of skills and technology.
● FDI allows for the development of infrastructure eg. Roads, airports etc.
● Provides for economic diversification, new markets and a wider variety of goods to
choose from eg. Cable and Wireless had a monopoly, but others came in like Digicel
to give us choices.
● Helps to create a more competitive business environment, this competition forces
local industries to offer better products and services.
● It aids in community development through participation in social programmes eg.
Digicel supports Sports, rising stars, making laboratories in high schools. Bank of
Nova Scotia provides scholarships.
● Establishes lasting economic relations
DISADV
● Harmful environment impact eg. Bauxite (dust), goat island (they wanted to establish
a transhipment port).
● Erosion of culture because of the mixing of culture we adopt the new one and forget
our own.
● Repatriation of profits, profits are sent back to the home countries.
● Employment is created by the jobs are low paying.
● Technology that is transferred is often inappropriate, outdated and ineffective.
● Poor working conditions is a breach of human rights.
● The local industries are sometimes crippled by the competition.
● Corporations pull out when conditions no longer suite them eg. We give them tax
holidays, so they want to come and when that ends they leave.
● There is improper interference in internal politics and see the dependence on foreign
investors as a loss of political sovereignty.
Statistics
In 2007 FDI across the globe rose by 30% about a quarter of that went to Latin America and
the Caribbean, Trinidad and Tobago enjoyed the highest inflows because they brought in over

lOMoARcPSD|34683058
US$1 billion while Jamaica attracted US$866 million because of mining, information
technology and the tourism sector.
In 2015 FDI flows to the Caribbean retreated by 12% and this time it was led by a sharp
decline in Trinidad and Tobago due to lower oil prices, in Jamaica however the rise of
inflows at 34% was associated with activity in the hotel sector as well as infrastructure eg.
Chinese have built roads and business processing outflows/ call centres.
EXAMINATION TOPICS
10 questions in 2 sections
Answer three questions in 2hrs
At least answer 1 question from each section
Section A
1. Assorted question
2. Hierarchy of courts and doctrine of judicial precedence
3. Death penalty
4. CCJ vs Privy Council Debate
5. Abortion
Section B
6. Foreign Direct Investment
7. Globalization
8. Decriminalization of Marijuana
9. Crime and Development
10. Economic, social and cultural rights

lOMoARcPSD|34683058
In 2015, Jamaica amended its dangerous drugs act, allowing for the decriminalization of marijuana.
Decriminalization means that certain aspects will no longer attract criminal sanctions, however,
other aspects of the law will still be subjective to criminal sanctions. Therefore, we have not
legalized marijuana. Prior to 2015, the Chevannes Commission/ National Commission on Ganja of
2001 had made certain recommendations in relation to the decriminalization of marijuana in
Jamaica and these recommendations heavily influenced the 2015 amendments.
The Chevannes Commission recommended that:
● The relevant laws be amended such that ganja be decriminalized for the private, personal
use of small quantities by adults.
● Decriminalization for personal use should exclude smoking by juveniles or by anyone in
premises accessible by the public.
● Ganja should be decriminalized for use as a sacrament for religious purposes.
● There should be a sustained educational program intended to reduce demand for marijuana,
targeting mainly for young people.
● The security forces should intensify efforts to prevent large-scale cultivation of ganja and
trafficking of all illegal drugs particularly crack and cocaine.
● A Cannabis research agency be set up in collaboration with other countries to coordinate
research in all aspects of Cannabis (for example, its psychological effects and economic
potential).
● As a matter of great urgency, Jamaica should embark upon diplomatic initiatives with
CARICOM and other countries to gain support for its position and to influence the national
community to re-examine the status of marijuana.
The Chevannes Commission noted that there were international treaties that Jamaica was a party to
and is Jamaica was not to isolate itself from the international community, it had to take careful
account of its international obligations.
The 2015 Amendment to the Dangerous Act in Jamaica
Note that the dangerous Drug Act was amended in 2015 and it brought significant changes. There
were new provisions concerning the smoking and cultivation if ganja as well as its possession.
Possession of Ganja
It is no longer a criminal offence for which you can get a criminal record if you posses 2 ounces or
less of ganja. However, a ticket may be issues by the police to a person in possession of 2 ounces or
less of ganja and such a person would have 30 days to pay the amount of $500 to the tax office.
Persons under 18 in possession of 2 ounces or less and who appear to be dependent on ganja will be
sent to the National Council on Drug Abuse for counselling plus paying the ticket.
Possession of over 2 ounces remain a criminal offence for which you can get a criminal record.
Rastafarians may possess Ganja for religious purposes as a sacrament. Ganja may be possessed for
medical and therapeutic purposes as prescribed by a medical doctor. Possession of Ganja is allowed
for scientific research which must be carried out by a tertiary institution.

