Comparative law and justice/Jamaica

Part of the Comparative law and justice Wikiversity Project

Subject classification: this is a comparative law and justice resource.

Bschindler 0705 19:40, 9 February 2010 (UTC)

Basic Information

• Population: 2,825,928
• Capital: Kingston
• Official Language: English
• National Language: Jamaican Patois
• Age Structure:

• 0-14 years: 31.4%

• Male-451,310
• Female-436,466

• 15-64 years: 61.1%

• Male-851,372
• Female-875,132

• 65 years and older: 7.5%

• Male-94,833
• Female-116,815

• Geographical Information:

• Area: 10,991 sq. km
• Location: Found in the Caribbean, just south of Cuba, to the west of Haiti and the Dominican Republic, and to the east of the Cayman Islands
• Major Cities and their populations(1991):

• Kingston- 587,798
• Portmore- 90,138
• Spanish Town- 92,383
• Mandeville- 39,945
• Ocho Ríos- 8,189
• Port Antonio- 13,246
• Negril- 4,184
• Montego Bay- 83,446

• Ethnic Groups: Black-91.2% Mixed-6.2% Other or unknown-2.6%
• Religions: Protestant 62.5% (Seventh-Day Adventist 10.8%, Pentecostal 9.5%, Other Church of God 8.3%, Baptist 7.2%, New Testament Church of God 6.3%, Church of God in Jamaica 4.8%, Church of God of Prophecy 4.3%, Anglican 3.6%, other Christian 7.7%), Roman Catholic 2.6%, other or unspecified 14.2%, none 20.9%

Brief History

Christopher Columbus claimed the territory in 1494 for Spain after sailing to the island and upon reaching the island tried to get rid of the indigenous people.

In 1655 the English Admiral William Penn and General Robert Venables seized the island from the Spanish and took control of the island for England.

During its first 200 years of British rule, Jamaica became one of the world's leading sugar-exporting, slave-dependent nations, producing more than 77,000 tons of sugar annually between 1820 and 1824.

By the beginning of the 19th century, Jamaica's heavy reliance on slavery resulted in blacks (Africans) outnumbering whites (Europeans) by a ratio of almost 20 to 1.

Following a series of rebellions and changing attitudes in Great Britain, the nation formally abolished slavery in 1834, with full emancipation from chattel slavery declared in 1838.

In 1872, Kingston became the island's capital.

Jamaica slowly gained increasing independence from the United Kingdom and in 1958, it became a province in the Federation of the West Indies, a federation among the British West Indies. Jamaica attained full independence by leaving the federation in 1962.

The optimism of the first decade was accompanied by a growing sense of inequality, and a sense that the benefits of growth were not being experienced by the urban poor. This, combined with the effects of a slowdown in the global economy in 1970, prompted the electorate to change government, electing the PNP (People's National Party) in 1972. However, despite efforts to create more socially equitable policies in education and health, Jamaica continued to lag economically, with its gross national product having fallen in 1980 to some 25% below the 1972 level. Rising foreign and local debt, accompanied by large fiscal deficits, resulted in the invitation of the International Monetary Fund (IMF) financing from the United States and others, and the imposition of IMF austerity measures (with a greater than 25% interest rate per year).

Economic Development, Health, and Education

• Population growth rate: 0.755%
• Birth rate: 19.68 births/1,000 population
• Death rate: 6.43 deaths/1,000 population
• Sex ratio:

• at birth: 1.05 male(s)/female
• under 15 years: 1.03 male(s)/female
• 15-64 years: 0.97 male(s)/female
• 65 years and over: 0.81 male(s)/female
• total population: 0.98 male(s)/female

• Infant mortality rate:

• total: 15.22 deaths/1,000 live births
• male: 15.81 deaths/1,000 live births
• female: 14.61 deaths/1,000 live births

• Life expectancy at birth:

• total population: 73.53 years
• male: 71.83 years
• female: 75.3 years

• Literacy:

• definition: age 15 and over has ever attended school
• total population: 87.9%
• male: 84.1%
• female: 91.6% (2003 est.)

