The Next 50 Years - Towards a lawful, neutral society

Bert Samuels,  Guest Columnist

PRIOR TO the transatlantic slave trade, the early non-European settlers, following on the British acquisition of Jamaica, automatically received the privileges and rights of English settlers; but at the time our African forefathers landed here, it was non-negotiable that they could ever claim the same rights and privileges.

The Africans brought here were not, in law, designated as human beings, hence, they were not consulted regarding their indigenous laws that could have been repatriated here to govern their activities. African traditions were not only disregarded, but often, as in the case of obeah and polygamy, criminalised.

In 1664, the Assembly in Jamaica, as one of its first enactments, immediately gave notice that "the laws of England were in force in Jamaica". The history of the development of law in Jamaica has consistently taken on this 'mirror principle'. It is the law of Jamaica because it is the law of England, and for no other reason. This obtained during slavery, during the colonial period, and paradoxically, continued in post-independent Jamaica. Today, the laws of Jamaica are, for the most part, the laws of England, with a few exceptions.

This fact has led to discontent in our society between the law and the people. Naturally, if the laws are not made from the custos morum of a people and from the distilled experience acting in their interest, there is bound to be a disconnect. It is not uncommon for the ordinary Jamaican in the street to harbour an inherent dislike for 'courthouse', which is another way of referring to the formal law-and-order structure in place here.

There has always been this detachment. A deep feeling of mistrust runs rife among a large section of the populace. This detachment and distrust has naturally plagued our justice system. It is against this background that our laws have been enforced by our courts. This state of affairs came to a head in 1865 when William Gordon was executed, although he was nowhere near the crime, to silence anyone who may have considered siding with the plight of the people.

The Morant Bay massacre was inevitable and was an unavoidable outgrowth of this disconnect. The voiceless, disenfranchised, and unrepresented newly freed slaves were disputing that certain lands, for which the planters demanded rent from them, were, in fact, Crown lands. This conflict, which ought to have been settled immediately by a court, resulted in deadlock and precipitated a Bogle-led revolt. Paul Bogle knew well that the magistrates were either planters themselves, or were in an unholy alliance with them.

The challenge of the justice system to act fairly to a people - who the day after slavery experienced 100 per cent unemployment and owned not one square of land - is the backdrop against which we must view the administration of justice in Jamaica.

Another painful historical fact is that whereas the British government awarded compensation to the planters who lost their slaves, not a pound was awarded to the newly freed slaves for their centuries of free labour. From the outset, this unjust approach has defined the British approach to our impoverishment. In fact, when the people of St Ann petitioned the British queen in 1865 to assist them as they "were in great want ... from the bad state of our (sic) island" and ended the petition with "God bless the queen", she responded with not a penny, and added that they should give hard work to ensure that the plantations be "productive".

When the Constitution of Jamaica was made "at the Buckingham Palace, the 22nd July, 1962", our fundamental rights were declared in Chapter 3, Sections 13-26. These rights were by no means revolutionary. The very Constitution which established these rights made sure to preserve pre-Independence colonial laws, making them applicable even where they may have been found to be inconsistent with the newly declared fundamental rights!

By way of example of the retention of colonial laws, Section 17 of the Constitution legitimised the continuation of flogging as a means of punishment. This dehumanising means of punishment - part of the daily experience of the enslaved Africans - was preserved as a meansof punishment even in post-independent Jamaica. Section 17 {1} of the
Constitution enshrined protection from torture, or inhuman or degrading
punishment, but immediately thereafter, declared in Subsection 2 that
all forms of punishment prior to 1962 were preserved.

It is
interesting to note that we have a constitution that guarantees freedom
of religion (Section 21); however, because we preserved all
pre-Independence laws, the Obeah Act prohibited African religious
practice and allowed flogging as one of the punishments for its
practitioners. In fact, unlike any other law in my research, even after
conviction, a person punished for practising obeah may thereafter be the
subject of continued police supervision.

STATUS OF CHILDREN'S
ACT

In pre- and post-slavery society, where family
life was in disarray and men were encouraged in irresponsibility,
rearing as many "slave-lings" (children) as possible, sugar production
was enhanced by an unending free source of new labour. It is against
this socio-economic legacy that we should look at the status of the
child in post-independent Jamaica.

Up to 1974, a child
born from unmarried parents in England, and hence, in Jamaica, was
referred to as "a bastard" and openly discriminated against in a litany
of legislation. This rendered the majority of children born in Jamaica
disinherited and treated as second-class citizens. Paradoxically, no one
seemed to have ever challenged its unconstitutionality. The explanation
could be that all pre-constitutional laws, regardless of how oppressive
they were, were preserved by Section 26 {8} of the Constitution
(repealed by the Charter of Rights of 2011) which
provides:

"Nothing contained in any law in
force immediately before the (Constitution) shall be held to be
consistent with any of the provisions of this Chapter; and nothing done
under the authority of any such law shall be held to be done in
contravention of any of these
provisions."

The 1974 legislation had to
categorically redefine the meaning of child, stating "child" includes
one born out of wedlock. It had to remove a rule of statutory
construction:

"... whereby in any instrument
words of relationship signify only legitimate relationship in the
absence of a contrary expression of intention is hereby
abolished."

It went further and
declared:

"... for all the purposes of the
law of Jamaica the relationship between every person and his father and
mother shall be determined irrespective of whether the father and mother
are or have been married to each other, and all other relationships
shall be determined accordingly."

The
Constitution is a vivid example of our retention of colonialism as it
sought to keep colonial laws in place, making a mockery of a new
beginning in 1962 and defeating the whole idea of Independence from
Britain.