lOMoARcPSD|34683058
Smoking of Ganja
Ganja should not be smoked in a public place or within 5 meters of a public place. If you smoke in a
public place you may be issued a ticket which should be paid to the tax office within 30 days (same
$500). Examples of a public place include: educational institutions, hospitals, supermarkets, libraries,
etc. Smoking in a privately occupied residence is not an offence but is governed by the
‘2-ounce-or-less’ rule for which you can be ticketed. Rastas can be allowed to smoke in areas
registered for worship.
If you fail to pay the ticket, such a person would be brought before the Petty Sessions Court and may
have to d community service. If that cannot be arranged, then the person would have to pay a fine
of $2000. Note: If you are convicted of failing to pay a ticket, that will result in a criminal record.
Cultivation of Ganja
● Each household can legally grow no more than 5 ganja plants. Also, ganja can be cultivated
for scientific research with the appropriate authorization.
● Rastafarians can cultivate ganja for religious purposes with appropriate authorization, and
such ganja should be smoked at places registered for worship.
● Events to celebrate the Rastafarian faith can be declared as an exempt event and persons in
attendance cannot be arrested or detained for smoking ganja. They must however comply
with the amounts specified in the order declaring the event exempt.
● Visitors to Jamaica who use medical marijuana may apply for a permit to allow them to
lawfully purchase and possess up to two ounces.
● There will be a Cannabis licensing agency to regulate the Ganja Industry and that authority
will issue licenses. The authority is also mandated to ensure that regulations do not
contravene Jamaica’s international obligations.
The penalties have been increased in the Dangerous Drugs Act for the export, cultivation and selling
of drugs.
Based on the amendments, note that ganja smoking, possession and possession have been
decriminalized in Jamaica but the prescribed allowances must be followed. Ganja can be used for
religious, medical and research purposes with the appropriate authorization. Note that the use of
ganja may have negative effects on the body and it is argued that it may be contributing to traffic
accidents. Therefore, there should be ongoing public education on the possible impact and effects
that may arise from use of ganja.
Arguments for Decriminalization:
● Medical uses of Ganja

● The right to privacy
● It is a practice rooted in the culture of the people.
● Decriminalization will improve the relationship between citizens and the police.
● Criminalization for personal use diverts the justice system from fighting more serious crimes.
● Religious purposes (significance to Rastas).
● Economic reasons: it can improve the economy, reduce health costs and boost tourism.
● Tobacco and alcohol are legal and ganja is less harmful.

lOMoARcPSD|34683058
Arguments Against Decriminalization:
● Ganja can have adverse effects on the brain.

● Decriminalization of ganja is a gateway for the use of other drugs.
● It can lead to social problems among the youth.
● Decriminalization may lead to a breach of international treaties.
Some countries, including Canada, some states in America, have legalized ganja.
The recommendations of the Chevannes Commission also heavily influenced the amendments to the
Dangerous Drugs Act in 2015.

lOMoARcPSD|34683058
Possession of Ganja
N.b Ganja has not been legalized, only certain aspects of the law have been de-criminalized.
If a person is caught with less than 2 ounces of ganja they can be ticketed. Such a person would have 30
days to pay the amount of $500 to the tax office. Persons who appear to be under-age who appears to
the police to be dependent on ganja will be sent to the National Council on Drug Abuse for counselling.
(Govt did not issue ticket books for marijuana)
Possession of over two ounces will remain a criminal offence for which you can get a criminal record.
Rastafarians may possess ganja for religious purposes as a sacrament.
Ganja may be possessed for medical and therapeutic purposes as prescribed for by a registered medical
doctor.
Possession of ganja is allowed for scientific research which must be carried out by an approved tertiary
institution (e.g the UWI).
Smoking of ganja
Ganja should not be smoked in a public place or within 5 metres of a public place. The same rule applies:
you may be ticketed if caught smoking ganja in a public place, and you will be fined $500 with 30 days to
pay it at the nearest tax office.
Examples of a public place include: Educational institutions, Bus Stops, Restaurants, Offices, Hospitals,
Supermarkets.
Smoking in a privately occupied residence is not an offence but is governed by the 2 ounces or less rule,
and one may be ticketed. Rastafarians will be permitted to smoke at locations registered for worship.
If a person fails to pay the ticket, then such a person would go before the Petty Sessions Court and
required to do Community Service. If that cannot be arranged, then said person would have to pay a fine
of $2000. Note, if you are convicted for failing to pay a ticket, that will result in a criminal record.
Cultivation of Ganja.
Each household is allowed to legally grow no more than 5 ganja plants. Ganja can be cultivated for
scientific research with the appropriate organization.
Rastafarians may cultivate ganja for religious purposes. Such ganja must be smoked at places registered
for worship.
Events to celebrate the Rastafarian faith can be declared an exempt event. Persons in attendance will
not be arrested or detained for smoking ganja. They must however comply with the amounts specified,
to declare the events exempt.