• GDP(purchasing power parity): $23.36 billion (2009 est.)
• GDP per capita(PPP): $8,300 (2009 est.)
• Agriculture - products: sugarcane, bananas, coffee, citrus, yams, ackees, vegetables; poultry, goats, milk; crustaceans, mollusks
• Industries: tourism, bauxite/alumina, agro processing, light manufactures, rum, cement, metal, paper, chemical products, telecommunications
• Exports: $1.422 billion (2009 est.)

• commodities: alumina, bauxite, sugar, rum, coffee, yams, beverages, chemicals, wearing apparel, mineral fuels

• Imports: $4.625 billion (2009 est.)

• commodities: food and other consumer goods, industrial supplies, fuel, parts and accessories of capital goods, machinery and transport equipment, construction materials

Governance

• Type of government: Parliamentary Democracy AND Constitutional Monarchy

• Monarch: Queen Elizabeth II
• Governor-General: Patrick Allen
• Prime Minister: Andrew Holness

• Independence: Gained from the United Kingdom on August 6, 1962

Constitution of Jamaica

The 1962 constitution established a parliamentary system based on the U.K. model. As chief of state, Queen Elizabeth II appoints a governor general, on the advice of the prime minister, as her representative in Jamaica. The governor general's role is largely ceremonial. Executive power is vested in the cabinet, led by the prime minister.

Parliament is composed of an appointed Senate and an elected House of Representatives. Thirteen Senators are nominated on the advice of the prime minister and eight on the advice of the leader of the opposition. General elections must be held within 5 years of the forming of a new government. The prime minister may ask the governor general to call elections sooner, however. The Senate may submit bills, and it also reviews legislation submitted by the House.

It may not delay budget bills for more than 1 month or other bills for more than 7 months. The prime minister and the cabinet are selected from the Parliament. No fewer than two or more than four members of the cabinet must be selected from the Senate.

The judiciary also is modeled on the U.K. system. The Court of Appeals is the highest appellate court in Jamaica. Under certain circumstances, cases may be appealed to the Privy Council of the United Kingdom. Jamaica's parishes have elected councils that exercise limited powers of local government.

Elections

Suffrage is 18 years of age and is universal for those who are citizens of Jamaica. The monarchy is hereditary. Governor general is appointed by the monarch on the recommendation of the prime minister and ollowing legislative elections, the leader of the majority party or the leader of the majority coalition in the House of Representatives is appointed prime minister by the governor general. The deputy prime minister is then recommended by the prime minister. In the legislative branch, the bicameral Parliament consists of the Senate (a 21-member body appointed by the governor general on the recommendations of the prime minister and the leader of the opposition. The ruling party is allocated 13 seats, and the opposition is allocated 8 seats) and the House of Representatives (60 seats; members elected by popular vote to serve five-year terms).

Judicial Review

Petty Session

• The Petty Session Court is presided over by Justices of the Peace. The Justices of the Peace Jurisdiction Act confer various powers on the Justice of the Peace including the power to issue warrants consequent on non-obedience to summons. A Resident Magistrate has the power of two Justices of the Peace.

Resident Magistrate's Court

• There is a Resident Magistrate’s Court for every Parish and it has jurisdiction within that Parish and one mile beyond its boundary line. This Court presides over both civil and criminal matters. The divisions of the Resident Magistrate’s Court are the Family Court, the Juvenile Court, the Traffic Court, Gun Court, Small Claims Court, the Drug Court and the Night Court. The Resident Magistrate’s Court has limited jurisdiction in both civil and criminal matters; the amounts and the extent of the jurisdiction of this court is provided for in the Judicature (Resident Magistrate’s) Act. The Resident Magistrate must be an Attorney-at-law of at least five years standing. Resident Magistrates are appointed by the Governor General and the Judicial Services Commission.

Civil matters tried at a Resident Magistrate’s Court include recovery of possession, recovery of rent, granting of probate and letters of administration. The Resident Magistrate’s Court has no power to hold a trial for certain criminal offences including murder, treason and rape, however in such cases a Preliminary Examination or enquiry into the charge is held. In this enquiry, unlike a trial where the objective is to determine whether the defendant is guilty or not guilty, the purpose is to determine whether the evidence is sufficient for the accused to stand trial at the Supreme Court. The jurisdiction of this Court is defined by Statute.

