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Searching for identity: Jamaican judicial decisions after fifty years of independence.

Manley's Challenge

Norman Manley, one of Jamaica's greatest advocates and one of its founding fathers, said, with his usual oratorical brilliance, at the time of Jamaica's independence:
   And now I am going to speak to you about the challenge
   of this time as we close one book of history and open
   another. We could foresee the end of the first. The second
   ending we cannot foresee. Comrades, it is one thing to
   become free; it is another to build a real nation. It is our
   tragedy today that where history has placed power and
   leadership in the land, it has not placed tongues to rouse
   the people to the greatness of the times. It has not raised
   up a voice among them who could rise to the occasions
   of these days; who could lift up the new dynamic which
   would be alive from one end of the land to the other.


In this, Jamaica's 50th year of independence, it is quite remarkable how true and relevant Manley's words remain. Jamaica closes a book of history and opens yet another. In adopting Manley's rubric, a third book is being closed and the fourth is about to be opened. And today we still must ask the question: how have Jamaicans built this nation?

By what yardstick can we measure the progress of a nation? How can one determine the truth of its success? How have the people of this country done in the building of the "real nation" of which Manley spoke? Are Jamaicans today, 50 years after independence, better aware of their greatness, or potential for greatness, as Manley had hoped they would one day be?

The formulation of the answers to these questions is as overwhelming as the questions themselves. Luckily, my task is an easier one. It is not for me to assess the heights of greatness achieved by this nation through the likes of illustrious sons and daughters such as Manley, [Louise] Bennett-Coverley, [Bob] Marley, [Rex] Nettleford and [Usain] Bolt; nor the shining examples to the rest of the region of agricultural development, tourism, local government institutions, scientific research or political education and maturity. Neither is it for me to assess the disappointments which the nation has faced in terms of economic growth, poverty, crime or social inequality.

I remain, at heart, a simple lawyer. I will speak about the law and how Jamaica in this, its 50th year, has relied upon the law and seen the development of law and justice as an integral part of its nation-building, of shaping the soul and identity of this nation.

Manley also said in 1967:
   Any country that can maintain as a force of developed public
   opinion, confidence in, and respect for, and a determination to
   maintain, the rule of law, is safe from the extremes of
   dictatorship ...


The rule of law

Of one thing Jamaica can be sure: throughout its darkest days since independence, its people have steadfastly retained the determination to maintain the rule of law. From the social and student protests in the sixties; the Cold War battleground and political tribalism in the 1970s; turbulent economic times; unwelcome crime, the tragedy of natural disasters and even, more recently, the Dudus Extradition Affair, the Jamaican people and the Jamaican courts have proved their mettle in seeking to maintain the rule of law.

Our preoccupation is to consider whether Jamaica has indeed fulfilled the mandate entrusted to it by its founding fathers in its development of law and its legal structures and, in particular, the Constitution. The fact that the Constitution and the laws of Jamaica are well written provides cold comfort if constitutional provisions have not been interpreted and applied in the collective interest of the people. The 6th century BC philosopher, Anacharsis, said: "Written laws are like spider's webs; they will catch, it is true, the weak and poor, but would be torn in the process by the rich and powerful."

In 2011, Jamaica amended Chapter 3 of its Constitution and replaced it with a new chapter, which provides more comprehensive and effective protection for the fundamental rights and freedoms of all persons in Jamaica. An excellent amendment it is, but well-written laws are not sufficient to safeguard the freedoms of citizens if they are not judiciously applied.

US Supreme Court judge Justice Antonio Scalia points out that the mere existence of fundamental rights and freedoms in legislation or in a Constitution should not alone give citizens comfort. He said, "It is a mistake to think that the Bill of Rights is the defining or even the most important, feature of American democracy."

Justice Scalia continues: "Consider, for example, the following sterling provisions of a modern bill of rights: "Every citizen ... has the right to submit proposals to state bodies and public organisations for improving their activity, and to criticise shortcomings in their work ... Persecution for criticism is prohibited. Persons guilty of such persecution shall be called to account.
   [C]itizens ... are guaranteed freedom of speech, of the press,
   and assembly, meetings, street processions and demonstrations.
   Exercise of these political freedoms is ensured by
   putting public buildings, streets, and squares at the disposal of
   the.... people and their organisations, by broad dissemination
   of information, and by the opportunity to use the press,
   television, and radio.