lOMoARcPSD|34683058
Visitors to Jamaica who use medical marijuana (marijuana for medical purposes) may apply for a permit
to allow them to lawfully purchase and possess up to two ounces.
There will be a Cannabis Licensing Agency responsible for issuing licenses. It is to ensure that the
licenses do not contravene our international obligations. Also, the penalties have been increased in the
DDA for export, cultivation and selling of drugs.
Note that Ganja Possession, Smoking have been decriminalized in Jamaica, but the prescribed
allowances must be followed.
Ganja can be used for religious, medical and research purposes with the appropriate authorization.
Note that the use of ganja may have negative effects on the body, and it is argued that it may be
contributing to traffic accidents. Therefore, there should be ongoing public education on the possible
impact and effects that may arise from use of ganja.
Arguments for Ganja:
-Medical use
-Right to privacy
- Cultural practice; rooted in the culture and beliefs of the people
- Decriminalization will improve relationship between citizens and the police.
-Criminalization for personal use diverts the justice system from fighting more serious crimes.
- Religious practices
-Economic reasons
-Reduce health costs
-Boost tourism
- Tobacco and alcohol are legal and ganja is less harmful.
Arguments against Decriminalization:
- Ganja can have adverse effects on the brain

- Decriminalization of Ganja is a gateway for the use of other drugs.
- Can lead to social problems
- Decrim. Can lead to a breach of a # of international treaties

lOMoARcPSD|34683058
Some countries have legalized marijuana:
Canada
Many states in USA with medical marijuana; some allow for recreational purposes
Note: The recommendations of the Chevannes Commission also heavily influenced the amendments to
the DDA in 2015.
Final Point: Please read chapter 10 in Arguments and Facts by Prof. Steven Vasciannie. It deals with
aspects of Caribbean Regionalism.

lOMoARcPSD|34683058
Final Point: Please read chapter 10 in Arguments and Facts by Prof. Steven Vasciannie. It deals with
aspects of Caribbean Regionalism.
Regional Integration:
■ A process whereby countries come together and collaborate on areas of regional interest. E.g
the European Union (EU) and Caricom.
■ Regional integration is often challenged by the independent interests of its members as some
countries take a nationalistic perspective.
■ In the Caribbean, the challenges to regional integration are evident in relation to the free
movement of persons within the region.
■ There are also challenges to integration in Europe—note the withdrawal of Britain from the E.U,
referred to as ‘BREXIT’. The United Kingdom (UK) voted in June,2016 to leave the E.U. Their
withdrawal is to take effect in March 2019
■ It is argued that the BREXIT vote was a protest inter alia, against immigration and in favour of
sovereignty. Migration inflows were seen as a threat to their culture and economy. (Recall
persons can freely move within the region—they believed persons were coming into their
borders, taking away their jobs, causing unemployment to rise and negatively impacting the
economy)
■ CARICOM was preceded by earlier attempts at integration and Caribbean integration has its
roots in the West Indian Federation that was formed in 1958 and which ended 4 years later in
1962. The goals of the federation points to the strength of integration, i.e
1. to gain maximum bargaining power internationally,
2. to pool the resources of the different islands,
3. to remove the barriers to trade and
4. To facilitate the free movement of people
However, there were many challenges and Jamaica was the first to withdraw in 1961 followed
by Trinidad and Tobago. Prof. Vasciannie terms Jamaica’s withdrawal from the Federation, ‘Jamaica’s
Brexit’.
After the collapse of the WIF, there was still the need for co-operation. This led to the
establishment of CARIFTA which was followed by CARICOM in 1973. It was established with the signing
of the treaty of Chaguaramas. This treaty was later revised and in 2006 the Revised Treaty came into
force and aimed to deepen integration and to establish a single market and economy.
CARICOM rests on 4 pillars:

(1) Economic Integration
(2) Foreign Policy Coordination
(3) Human and Social Development
(4) Security

lOMoARcPSD|34683058
There are fifteen (15) member states of CARICOM. Acc. Vasciannie, CARICOM seeks to achieve improved
standards of living, full employment, trade expansion, improved productivity, and greater foreign policy
coordination.
Note that the organizations and institutions that CARICOM has set up include:
The CCJ, and the CDB. Now at the heart of economic integration is the CARICOM Single Market and
Economy (CSME). The CSME allows for goods, people, capital, and services to move throughout the
region across all member states without tariffs or restrictions. Vasciannie notes that the Revised Treaty
provides that university graduates, media workers, sports persons, musicians, artistes shall be accorded
the right to seek employment in all CARICOM countries.
In relation to trade, as part of the single market, CARICOM states have a Common External Tariff (CET)
on goods imported from non-member states into CARICOM.
In relation to dispute settlement mechanisms within CARICOM, these will include the original
jurisdiction of the CCJ.
Strengths of Regional Integration
The rationale behind the CSME is that:
(1) It provides more economic and political strength, as well as

