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Sources of Lawa) Constitutional LawThe constitution is the most important source of law in any country. It consists of the rules that emanate from the political will of the people of that country. There are many features that make a constitution the highest source of law.(Taken into custody -&gt...

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Sources of Law

a) Constitutional Law The constitution is the most important source of law in any country. It consists of the rules that emanate from the political will of the people of that country. There are many features that make a constitution the highest source of law. (Taken into custody -> 24 Hrs (If more time is needed, 72 Hrs)

1. Codification: In most countries the constitution is codified or written. There are probably only 3 countries without a written constitution. A codified constitution allows for easy access and for certainty however it is difficult to change. Unwrittten/codified constitutions are living and flexible and can be more readily changed. 2. Supremacy: Every constitution declares itself to be the highest law of the land. There is usually a supreme law clause in the constitution which says that the constitution is the highest law and any other law that conflicts or is inconsistent with the constitution is void to the extent of the inconsistency. Where supremacy operates, parliament can only exercise the powers given to it by the constitution the supreme court has the power to declare laws unconstitutional and the court also has the power to resolve conflicts regarding the constitutionality of governance action. 3. Judicial Independence: The constitution protects judicial independence by stipulating rules regarding the appointment, tenure and removing judges from office 4. Fundamental Rights: Each constitution contains a bill of rights or charter of rights that details the rights and freedoms of the citizens of that country. The rights are not absolute; limitations are placed on the enjoyment of the rights so as to protect the rights of others. Where rights are breached, citizens can see redress in the courts. 5. Separation of powers: The constitution determines how state power is distributed among the arms of government and how persons become members of the different arms (Judiciary, Legislation- Parliament(Bi-camaral = 2 Parties, Uni-camaral = 1 Party), Executive- PM and cabinet -> Policy Making). This says that the arms of government must be separate in terms of personnel and function. In our countries there is only partial separation of powers because the executive is selected from the legislator. 6. Savings law Clause: This is a clause that allows countries to continue to use all the laws that they had before independence until those laws are changed by the country.

7. Entrenchment of provisions and special mechanisms for amendment: Provisions in the constitution are either ordinary provisions or entrenched provisions. Changing an ordinary provision requires a simple majority vote in parliament ie. 50% + 1 of the members. Changing an entrenched provision requires a special majority vote ie. 2/3 of the members and sometimes referendum.

b) Common Law Common Law is also called Case Law, which is generated through the courts. The common law is applicable in three situations. That is; 1) when there is no other law, 2) when there is insufficient law (Gender change cases eg. Differences on Identification) or 3) when there is law but it needs interpretation (Dual citizenship cases). A central notion of the common law is the doctrine of “stare decisis” or judicial precedence. It means that the lower courts are bound by the decisions of higher courts in their system of courts. There are two types of precedents; 1) Binding Precedents: Those that courts are bound to follow because of the similarity in the facts There are 4 ways to avoid binding precedents; a) Distinguishing the precedent: The judge has to show that there is a significant and material difference between the facts of the precedent and the facts before him b) Overruling the precedent: The judge has to show that the precedent is no longer relevant because parliament has created laws to deal with the particular issue c) Reversing the precedent: The judge has to show that the correct law was applied but the result was wrong or unreasonable d) Creating a 1st impression decision: Simply the creation of a precedent 2) Persuasive Precedents: Those that a court uses for guidance. The persuasiveness of a precedent depends on the date of the precedent (more recent = favourable), the country from which the precedent comes, the level of court that created the precedent, and the reputation of the judge who made the precedent.

c) Legislation Legislation is created by parliament by virtue of a power given to parliament by the constitution to make laws for the peace, order, and good governance of society. In making laws, parliament must ensure that it abides by the provisions of the constitution. Legislation generally serves the following purposes; 1) To change or revise rules of law 2) The consolidation of laws (pooling many laws dealing with one with one situation together) 3) To implement international treaties

There are 3 types of legislation 1) Acts of Parliament (Primary Legislation) -> eg. Road Traffic Act 2) Subsidiary Legislation (Regulations) -> details under established acts (eg. Darkness of car tint) 3) Autonomic Legislation -> rules created by specific bodies (created for self governance ie. Those that are doing such work know their own regulations and parliament cannot decide their regulations.