   Citizens ... are guaranteed freedom of conscience, that is, the
   right to profess or not to profess any religion, and to conduct
   religious worship, or atheistic propaganda. Incitement of
   hostility or hatred on religious grounds is prohibited.


"Wonderful stuff," says Justice Scalia. But these were provisions of the 1977 Constitution of the Union of Soviet Socialist Republics (USSR). They were not worth the paper they were printed on, as are the human rights guarantees of a large number of still-extant countries governed by presidents-for-life.

The Founding Fathers

There can be no doubt that the framers of the Constitution of Jamaica envisaged--as they should have--that they were creating a document that would not remain static: but, instead, that it was organic and that it would grow and come to truly represent something indigenous, something truly representative of Jamaica, its people, culture and circumstances.

In the Legislative Council in 1962, then Opposition Member Edward Seaga expressed the hope and belief that:
   We shall accept these traditions as our foundations and upon
   these foundations we shall seek to erect a structure of our own
   ... that will fit the sociological pattern of this country.


Manley himself said:
   Peculiarly, the West Indian history is a modern thing and
   tradition is something which we have to foster and create and
   its development is a deliberate act of intelligence.


Manley also said, reacting to criticisms of undue orthodoxy and conservatism in the drafting of the Jamaican Constitution:
   Let us not make the mistake of describing as colonial,
   institutions which are part and parcel of the heritage of this
   country. If we have any confidence in our own individuality
   and our own personality we would absorb these things and
   incorporate them into our being and turn them into our own
   use as part of the heritage we are not ashamed of.


In this 50th year of independence, one of the tests of Jamaica's progress must be whether the Jamaican courts have indeed erected a viable structure of Jamaica's own making; one that fits its sociological patterns. We must ponder whether the approach to this construction has been too timid or too cautious. Can Jamaicans say, in 2012, this 50th year of independence, that they have shown the confidence in themselves which the founders expected?

Interestingly, Lloyd Barnett, in The Constitutional Law of Jamaica, quotes the then Editor of The Daily Gleaner, Theodore Sealey, as reporting on the London Conference at which the Constitution was approved, that "constitutional thinking in England" was that Jamaica had attempted to provide for too many eventualities and alleged that those studying the Jamaican draft Constitution thought "it too static in its reliance on the past and, at the same time, too timid in its caution for the future ... ". Perhaps Jamaica did not trust its future as much as it trusted its past.

If there was ever any truth in this observation, it would be for Jamaican attorneys and Jamaican judges to move beyond the cold words of the written laws and bravely build on it for the present and for the future. Jamaica cannot-indeed, none of the countries in the Caribbean can--afford to sit on their laurels of its past achievements in law and justice. We all must be willing to constantly nurture the growth and development of our indigenous law, for the law must keep pace with the needs, hopes and aspirations of the people.

The search for identity

The notion that a nation's identity should find expression in its legal system, laws and accompanying jurisprudence should not create undue anxiety or consternation. Too often we view law in its formalistic sense, stripped of its sociological foundations, attachments and accompanying folklore. It is true that the identity of a legal system is, in part, determined by its norms and its sources of law. However, as the legal philosopher Joseph Raz explains, the concept of identity is not solely a juristic phenomenon. "Legal systems," says Raz, "are always systems of complex forms of social life, such as religions, states, regimes, tribes, etc."

L.M. Friedman reminds us that legal systems not only possess structure, hierarchy and substantive legal rules, but also a cultural component. The latter is reflected in the values and other factors which bind the system together and which determines "the place of the legal system in the culture of the society as a whole".

The search for identity of a legal system is as legitimate a preoccupation for judges as much as it is a legitimate preoccupation of those politicians, social activists, artists and commentators seeking to define the soul and being of their nation. Thus, it is legitimate to ask whether Jamaican judges have, in the words of Edward Seaga, erected a structure that fits the "sociological pattern" of Jamaica.

We can commence this enquiry by looking at the approach taken by Jamaican judges to the interpretation of their Constitution.

Separation of powers doctrine

There is a particular difficulty, however, in the process of metamorphosis for the Constitution of which we speak in a legal system such as Jamaica's--and generally in the English-speaking Caribbean. This difficulty is produced by the doctrine of separation of powers which is an integral part of our legal systems.

