Wed | Feb 21, 2018

Laws of Jamaica: 1962-2012

Published:Sunday | August 26, 2012 | 12:00 AM

By Martin Henry

The laws of a country reflect its character and direction and the issues confronted requiring legislative solution. I thought it would be a very interesting and useful exercise to examine the laws made by the legislature in independent Jamaica to see what may be discerned about the national character, about our direction over the first 50 years, and what were the issues for which legislative solutions were thought appropriate and necessary.

There are many others who are far better able to do this than I. But it could be an important project for Jamaica 50 and which could even spin off a couple of graduate research degrees.

I tapped diGJamaica, The Gleaner's new information service on things Jamaican, which has a section 'Legislation + Regulation + Gazettes'. My diG query was quickly responded to, and I was put in touch with the website of the Ministry of Justice (MoJ), which is now hyperlinked on diGJamaica.

The Jamaica Information Service also responded promptly directing me to the MoJ. But it was the ministry which swept me off my feet with sheer responsiveness and helpfulness. The ministry's website has a comprehensive, though incomplete, posting of the 'Laws of Jamaica'.

The list is, however, alphabetical, with no indication of the year in which the law was passed unless the year occurs in the title of the act itself. Could they help me locate the laws enacted between August 1962 and August 2012? Within hours, I had in my email inbox an extraction of laws in operation since 1962 up to 2009.

impressive service

I was directed to the website of the Houses of Parliament for more recent legislation. It is this kind of responsiveness and helpfulness which give the public service a good name in the midst of all the concerns about poor service.

I still need, though, for my project, a sorting of the laws by year passed rather than an alphabetic listing. The MoJ's people have assured me that they will work on this sorting feature.

Jamaica has a long history of lawmaking going back to the House of Assembly established right after the English took the island in 1655. Those laws, however, required royal assent (and technically Jamaican law still does).

The Jamaican House of Assembly of the planters had many of the same complaints against royal assent which the American colonists had, and was very sympathetic to the American Revolution. The American Declaration of Independence complained of the King: "He has refused his Assent to Laws, the most wholesome and necessary for the public good." And: "He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained ... ."

Jamaica did not have to fight for its Independence. We sort of progressed towards it. By 1962, the majority of the population had long been freed from slavery by British law (1834), which the planter House of Assembly vigorously opposed. There was universal adult suffrage under a constitution granted by the British government to end Crown Colony government, which had been in force since 1865 when the House of Assembly had abolished itself in the aftermath of the Morant Bay Rebellion. Cabinet government was introduced in 1957 with a council of ministers headed by a chief minister and which had executive authority.

"In 1958," Sir Philip Sherlock and Hazel Bennett tell us in The Story of the Jamaican People, "Jamaica became an independent country in all internal matters with only bills relating to defence and international affairs being reserved" for the colonial government. "The governor's veto powers were retained but could be exercised only on the advice of the Cabinet. A minister of home affairs took over matters formerly dealt with by the colonial secretary ... ."

Culminating our gentle progress towards full Independence, which began with the granting of universal adult suffrage in 1944 and an elected majority in the legislature, on August 6, 1962, Jamaica quietly assumed responsibility for defence and foreign relations.

We came into Independence with an inheritance, which we have retained, of nearly a thousand years of English Common Law. The website of our own Supreme Court explains: "The Jamaican legal system is known as a 'common law' system. The common law system is one of the three major types of legal systems in the world. The other two are civil law (based on codes) and religious law (based on religious texts). Some legal systems involve a combination of two or in a few instances all three of these types.

"The common-law system originated in England, and in its earliest form was based on societal customs and norms recognised and enforced by the judgments and decrees of the courts. Over time, used in a broad sense, the term 'common law' came to include these early customs, as well as legislative enactments and the judicial decisions interpreting their application. The common-law system became, therefore, the law (custom, statutes and judicial decisions) common to all of England.

"Jamaica, as does the rest of the Commonwealth Caribbean, has a common-law legal system inherited from England. In the common-law system, court decisions are heavily reliant on prior judicial pronouncements."

no legal progress?

Jamaica has not embarked on any radical legislative agenda since Independence but has remained close to its English common law roots, never mind the hype about the programme of social legislation of the 1970s. Many countries have substantially restructured their legal codes after revolutions. Some quick modern examples would include Cuba and South Africa and the Middle Eastern countries emerging out of the Arab Spring will have to do so.

A couple of pieces of vital transitional legislation had to be passed immediately prior to Independence. An Independence Act was necessary. A Constitution had to be enacted into law. And a Defence Act had to be promulgated, replacing the British military with the Jamaica Defence Force.

The Independence Act of July 19, 1962, reads: "Be it enacted by The Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-

1.41) As from the sixth day of August, nineteen hundred and sixty-two (in this Act referred to as 'the appointed day'), Her Majesty's Government in the United Kingdom shall have no responsibility for the government of Jamaica.

(2) No Act of the Parliament of the United Kingdom passed on or after the appointed day shall extend, or be deemed to extend, to Jamaica as part of the law thereof; and as from that day the provisions of the First Schedule to this Act shall have effect with respect to the legislative powers of Jamaica."

Are there any clear patterns and trends in Jamaican legislation since 1962? To answer that question properly, there has to be a lot more work done with reviewing the laws than I have capacity or time for. The 1960s, though, seemed very engaged with legislation for industrial modernisation. Early legislation was enacted for Jamaica to join the international community as a sovereign state.

Crucial to our times, with ongoing negotiations with the IMF, Parliament enacted the Bretton Woods Agreements Act which became operational on November 29, 1962. A large number of other acts introduced critical institutions as part of the national architecture. Many others regulated activities.

Towards the end of the first 50 years, more and more laws were directed towards the control of crime and corruption and the protection of financial services.

radical reworking of laws

What would a radical legislative agenda look like over the first five years of the next 50 years? One piece is already in place: The Charter of Fundamental Rights and Freedoms, finally enacted in 2011 to replace and expand Chapter III of the Constitution. It is the foundation of a just state respectful of and protective of human dignity and human rights.

Pending since Emancipation, the Morant Bay Rebellion, and the land hunger marches which accompanied the labour struggles of 1938 is radical land-reform legislation aimed at providing greater access to land and housing for the majority of the population.

We need strong legislation to restrict the borrowing capacity of Government and to enforce fiscal responsibility by law. We need a radical rework of tax laws with vigorous enforcement. Similarly, we need laws to protect the currency from state actions leading to its devaluation or loss of value by inflation.

I am sceptical that we need more laws to deal with crime and corruption and rampant public disorder. What we need is more law enforcement. Matching any social legislation of the past is the need to strengthen legislation for personal responsibility, from pension and health insurance to caring for children and the environment.

There has been a great deal of reactive legislation responding to problems and present needs. There has been too little systematic visionary, game-changing and transformational legislation. And the Parliament in Independence has been a lazy Parliament, sitting less frequently and clearing fewer pieces of legislation each year than many others in the Commonwealth.

Martin Henry is a communication specialist. Email feedback to columns@gleanerjm.com and medhen@gmail.com.