NB: Void ab initio – law treated as being void

d) International Law International Law is derived from international treaties and customary international law. Treaties are agreements between countries and may be bi-lateral or multi-lateral. State parties usually enter into treaties by signing and ratifying treaties. There is a principle in treaty law called pacta sunt servanda which means that treaty obligations must be kept. For treaties to have effect in a country they must be incorporated into domestic law. Customary international law is made up of unwritten rules of good behaviour among states. The rules are derived from constant and consistent practice. For a practice to become an international custom, it must be reflected in both state practice (what they articulate) and opinio juris (belief the state has, reflected in what they articulate).

Structure of the Court System

The Court system is essential to the administrative system of a country. The court structure in Caribbean countries consists of 4 or 5 levels depending on the country. (In increasing order) 1) 2) 3) 4) 5)

Petty Sessions Parrish Court/ Resident Magistrate High Court/ Supreme Court Court of Appeal Privy Council/ CCJ (Only Barbados, Guyana, Belize, Dominica have a CCJ as the top court)

NB: The CCJ has what is called an original (interprets CARICOM treaty) and appellate (appeals) jurisdiction. NB: Antigua and Greneda are against the CCJ being the final court. NB: Privy council and CCJ ruling is binding on all countries regardless on which country has gone to them. NB: A country is bounded only by the ruling made in their line of hierarchy. NB: Fine goes to the state and Claim goes to the individual

1) Petty Sessions Court Cases are heard by justices of the peace or by a parish judge. Cases must be brought within 6 months of the event. The kinds of cases include simple matters such as the use of indecent language, use of threatening language, use of caluminous language (foul but not bad words), failure to have a spirit license. The fine in the petty sessions court is a max of $2000. The max claim is $10,000. The max imprisonment is 3 months. Appeals from the petty sessions court are made to the Supreme Court. 2) Parish Court There are different sections of the parish court such as criminal court, civil court, family court, drug court, gun court, small claims court, traffic court, revenue court, and coroners court (conducts and inquest for suspicious death). Cases are heard by the parish judge (at least 5 years at the bar), prosecutions are done by the clerk of court or the office of the Director of Public Prosecution (DPP). Serves for one parish and 1 mile beyond that boundary line. The max fine in the parish court is $1mill in civil matters, 3mill for property matters. The max claim is $2mill. The max imprisonment is 5 years. Appeals from the parish court are made to the Court of Appeal. 3) The Supreme Court Cases are heard by a judge and in criminal cases (and some civil cases) there is also a jury. The prosecutions are done by the office of the DPP (Paula Lewellyn). The court hears all kinds of matters ( civil, criminal & constitutional matters) and can impose any fine, any sentence and allow any amount as a claim. Civil division – single judge no jury, Criminal division (Circuit Court) – judge and jury, and

Constitutional division – 3 judges. It can impose the death penalty. There are 32 judges that serve overall. The court moves in circuit at different times of the year. Appeals are made to the Court of Appeal. 4) Court of Appeal The Court of Appeal hears appeals from the Parish and Supreme Court. 3 judges usually sit to hear a appeal and in some cases there may be 5. The head of this court is the president. The head of the entire judiciary is the chief justice. The court has 3 options when it hears a matter/case; a) Agree with the ruling from below and allow it to remain b) Disagree with the ruling from below and substitute its own ruling c) Disagree with the ruling from below and return the case for retrial Appeals are made to the Privy Council or CCJ depending on the jurisdiction. 5) Privy Council 5 judges usually sit to hear the appeal. The privy council has the same options as the court of appeal when it hears a case. It hears appeals on every matter except election petitions. The privy council has the right to reverse or overrule its own decisions. Note that the privy council is not a court of 1 st instance. PRIVY COUNCIL & SUMN SUMN DEBATE