Under the doctrine of separation of powers, put quite simply, the Executive makes policy; the Legislature enacts law and the Judiciary applies the law. Each must be careful with how it interferes with the other. Notwithstanding recognition of the doctrine of separation of powers, there is tension in a developing legal system such as Jamaica's where a new society is being created, a nation is being forged and where judges interpret and apply constitutional provisions. Although judges must not step into the sphere of the Legislature and make law, there is also an expectation that they will recognise the difference in the approach to interpretation or the construing of ordinary legislation, and to the interpretation of the Constitution. For the Privy Council, these constitutions were evolutionary, not revolutionary; so their interpretation could not ignore the political culture from which they evolved. Lord Diplock, in the infamous case of Hinds v. DPP (1975) aka "the Gun Court case", put it this way:
   Nevertheless, all these constitutions have two things in
   common which have an important bearing on their
   interpretation. They differ fundamentally in their nature from
   ordinary legislation passed by the Parliament of a sovereign
   state. They embody what is in substance an agreement reached
   between representatives of the various shades of political
   opinion in the state as to the structure of the organs of
   government through which the plenitude of the sovereign
   power of the state is to be exercised in future. All of them were
   negotiated as well as drafted by persons nurtured in the
   tradition of that branch of the common law of England that is
   concerned with public law and familiar in particular with the
   basic concept of separation of legislative, executive and judicial
   power as it has been developed in the unwritten constitution of
   the United Kingdom. As to their subject-matter, the peoples for
   whom new constitutions were being provided were already
   living under a system of public law in which the local
   institutions through which government was carried on, the
   legislature, the executive and the courts, reflected the same
   basic concept. The new constitutions, particularly in the case of
   unitary states, were evolutionary not revolutionary. They
   provided for continuity of government through successor
   institutions, legislative, executive and judicial, of which the
   members were to be selected in a different way, but each
   institution was to exercise powers which, although enlarged,
   remained of a similar character to those that had been exercised
   by the corresponding institution that it had replaced.


An example of the acknowledgement of the operation of the doctrine of separation of powers can be seen in the recent Jamaican decision which considered legislation to establish the Caribbean Court of Justice (CCJ) namely, Independent Jamaican Council for Human Rights (IJCHR) v. Marshall-Burnett and the Attorney General (2005). In that case, the IJCHR challenged the constitutionality of the legislative procedures adopted in the Government's effort to abolish the right of appeal to the Privy Council and to substitute a right of appeal to the new regional court of final appeal, the CCJ.

The Jamaican Court of Appeal held that the separation of powers doctrine meant that the court could not intervene at the pre-enactment stage of a Bill. The Court held that "the judiciary is the guardian of the operation of the Constitution, to ensure that any law enacted as sought to be enacted conforms with the dictates of the Constitution." Further, it is no part of the authority of the court to restrain Parliament from making unconstitutional laws. The court cannot consider in advance whether, if Parliament were to pass a particular bill, it would result in a valid law. In effect, the court repudiated any notion of "anticipatory review".

In arriving at its decision, the Jamaican Court of Appeal rejected the contention that the case before it was exceptional in that the proposed legislation involved the establishment not only of a supreme court but of one whose decisions will be final and would bind all other courts in the jurisdiction. The court said that, if, after enactment, the proposed pieces of legislation were held to be unconstitutional, the court would deem them void, and any judgments of the CCJ as they applied to Jamaica would be null and void. The consequence of the offending provision would not be immediate and irreversible.

Such is the constraining force of the separation of powers doctrine.

One should not have the impression, however, that the tension in how judges should act in a legal system which is based on the separation of powers of doctrine is easily resolved. In examining the judicial interpretation of the Constitution of Papua New Guinea, academic Peter Bayne states that:
   ... some have identified a broad distinction between, on the
   one hand, an absolutist or literalist approach to interpretation,
   and, on the other, approaches which are based more explicitly
   on a wider range of considerations. Absolutism owes
   something to analytical jurisprudence, in which law is seen as
   a self-contained system, and to a view of the "Rule of Law" as
   formal equality. By this mode, a constitution or a law is
   interpreted according to its literal terms, and recourse to
   extrinsic aids such as parliamentary debates is shunned. There
   are several other features of this mode: a law will be construed
   according to its legal operation, and not by its substantive or
   practical operation in society; the words of the Constitution
   will be taken to have a fixed meaning, and there will be an
   assumption that there is no conflict between constitutional
   provisions; ... The absolutist approach attempts to
   minimise the element of discretion in the choice of result,
   and because it is asserted that this is the result, there is a
   refusal to weigh competing social interest or to take into
   account the policies pursued by other branches of
   government.