PROTECTING FUNDAMENTAL PRINCIPLES

In so far as our laws must be the subject of
continuous refinement and adjustment, we need now to revisit certain
fundamental principles.

The abolition of the "dock" in
criminal trials must be a high priority. The dock, in which a person
who is presumed innocent is isolated, must be removed in a redesigned
courtroom. Other jurisdictions have been able to have the accused sit at
the same table as his representative, without any resulting compromise
in security. In other jurisdictions, should a shackled accused be
exposed to the jury, it is grounds for a retrial to be ordered.

The dock is palpably inconsistent with the principle
of the presumption of innocence. So, too, is the reference to the
accused as "the prisoner in the dock" in the oath taken by jurors prior
to their returning a verdict. The term 'prisoner' clearly imputes a
person already convicted. We have to recognise that in England, the
system of justice we have sought to mirror - regarding their treatment
of an accused during the dark period of the "star chamber"- did not even
afford him the right to be present at his own
trial.

The preservation of our democracy is directly
related to trial by jury. Consequently, we must turn a deaf ear to those
who, under the guise of expediency, argue that trial by judge alone is
the way forward. We must improve the jury system rather than limit it.
Our representatives are there because of our majority vote, and
similarly, on important decisions regarding a citizen's liberty, trial
by our peers is the only guarantee of the preservation of a fair trial.
The collective wisdom of our people is superior to that of any single
individual, be it judge or king.

THE
JUDICIARY

The first generation of locally trained
lawyers appointed to the Bench is now in place. In fact, our first
locally trained lawyer to be appointed as chief justice, The Honourable
Mrs Justice Zaila McCalla, is now the sitting chief justice, 50 years
after gaining Independence.

The independence of the
judiciary is the single most important feature of the doctrine of the
separation of powers. We now boast a system of governance that empowers
our judiciary to declare a law passed by our Legislature, supported by
the Executive arm of government, to be struck down. This is one of the guarantees in our system for the
prevention of arbitrary government and
the preservation of our democracy.

The empirical
evidence points to the fact that the overwhelming majority of our judges
are, for the most part, drawn from former members of the Office of the
Director of Public Prosecutions. This fact has been the subject of
adverse comment by many legal luminaries. In my experience, a prosecutor
who has been appointed judge, whose entire career as a lawyer was
devoted to the procurement of a conviction, will find it challenging to
demonstrate the balance necessary in determining the guilt or innocence
of an accused.

THE POLICE

The experience of
the Jamaican people is one of a nation which has experienced much
disconnect and suffering regarding its governance. This has posed a
serious challenge to those committed to upholding the law. The word
"force" to describe the police is an unfortunate choice. The use of
force to keep in place those denied their liberty has been a sad part of
our experience.

The police, who are to uphold the
law, must jealously guard against any perception that they are not doers
of the law. One has to caution the police with the words of St Paul in
the Book of Acts, Chapter 23 verses 2 and 3, when the presiding judge,
High Priest Ananias, ordered that he be smitten on the mouth. Paul said
this: "... sittest thou to judge me after the law, and
commandest me to be smitten contrary to the
law?"

The leadership of the police must
constantly remind themselves of the need for restraint in the use of
deadly force. This can only come from having highly trained, disciplined
men and women in uniform. The negative ripple effect of poor conduct
cannot be overemphasised.

MEDIATION: THE WAY
FORWARD

Prior to the introduction of dispute
resolution in civil matters in 2004, the system placed undue burden on
judges to intervene in all disputes, be it civil or criminal. We have
moved in the right direction where, in all High Court civil matters, one
has to apply to the court to dispense with mediation. In criminal
matters, it is now the norm for the judge to invite parties,
particularly in domestic disputes, to explore settlement by way of
mediation.

This win-win versus win-or-lose approach is
working. It has freed up our overburdened judges and prosecutors to
step in only when trained mediators fail to settle the issues between
parties.

THE COURTS ARE THE WATCHDOGS OF THE
CONSTITUTION

In its decision handed down in July 2010
in the case of Adrian Nation and Kereen Wright, the
Full Court Division of the High Court demonstrated the role we expect
the courts to play in protecting the rights of citizens. Our Parliament
placed the burden on the accused, and not on the prosecution, as to
whether a person charged with an offence could access bail. It also
created a period of time during which a person was precluded from being
brought to court to apply for bail. In this landmark decision, parts of
the new 'crime bills' were struck down as being unconstitutional. Our
court was prepared to adopt the words of the judgment of a Mauritius
court that the courts "control the Executive, in accordance
with its constitutional role, must remain, and be seen to remain
unimpaired".

The Charter of Rights has given
its warning to the Parliament that it shall "pass no law ... which
abrogates or infringes ..." the rights it has
declared.

After our 50-year experience under the 1962
Constitution, we have added intelligent new rights. There is the welcome
right of every child to be protected by the State, and to have the
State provide free education at the preschool and primary levels. The
right to enjoy a healthy environment is now protected. Were this right
part of our declared rights in 1962, we would not be forced to stand by
and witness the poisoning of the blue waters of the world-famous
Kingston Harbour with raw sewage. We have created the long-awaited right
to vote, an inexcusable omission from the 1962 Constitution. At last,
our right to vote now enjoys constitutional protection. To remove all
doubt, the Charter (Section 13. 4) states unequivocally that our
protection applies to "... all law and binds the Legislature and the
Executive ... ."

The fact that we witnessed bipartisan
support for the Charter speaks volumes for our political maturity. We
look forward to a vibrant and independent judiciary, prepared at all
times - irrespective of who sits in Jamaica House - to continue
jealously guarding our inalienable rights.

Bert
Samuels is an attorney-at-law. Send feedback to
editor@gleanerjm.com.