Fundamental Rights

Fundamental rights are those rights to which human beings are entitled simply because they are human beings. The rights are said to be interdependent, interrelated, indivisible, and inalienable. States/countries have an obligation to respect, protect, and fulfil human rights. Human rights have been formally articulated since the existence of the Universal Declaration of Human Rights. Since then the rights have been placed in international treaties such as the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), and the American Convention on Human Rights (ACHR) - regional. At the domestic level, each country has a constitution which makes provision for the rights of its citizens. NB: There are three generations of human rights; 1st Generation - Civil and Political Rights eg. Right to life, liberty, security of the person, freedom from arbitrary arrest and detention. 2nd Generation – Economic, Social & Cultural Rights eg. Right to education, health, work, a reasonable standard of living. 3rd Generation – Aspirational Rights eg. Right to a healthy environment, natural resources, self determination & the rights of minorities.

Vertical - State has duty to ensure citizens rights. Horizontally - Citizen has the responsibility to protect the rights of others. The rights of citizens are always restricted in the interest of public safety, public order, public health and public right. In Jamaica, the charter of rights restricts the rights of citizens where it is demonstrably justifiable in a free and democratic society.

Rights to Life

The ICCPR provides that every person has the inherent right to life and right not to be arbitrarily deprived of his life. ACHR provides the same thing except that it adds that the right generally begins from the moment of conception. In our respective constitution, the right to life is also protected.   

In Jamaica, it can only be taken away if its demonstrably justifiable. In Trinidad, only after due process. In Barbados, in one of the following circumstances; 1) As a result of self defense 2) To effect lawful arrest or prevent escape from lawful custody 3) To prevent an individual from committing a crime 4) The result of a lawful act of war 5) Where a court pronounces the death sentence

Question arises as to whether the death penalty is compatible to the right to life. International law does not prohibit the death penalty but it lays down certain rules for the application of the penalty. 1) It can only be applied for the most serious crimes (murder, treason) 2) It must be given by a competent court 3) The accused must have the right to seek pardon or commutation of sentence (change to life imprisonment) 4) It cannot be imposed for political offenses 5) Countries that abolish the penalty should not reinstate it 6) It cannot be imposed on minors, insane persons, persons over 70, and pregnant women The constitution does not prevent the application of the death penalty in Jamaica. The Offenses Against the Person Act says that the death penalty is one the penalties for capital murder which is committed in the following circumstances; a) Killing of a police officer, correctional officer, or any member of the security forces (in the line of duty or because of his office), judge, juror, justice of the peace, judicial officer or witness/ party to a case (pending or concluded). b) Murder for Hire (Assassination/ Contract Killing) c) Murder in furtherance or in the course of robbery, burglary, house breaking, sexual offense, terrorism, or arson d) Two or more counts of non capital murder (eg. Drive-by, killing more than 1 at the same time)

Juveniles, insane persons, pregnant women and women in general are exempt from the death penalty. Life imprisonment is a minimum of 20 years for capital murder, minimum of 15 years for non capital murder and in other cases, no less than 10 years. In criminal cases, including murder, the constitution provides for a right to legal representation. The death penalty has not been applied in Jamaica since 1988 because of certain rulings of the privy council.

1. Pratt and Morgan vs. Attorney General of Jamaica (1993) This case establishes the 5year rule. The privy council said, if the time between sentencing and execution exceeds 5 years, that that delay will amount to cruel and inhumane treatment, which is in breech of the accused person’s constitutional rights. Therefore, the sentence of death, would have to be commuted (changed from death penalty to life imprisonment). In Jamaica, in order to avoid the 5year rule the constitution was amended to state that no period of delay or condition under which an accused person is kept can prevent the state from carrying out a sentence of death.

2. Neville Lewis vs. Attorney General of Jamaica (2000) Privy council ruled that accused persons must be allowed to exhaust all channels of appeal available to them both internally and externally and the state must await the outcome of the appeal process.

