Francesca Tavares | Cooper’s Pen and the making of a garrison

A FAMILIAR QUESTION OF IDENTITY

History does not repeat itself, but as the old saying goes, it often rhymes.

We are watching the slow assembly of a second Cold War, with smaller states, Jamaica among them, once again asked, implicitly, to choose a side.

Old ideologies are being repackaged as new discoveries. Small nations that cannot tell their own story clearly become vulnerable to having it told for them, and Jamaica's most urgent task in this era is narrative: an honest account of how we arrived here, more complicated than either "it was slavery and colonialism" or "it was bad policy in the 1970s".

It is both, and more besides.

IDEOLOGY VS. INSTITUTIONS

I will say plainly that I do not think democratic socialism works. Jamaica ran that experiment in the 1970s, and the results (capital flight, shortages, a currency in freefall) are not evidence that improves with a rebrand.

What has reliably worked is not a particular economic ideology but a particular civic architecture: accountability, historical honesty, and strong, independent institutions (family, church, judiciary, media, schools) alongside systems protecting both individual agency and basic welfare.

Ideology without institutions is theatre; institutions without ideology can still deliver a decent life.

COOPER’S PEN AND THE ANATOMY OF A GARRISON

Cooper’s Pen is, in my view, at risk of a pattern this country knows intimately: lawlessness born of desperation, and the peculiar political arrangement of "donmanship".

Both political parties, over decades, have participated in the creation of garrisons:- communities whose default loyalty runs not to the law, but to a local patron, a state within a state, repurchased every election cycle. This lets crime and corruption fester at the community level in ways that eventually bleed into the nation, benefiting no one, least of all residents themselves, some holding legal title, others squatting, their communities curiously identical regardless of the paperwork.

THE NEW FALMOUTH RESORTS CASE, SUMMARISED

Cooper’s Pen has already produced a full and instructive case history on this point. New Falmouth Resorts Limited, registered proprietor of the Orange Grove lands, brought a claim in 2007 against ninety-nine occupants for recovery of possession.

Its then chairman, James Chisholm, deponed that he had spent more than a decade appealing to government agencies, including the Housing Agency of Jamaica since 2002, without success.

In or about 2010, McIntosh J granted an injunction restraining further construction on the lands and ordered each of the ninety-nine defendants to pay $50,000 in damages for trespass and wrongful occupation, and to demolish and remove their structures. It is unchallenged that they neither paid nor demolished as ordered.

Rather than the matter ending there, the state intervened. In 2012, the Minister of Housing declared the land an improvement area, lodged a caveat against the title, and sought first a stay of execution and then compulsory acquisition, reopening, in substance, a case the owner had already won, on the strength of a sworn declaration citing fears of public upheaval in Trelawny.

McIntosh J found the occupants had themselves been misled by politicians into believing their MP would give them the land, and called the Minister's renewed attempt insincere and an abuse of process; Campbell J agreed two years later, dismissing the claim in Minister of Housing v New Falmouth Resorts Ltd [2014] JMSC Civ 16. The Court of Appeal, in The Minister of Housing v New Falmouth Resorts Ltd. [2016] JMCA Civ 20, upheld that finding and dismissed the appeal with costs.

By then the caveat had reportedly blocked the company from financing to cover its own costs, including land taxes unpaid at that time since 2013. At that time, no monies had been paid by either the state or the occupants toward the damages and costs ordered (it is not clear from the public record whether any payments have since been made).

A fair account of Cooper’s Pen holds both sides' failures in the same frame.

This year's chapter deserves the same candour.

Residents were displaced in a demolition this August that also saw more than twenty men detained pre-dawn, later released without charge, several of whom have since sued the state.

I take no position on whether the force used was proportionate, that is now for the courts those men have gone to, but given decades of refusal to comply with a valid court order, the police presence is at least understandable in context.

The case history also contextualises the property owner’s tax arrears – currently the subject of public criticism.

THREE PROPOSED STAGES OF REFORM

Short term: Parliament should treat reform of adverse possession as urgent and pass emergency legislation before year-end, abolishing the doctrine and replacing it with a formal landlord-tenant relationship, potentially governed by the Law Reform (Landlords and Tenants) Act or similar legislation adapted for the purpose.

The principle should be plain: time, or the payment of property taxes, should not by itself extinguish another's title. Title holders retain rights of repossession, subject to statutory duties; occupiers gain the protection of tenancy rather than the false promise of ownership by default. This requires no new institution and no new spending, only political will, which is why it belongs at the front of the queue.

Medium term: A structured government rental housing programme, kept under state title, offering graduated tenancies calibrated to circumstance (one, five, or fifteen years) and lifetime tenancy reserved as a rare exception for genuine vulnerability.

Each participant would get a case worker connecting them to job training and employment, aimed explicitly at transition into the ordinary market rather than indefinite management.

Britain's council housing system is a cautionary lesson as much as an inspiring one: decades of underinvestment, combined with tenancies that in practice became permanent by default, left long waiting lists and little incentive to move on.

A Jamaican scheme should borrow the UK's ambition for holistic support while correcting for that drift toward permanence and undersupply.

Long term: Jamaica should consider a genuine reformation of land acquisition and home-ownership pathways, structured as a public-private partnership, potentially winding up the NHT in its current form, replaced by an independent fund and board, jointly capitalised and governed, insulated by statute from government interference, drawing on both the Jamaican Free Village tradition and Israel's moshav model. This deserves its own fuller treatment (see article: ‘Why Jamaica needs a Land Reformation Act’ – by the author).

CONCLUSION

None of this is simple, and I am suspicious of any proposal that presents itself as easy. Our modern political history since the 1970s, not only slavery and colonialism, has shaped our relationship with land, crime, and tribalism. But we are a nation capable of hard things, and the conversation about accountability is worth having, because our situation is not simply history's legacy. It is also our own, ongoing choice.

- Francesca Tavares is an attorney-at-law, compliance professional, writer, commentor and co-creator of the Jamaican documentary ‘Traffick Blocking: The Docu-Film’. Email feedback to columns@gleanerjm.com. ONLINE ONLY COMMENTARY.