The Supreme Court

• The Supreme Court has unlimited jurisdiction in civil and criminal matters. It consists of the Chief Justice, a Senior Puisne Judge and at least twenty other Puisne Judges. Puisne Judges must be Attorneys-at-law of at least ten years standing. Judges of the Supreme Court are appointed by the Governor General on the recommendation of the Judicial Services Commission. They have jurisdiction to hear applications regarding breaches of fundamental rights and freedom as provided for under the Constitution. This Court exercises important supervisory functions over tribunals like the Industrial Disputes Tribunal and the Resident Magistrate’s Court in the hearing of writs of habeas corpus and making of orders of certiorari, mandamus and prohibition. Two divisions of the Supreme Court are the Revenue Court established in 1971 and the Gun Court established in 1974. The Gun Court Act was later expanded to include the Western Regional Gun Court that hears gun offences committed in the parishes of St. James, Trelawny, Westmoreland and Hanover. The third division of the Supreme Court is the Commercial Court which began operations in February 2001.

The Circuit Court is the criminal jurisdiction of the Supreme Court that is convened in Parishes for the proper administration of justice. It is convenient for the parties involved, as it eliminates the need to travel to Kingston for the prosecution of cases.

The Circuit Court held for the parishes of Kingston and St. Andrew is called the Home Circuit Court, while that which is convened in the other Parishes are named after the respective Parish, for example, the St. Catherine Circuit Court or the St. James Circuit Court.

The Court of Appeal

• Appeals against decisions from both the Supreme Court and the Resident Magistrate’s Court are heard in the Court of Appeal. It consists of the President of the Court of Appeal and six Judges of Appeal. The Chief Justice is an ex-officio member, but only sits on the invitation of the President in matters in which that the full Court is sitting. A Judge of the Court of Appeal must be an Attorney-at-law of at least ten years standing. Judges of the Court of Appeal are appointed by the Governor General on the recommendation of the Judicial Services Commission. The Chief Justice and the President of the Court of Appeal are appointed by the Governor General on the recommendation of the Prime Minister after consultation with the Leader of Opposition.

Courts and Criminal Law

Despite antiquated laws and overcrowded jails, Jamaicans generally have respected the rule of law and the system of justice inherited from the British. The principle of habeas corpus, which is rooted in English common law, is stated explicitly in Jamaican statutes enacted either before or since independence. It is also respected by the courts and police. Bail may be granted on a discretionary basis. The courts operate at three broad levels: the Court of Appeal; the Supreme Court; and the Resident Magistrate's Court, of which there are nineteen. Other judicial bodies are the Coroner's Court, Traffic Court, Petty Sessions Court, juvenile courts, Revenue Court, Family Court, and Gun Court (see National Security, this ch.). Justices of the peace, who are local notables without legal training, preside over courts of petty sessions.

The eight-member Court of Appeal is at the apex of the court hierarchy in Jamaica. This court is headed by a president, who is appointed by the governor general on recommendation of the prime minister after consultation with the leader of the opposition. It is also staffed by a chief justice and six other judges appointed by the governor general on the advice of the prime minister and the opposition leader. It sits in two divisions in Kingston throughout the year. A person who is dissatisfied with the decision of another court, except petty sessions, may appeal to this court. Section 110 of the Constitution provides that decisions of the Court of Appeal can be taken on appeal to the Judicial Committee of the Privy Council in London in grave civil or criminal cases, for matters deemed of great public importance, or as decided by Parliament or the Court of Appeal itself. The Privy Council is given final jurisdiction on interpretation of the Constitution.

The Supreme Court is headed by the chief justice, who is appointed in the same manner as the president of the Court of Appeal. It is also staffed by five other judges, a senior puisne judge, and other judicial officials. The Supreme Court has unlimited jurisdiction in civil and criminal cases and can dispense summary justice without jury in certain criminal cases. It sits in Kingston for the trial of civil cases; for criminal cases, it serves as a circuit court in the capital town of each parish.

The Resident Magistrate's Court, which includes the Petty Sessions Court, deals with minor infractions, but may also indict an individual for a serious offense, which would then be adjudicated in a circuit court. Kingston has four resident magistrate courts; St. Andrew, three; and the other parishes, one each. Circuit court judges exercise broad discretion in imposing sentences for serious violations of law.