   Other modes of interpretation do not assume that a constitution
   can be interpreted only according to its terms
   and in the light of legal concepts. The United States
   Supreme Court, somewhat in the manner of Pound's
   "sociological jurisprudence", recognises that interpretation
   permits discretion, and that it should be
   exercised by a balancing of social interest ...


The framers of the Jamaican Constitution envisaged that Jamaican judges would not adopt the absolutist mode of interpretation; but instead a purposive mode with a view to the organic development of the law. This is how, in Seaga's words, Jamaica could create a structure of its own and, in Manley's words, Jamaicans would develop a Jamaican tradition as a deliberate act of intelligence.

In Riley v. Attorney General (1982) (on appeal from Jamaica), Lord Bridge delivered the judgment of the Privy Council. He approved Lord Wilberforce's comments in another judgement in which he had indicated that the Constitution calls for a generous interpretation. Lord Wilberforce indicated that, by "a generous interpretation", he meant to treat a constitutional instrument such as this as sui generis, calling for principles of interpretation of its own, suitable to its character as already described, without necessary acceptance of all the presumptions that are relevant to legislation of private law.

As former Chief Justice of Barbados, William Douglas, said:
   In performing this duty, West Indian judges should recall to
   mind those apt words written by John Buchan in his Homilies
   and Recreations:

   " ... For law, remember, is not a dead corpus of black-letter
   wisdom. It is an elastic tissue which clothes the living body of
   society* The test of its value is its applicability to, and its
   usefulness in, our everyday life."


A purposive approach

The efforts of the Jamaican courts to apply a purposive mode of construction and yet to demonstrate an appreciation of the doctrine of separation of powers is readily evident in the case law. Before the well-known decision of the Privy Council in the Hinds case, there was the robust and incisive judgment of the Jamaican Court of Appeal in R. v. Trevor Jackson (1974), one of the cases eventually consolidated into the Hinds case.

In the Jackson case, Jamaican Justice of Appeal Graham-Perkins said that:
   ... since the Judicial power of the State is, by the Constitution
   of Jamaica, reposed in the Judicature, then it must follow that
   the legislature cannot, by the device of creating independent
   superior or inferior courts and investing them with part of the
   jurisdiction of one of the constituent parts of that Judicature--the
   Supreme Court--impinge on that judicial power without
   first amending the Con-stitution in the manner provided. If
   Parliament wishes to legislate in respect of that judicial power,
   under the Constitution as it stands, it is to Chapter VII that it
   must turn for the authority so to do. The only legislative
   authority conferred on Parliament by that chapter is an
   authority to confer jurisdiction and powers on the Supreme
   Court. To admit the possibility of legislative encroachment into
   the area of the vested judicial power of the State without a prior
   enabling amendment is, in our view, not only to render
   Chapter VII in general, and s. 97 (1) in particular, meaningless
   and vulnerable to further invasion, but to move inexorably
   toward, or perhaps more precisely, backward, to the
   resuscitation of the situation existing prior to 1880. It is, we
   think, impossible to attribute to the framers of the very precise
   and detailed provisions of our Constitution, and of Chapter VII
   in particular, an intention to permit, either directly or
   indirectly, the unmistakable separation of judicial power and
   the integrity of the Supreme Court to be so very easily eroded.


The Court of Appeal did not have to wait on the Privy Council to tell them their proper role. Yet, there are those who have misgivings, who harbour doubts about the intellectual integrity of our judges.

Extracts from judgements such as this demonstrate that the Jamaican judiciary has, over the 50 years since independence, never underestimated their role in protecting the Constitution and have not been afraid to step up to do so.