(2) A better chance of survival at the negotiating table and it
(3) Facilitates an improvement in services and more competitive products.
Challenges faced by CARICOM:
There are differences in economic development within the region and challenges to free movement
within CARICOM e.g cases where Jamaicans have been denied entry into countries such as Barbados as
well as Trinidad and Tobago; note the Shanique Myrie v. Barbados case
Other challenges facing CARICOM are: (acc. Vasciannie)
(1) Limited contact

(2) Underdeveloped transport services
(3) Single Economy aspect has not yet been fulfilled
(4) Free Trade Issues (e.g barriers to entry for Jamaican goods into the T&T market). Jamaicans
argue that T&T gives advantages—economic in nature—to its nationals in contravention of the
non-discrimination principles in the Revised Treaty of Chaguaramas.
Based on the foregoing—notwithstanding the regional strengths of the Caribbean—it is evident that
from Europe to the Caribbean, regional integration is facing a number of challenges.

lOMoARcPSD|34683058
CLASS IS OVERRRRR!!!]

Law and Gov Notes Merged

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Law and Gov Notes Merged

Uploaded by

Copyright:

Available Formats

lOMoARcPSD|34683058

Law and gov notes - merged

Scan to open on Studocu

Studocu is not sponsored or endorsed by any college or university

There are instances where rules of law

Downloaded by Britanya Jones (britanyaj17@gmail.com)

Advantages and Disadvantages of Precedents

Downloaded by Britanya Jones (britanyaj17@gmail.com)

Methods by which the laws were created.

Common Law (Case Law/Judge-made Law)

● Body of rules developed overtime by judges during resolving disputes.

The two types of Stare decisis

These are principles in a case that a judge must follow

Courts may avoid precedents in certain cases:

Adv. & Disadv. Of Precedents

Downloaded by Britanya Jones (britanyaj17@gmail.com)

Adv. Legal certainty and assists the legal decision-making process

Key features of our constitution include:

Adv. ​It is simpler to read and easily understood

❖ Supremacy - ​ any law that challenges the constitution will be void

Safeguarding judicial independence

Downloaded by Britanya Jones (britanyaj17@gmail.com)

Downloaded by Britanya Jones (britanyaj17@gmail.com)

Week 2: Sources of Law II Sept 12, 2018

Public vs Private Law

B. Civil Law: This constitutes of disputes between private individuals. In

Downloaded by Britanya Jones (britanyaj17@gmail.com)

Downloaded by Britanya Jones (britanyaj17@gmail.com)

Downloaded by Britanya Jones (britanyaj17@gmail.com)

Law & Gov 20/09/17

Sources of law continued

Downloaded by Britanya Jones (britanyaj17@gmail.com)

The hierarchy of Courts

1 Petty Sessions Court

On looking at the hierarchal structure you should note the following:

Downloaded by Britanya Jones (britanyaj17@gmail.com)

Offences seen in Petty Sessions

In its civil jurisdiction, civil matters include:

Downloaded by Britanya Jones (britanyaj17@gmail.com)

NB ​Probate is issued when a will has been proven real.

Downloaded by Britanya Jones (britanyaj17@gmail.com)

Downloaded by Britanya Jones (britanyaj17@gmail.com)

Parish Court/ The Resident Magistrate’s

The Supreme Court

The Court of Appeal

The Privy Council

Petty Sessions Court

Downloaded by Britanya Jones (britanyaj17@gmail.com)

N.b: The same holds for the senior Puisne Judge.

1. The Revenue Court est. 1971 (Taxes)

Downloaded by Britanya Jones (britanyaj17@gmail.com)

3. Western Regional Gun Court early 2000s.

(1) Agree with the ruling from the inferior court.

Downloaded by Britanya Jones (britanyaj17@gmail.com)

Downloaded by Britanya Jones (britanyaj17@gmail.com)

Downloaded by Britanya Jones (britanyaj17@gmail.com)

Downloaded by Britanya Jones (britanyaj17@gmail.com)

Downloaded by Britanya Jones (britanyaj17@gmail.com)

Caribbean Court of Justice (CCJ)

● Caribbean Court of Justice (CCJ) is located in Trinidad & Tobago.

Arguments In The Privy Council vs. CCJ Debate

Downloaded by Britanya Jones (britanyaj17@gmail.com)

Location of the Privy Council & the Issue of Bias

Adv. It is simpler to read and easily understood

❖ Supremacy - any law that challenges the constitution will be void

NB Probate is issued when a will has been proven real.

Issue of a Referendum (pl. referenda)

(1) There is an independent appointment process.