3. Lambert Watson vs. Queen (2004) Privy council ruled that the mandatory death penalty for cases of capital murder, breached the doctrine of separation of powers because it gave the legislature the right to determine sentence which is a power reserved for the judiciary. As a result of this case, the penalty for capital murder was changed from the mandatory death penalty to include life imprisonment as an alternate penalty. Courts must now have 2 hearings in capital murder cases, one to determine guilt or innocence and another to determine sentence.   

Doctrine of Separation of Powers: each arm of government must have different persons in it and different jobs 2 hearings to determine under which circumstances, crime was committed

4. Evon Smith vs. Queen (2005) Privy council said that the provisions of the Offences Against the Person Act must be strictly interpreted and an accused should not be found guilty of capital murder unless his act falls within one of the capital murder circumstances. (I’ll explain the case for you later)

*Housebreaking - 6pm *Burglary – after 6pm

5. Pipersburg and Robateau vs. R (2008) The privy council laid down a 2-tiered approach that must be applied in cases of capital murder. The 1st tier in the approach, is that the penalty can only be imposed, in cases that are “worst of the worst”, “rarest of the rare”, “most extreme and exceptional”. In making this determination, the act of the accused must not be compared to civilized behaviour but rather with other murder cases the court has seen. The 2nd tier, is that the court must form the view that there is no reasonable prospect of reform of the offender and the only effective punishment, is the ultimate sentence of death. The character and circumstances of the offender should only be considered in they work in his favour.

6. Lockhart vs. Queen (2011) The privy council said that the report of a consultant psychiatrist is needed before the question of the possibility of the reform of an offender can be before a determination can be made.

7. Trimmingham vs. Queen (2009) The privy council stated that although the death was gruesome, it did not satisfy the 1st tier of the approach because some of the gruesome acts done to the victim occurred after he was already dead.

AG of Barbados vs. Josephs and Boyce (2006) (CCJ)

The CCJ upheld the 5year rule from the Pratt and Morgan case on the basis that accused persons have a legitimate expectation, that they will not be executed after 5 years have elapsed. The recognised, however that the death penalty remains as a form of punishment in many Caribbean countries

Abortion

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The ACHR suggests that once conception takes place, the fetus has the right to live. The constitution in Jamaica, states that any law which prevents abortion cannot be unconstitutional. Section 72 of the Offences Against the Person Act says that any woman who knows or believes she is pregnant and unlawfully takes any poison, noxious substance or uses any instrument or any other means with the intention of causing a miscarriage is guilty of a felony for which the penalty is life imprisonment, with or without hard labour. Section 73 of the same act says any person who supplies a pregnant woman with any poison, noxious substance, instrument or any other thing knowing that she needs it to cause her miscarriage is guilty of a misdemeanor for which the penalty is up to 3 years imprisonment. There is 1979 policy from the Ministry of Health that allows doctors to take a fetus in instances where the life or health of a woman is under threat. Rape is one of those experiences that put a woman’s health or life at risk. Health is both mental and physical.

Note the following cases under abortion; 1) R v Bourne (1939) -> England (MOST IMPORTANT) A doctor (Surgeon Dr. Bourne) performed an abortion on a 15 year old rape victim. It was done with the knowledge of her parents & in a proper medical facility. He was found not guilty of performing an unlawful (as found in Section 55) abortion because he acted in good faith to preserve the life of the woman and to prevent her from becoming a physical or mental ‘wreck’. The court said, the doctor did not have to wait until the patient was in peril of imminent death if, in his clinical judgement, her life or health was at stake. 2) R v Newton & Stungo (1958) -> England The court stated that abortions are illegal unless they are done in good faith to preserve the life or health of the mother. 3) Baby Boy Case (1981) –> US (Inter-American Courts of Human Rights) The court was asked to interpret article 4 from the ACHR. The court said, article 4 does not prevent domestic law that allows for abortion in exceptional cases such as rape, to save the mother’s life, or for other special reasons. 4) Roe v Wade (1973) -> US The court said that women have a right to abortion on the basis of privacy rights of the women. However, the woman’s right to privacy must be balanced against the interest of the state in the welfare of the fetus. Therefore; a) Abortions are available to women in the first trimester as long as it ...