To quote the Former Chief Justice of Barbados, William Douglas:
   We have come a long way from the days when Lord Mansfield,
   in giving advice to a friend about to sail for the West Indies to
   take up a judicial appointment, told him: "Give your
   judgments, but give no reasons. As you are a man of integrity,
   sound sense and information, it is more than an even chance
   that your judgment will be right: but as you are ignorant of the
   law, it is ten to one that your reasons will be wrong.


We have come a long way from Judge Lucas' remonstrance against lawyer judges. We are now in the position where we have an ever-increasing body of West Indian law and it is the duty of the judiciary to preserve it, to improve it and to make it even more vibrant.

Bayne offers us salutary advice. He indicated one important reason why the absolutist approach should be rejected. He said that:
   The use of English common law and other outside authorities
   to influence the construction of the Constitution deserves
   particular mention, for these precedents bring with them the
   social philosophies that lie behind the particular decisions.
   These philosophies are related to quite different social contexts
   which could well be at variance with Papua New Guinean
   circumstances.


The struggle to create Jamaica's own path was also seen in the case of Watson v. R. (2004), in which the Privy Council (on appeal from Jamaica) held, inter alia, that basic humanity required that a person convicted of murder should be allowed the opportunity to show why sentence of death should not be passed on him, even if statute established a mandatory death sentence for the offence. This position had previously been decided by the Privy Council in Reyes v. R. (2002) (a decision on appeal from Belize); R. v. Hughes (2002) (a decision on appeal from St. Lucia) and Fox v. R. (No. 2) (2002) (a decision on appeal from St. Kitts and Nevis).

The Jamaican Court of Appeal explicitly expressed their discomfort in being bound by decisions from other jurisdictions in which the social conditions were different* President Forte said that it was obvious that the social conditions existing in Jamaica were quite different from those in Belize, St. Lucia and St. Kitts and Nevis, and that it seemed to him that Parliament had attempted in the legislation to craft out the types of murders which, committed in any circumstances, would still require a sentence of death.

Justice of Appeal Panton said that it would be inaccurate to say that murder in Jamaica was overwhelmingly a domestic crime, as it was said to be in England and Wales. This was because most murders in Jamaica are committed by armed bandits who have in their possession illegal guns and ammunitions and commit rapes, robberies and burglaries while killing unsuspecting, armed civilians, and because police officers are also their prime target.

In response, Lord Hope of Craighead observed:
   Their lordships accept of course that the social conditions
   which currently exist in Jamaica are different from those in
   Belize, St. Lucia and St. Christopher and Nevis. And it is also
   true that the amendments which were introduced by the 1992
   Act were carefully drawn in order to modify the circumstances
   in which in Jamaica the death sentence was to be mandatory....
   But these points of difference do not remove the fundamental
   objections to the mandatory death sentence which lay at the
   heart of the decisions in Reyes, Hughes and Fox (No. 2) ...


The majority of the Privy Council went on to add as follows:
   In the Court of Appeal and in argument much emphasis was
   laid on the very high incidence of murder and the widespread
   use of firearms in Jamaica. These facts are well known to the
   Board and are, regrettably, notorious. Criminal conduct of the
   kind described is not unknown in the United Kingdom. So long
   as those conditions prevail, and so long as a discretionary
   death sentence is retained, it may well be that judges in Jamaica
   will find it necessary on orthodox sentencing principles, to
   impose the death sentence in a proportion of cases which is, by
   international standards, unusually high. But prevailing levels
   of crime and violence, however great the anxiety and alarm
   they understandably cause, cannot affect the underlying legal
   principle at stake, which is that no-one, whatever his crime,
   should be condemned to death without an opportunity to try
   to persuade the sentencing judge that he does not deserve to
   die.


One may agree or not agree with the Privy Council here. I must confess that I am not an admirer of the Privy Council judgments in death penalty cases, as I believe that the Privy Council decides such cases on ideological grounds rather than jurisprudential logic. However, I hasten to add that my passing observation is not the important point. In the case, as in many others, the Jamaican Court of Appeal demonstrated an inclination to further that generous approach of construction which was different from the absolutist method of construction. They adopted an approach which clearly demonstrated that they understood that they must consider the sociological context in which the law operates.

But the question remains: have the Jamaican courts been bold?