Constitutional provisions relating to the appointment and tenure of the higher judiciary provide safeguards for their independence from government. Appointments are made by the governor general in consultation with the prime minister, the leader of the opposition, and a judicial service commission. Judges are almost always appointed from within the judicial department of the civil service.

Punishment

Corporal punishment was used in the country's history and usually consisted of whipping or flogging until being finally abolished in 1998.Article Abolishing Corporal PunishmentIt was issued as a result of conviction for criminals and as part of the sentence or punishment. Also corporal punishment has been used in Jamaican schools that typically involved a cane or strap.

Legal Personnel

The Justice Training Institute was established in July 1997 to serve the training needs of the Justice System. It was established to design, develop, organize, co-ordinate and conduct training programs for personnel employed in the various agencies (Public and Private Sector) that serve the Justice System. The Institute, in consultation with the Chief Justice, caters to the needs of the Judiciary by organizing and co-coordinating training programs to satisfy its needs. The Institute also has responsibility for the training of Justices of the Peace. Additionally, it may undertake, participate in, or commission research into areas relevant to the Administration of Justice, and publish those research findings. It further structures its training programs/offerings on the basis of any relevant research findings. The Institute offers training in the following:

• Certificate in Legal Administration for persons who work or have interest in legal administration in law offices, legal departments and legal entities of the public and private sectors
• Certificate in Criminal Justice Studies for persons who work or are involved in the administration of the criminal justice process, or who have interest in understanding the essentials of the criminal justice process and the factors which impact upon that process
• Training program in Jamaican Sign Language – one of its thrusts in ensuring access to justice for people who are hearing impaired
• Supervisory Management for supervisory personnel who work in public sector agencies
• Customer Service for persons who work in the Justice sector agencies but not limited to those agencies

Law Enforcement

• Jamaica has a multiple coordinated, centralized type of police structure that takes after England.

The Ministry of National Security is responsible for maintaining security and defense of Jamaica. The security of Jamaica is maintained through the the national forces of the Jamaica Defence Force, or JDF, and the Jamaica Constabulary Force, or JCF. The Jamaica Defence Force offers military service, while the Jamaica Jamaica Constabulary Force has the responsibility of maintaining the basic law and order within the country. Jamaica Police Academy administers the recruitment and training of entrants to the Force with a Commandant at the level of Superintendent of Police, heading the academy. The people of Jamaica face significant problems with the police, crime, gangs, and corruption. There have been reports of police not protecting and serving the community, but actually killing members of the community in what they call "shootouts". There also seems to be a good amount of corruption on the part of the police with bribes seeming to be prevalent. Also there is distrust in the justice system so often people are reluctant to report crimes, from fear of retaliation from gangs or the mishandling by the police force. The military, or Jamaica Defence Force, includes an infantry Regiment and Reserve Corps, an Air Wing, a Coast Guard fleet and a supporting Engineering Unit. It's duties are to defend the nation in the event of aggression, provide assistance to the police and other agencies in the event of civil disturbances or major disasters, and to do surveillance of Jamaica’s territorial waters in support of fisheries protection, anti-smuggling and narcotics control measures. The Jamaican Constabulary Force is the main police force in Jamaica and it's duties are to: keep maintenance of law and order, prevent and detect crime, the protection of life, investigate alleged crimes, and the enforcement of all criminal laws as well as immigration and alien control.

Crime Rates and Public Opinion

• There are significant problems with violent crime in the country, along with issues that revolve around human trafficking and drug trafficking that remains a problem within the country.

Theft, assault, and robbery are also high in Jamaica

• Jamaica is part of the Common Law and Civil Law families of law, with most of it's history stemming from British traditions

Police corruption, being understaffed and overworked can account for the numbers being less reliable or factual, however Jamaica still has one of the highest murder rates in the world as Nationmaster ranks them 3rd only behind Colombia and South Africa for murders(per capita)with 0.324196 per 1,000 people

Rights

Family Law

• In 2003 the Child Care and Protection Act was passed in order to address and define neglect and child abuse, procedures for responding to such allegations, and judicial remedies for such. The act mandates that the child's views be taken into account when that child is of sufficient age and maturity. Also the act provides for the position of "Child Advocate" to serve as legal representative to the child if it appears to the court that the child is in need of representation and consents to it.

Social Inequality

• Jamaican legislation prohibits all discrimination based on race or religion, but does not make any reference to gender. The government is reviewing a draft charter on fundamental rights that would specify gender on the list of prohibited discriminations. Jamaica’s Civil Code and Penal Code still contain numerous discriminatory measures, and the language used in the country’s laws is not gender-neutral. Traditional gender stereotypes are institutionalised within Jamaica’s education system, the media, religion and the family.

Family Code:

• Although tradition is strong in Jamaica, the country’s Family Code upholds the principle of equality for women. The minimum legal age for marriage is 16 years for both men and women; minors below 18 years of age need their parents’ consent to marry. Early marriage is extremely rare: a 2004 United Nations report estimated that 1 per cent of girls between 15 and 19 years of age were married, divorced or widowed.
• Polygamy is prohibited under Jamaican law.
• Jamaican legislation provides for equal rights and responsibilities for spouses, and mothers and fathers share parental authority. Social stereotypes persist, however, making it socially acceptable for husbands to exercise authority over their wives and make household decisions. In the event of divorce, custody is awarded according to the best interests of the children, but is usually granted to the mother.
• In the matter of inheritance, the wishes of the deceased are paramount. However, if the deceased has specifically stated that the spouse and children should not inherit his or her property, the surviving dependents can appeal to the courts to obtain an allowance.

Physical Integrity:

• The physical integrity of Jamaican women is not sufficiently protected. Violence against women, including domestic violence and sexual abuse, is common, especially in rural areas. In fact, the high incidence of physical, sexual and psychological violence considerably reduces women’s independence. In 1995, the government passed a law that recognised domestic violence as a crime; however, the authorities are having difficulty addressing the problem and the legislation is slow to have any positive impact on women’s lives. The Bureau of Women’s Affairs has proposed an amendment to the 1864 Offences against the Person Act to include spousal rape as a crime. The World Bank has found a close correlation between economic dependence and violence, and states that the main cause of men’s violence against women is financial, emotional or sexual insecurity.

Ownership Rights:

• Jamaican law and tradition create obstacles to women’s financial independence. While Jamaican women have the legal right to hold title deeds, social stereotypes limit women’s access to land and they have difficulty obtaining mortgages.
• The Married Women’s Property Act, a law dating back to 1887, regulates married women’s access to property other than land. It contains numerous discriminatory clauses, including a regulation that refers to “fraudulent investments [made] by a wife of her husband’s money without his consent”. The government is revising this legislation and has recommended that the asymmetry of this statement be addressed. The Family Property (Rights of Spouses) Act was adopted in 2004, stipulating that men and women have an equal legal capacity to sign contracts and administer property.
• Women have more difficulty than men in obtaining access to bank loans, primarily because they are more likely to live in poverty. Women can obtain low-rate loans through micro-credit programmes, and several such initiatives have been launched in recent years. In general, women have better access to loans for small sums than for larger amounts.

Human Rights

• The Jamaican Constitution of 1962 provides that every person, regardless of race, place of origin, political opinions, colour, creed of sex, is entitled to certain fundamental rights and freedoms. These freedoms include:

-the right to life

-the right to personal liberty

-freedom of movement

-freedom from inhumane treatment

-enjoyment of property

-freedom of conscience

-freedom of association

-respect for private and family life

-freedom from discrimination

• Jamaica continues to stand in solidarity with other nations in its commitment to respect and preserve human rights as demonstrated by the fact that Jamaica is a party to the major international conventions concerning the protection of human rights, including the International Covenant on Civil and Political Rights, and Jamaica’s Constitution as well as other laws seek to protect and preserve basic human rights.
• Although Jamaica strives for human rights and equality, discrimination is present among gay men and those individuals who are HIV-positive. This is due to the fact of Jamaica's anti-homosexual laws and stigma that is associated with HIV-positive people and homosexuals in the country, but also from the civilian population and health care services.