In Pratt & Morgan v. Attorney General (1993), the Privy Council held, inter alia, that in any case in which execution is to take place more than five years after sentence, there will be strong grounds for believing that the delay was such as to constitute inhumane or degrading punishment. In delivering the judgment of the Privy Council, Lord Griffiths acknowledged that the Jamaican Court of Appeal had rightly held that it was bound by the majority decision of the Privy Council in Riley v. Attorney General of Jamaica (1983), which had held previously that the holding of the appellants in custody for more than six years before their appeal was heard by the Privy Council would contravene their rights and would be unconstitutional. As a result of being so bound, the Court of Appeal could not consider whether the appellants in the Pratt & Morgan case had been subjected to inhuman or degrading punishment or treatment within the meaning of section 17(1) of the Constitution.

This raises an important question: how can we expect a court to be bold when it is not the final court, but is bound by the decisions of a higher foreign court? How can it be expected to "erect a structure of our own" in these circumstances? Is this not a compelling reason for abolishing appeals to the Privy Council?

The answers are far from clear. If the Jamaican courts were ever accused of not being sufficiently bold in the 50 years since independence, the blame could not lie solely in the existence of the Privy Council as a higher court. There have been times in its history when the English Court of Appeal has been regarded as revolutionary, bold and innovative, notwithstanding that the House of Lords was superior to it and capable of wrapping hard on the knuckles of its judges. Have the Jamaican courts been short of activist Jamaican judges? Whither the Jamaican Mr. Justice Denning (as he was in the Court of Appeal)?

Other interesting questions arise by the apparent intention to substitute the Privy Council with the CCJ. When the Privy Council is replaced by the CCJ as Jamaica's final court of appeal, will this concern be automatically lessened? Will Jamaican courts be bolder when their higher court is a regional one? The answers are also not clear or easy.

Jesse Merriam points out that lawyers and courts are often uncomfortable with the notion that constitutional law is an evolutionary and creative enterprise; they fear that such a notion will imply that judicial power is arbitrary and therefore illegitimate. There is scope, therefore, for the rest of us--the politicians, the academics, the commentators, the press and the common citizens to undertake a process of self-examination. Are we comfortable with a judiciary which does not merely follow the absolutist mode of interpretation, but boldly follows a purposive or generous mode of interpretation? Do Jamaicans want a bold and innovative local court? Do Jamaicans like bold and courageous judges?

The answers may reflect adversely on the Caribbean's broader notions of self-confidence and national identity which are not legal in nature or origin, but cultural and sociological.

Pace-setting and bold?

There are not many cases, as far as I have been able to discover, in which Jamaican courts have been regarded as being bold or revolutionary. One clear exception comes to mind. In a 1994 decision--The Robert Marley Foundation Ltd v. Dino Michelle Limited--the Jamaican Supreme Court recognised the tort of appropriation of personality, notwithstanding the fact that the tort had barely been recognised in Commonwealth Courts and had appeared to be rejected outright in English courts. The Jamaican Supreme Court in the Bob Marley case gave full recognition to the new tort of appropriation of personality in "protecting Bob Marley's face". The Supreme Court established the existence of a property interest as distinct from a privacy interest attached to personality. As Justice Clarke noted:
   Just as the law recognises property in the goodwill of a
   business, so must the law recognise that property rights attach
   to the goodwill generated by a celebrity's personality. On that
   basis, those rights are violated where the indicia of a celebrity's
   personality are appropriated for commercial purpose.


The court went on to hold that Bob Marley, as a celebrity both at home and abroad, had an exclusive right, which would survive his death, to the use of his name, likeness or image, which could be commercially exploited by him or his assignees, and further that invasion or impairment of this exclusive right, resulting in damage would constitute this distinct tort of appropriation of personality which was different from the well-established tort of passing-off.

Given the talents of its judiciary and the depth of learning and skill at the Bar, there have been too few instances of Jamaican courts making decisions which could be regarded as revolutionary or ground-breaking. There have been too few instances--albeit there have been some--in which Jamaican decisions have been cited by and relied on in other Caribbean jurisdictions or in other Commonwealth courts. With such a rich heritage, I believe that the Jamaican courts can-and should--in the next 50 years make a greater impact on the jurisprudence of the West Indies and on the world.

How to be bold?

In his paper, "Constitutional Litigation: a Search for Principle", written on the occasion of Guyana's 21st year of independence, the Guyanese professor of law, R.W. James said that:
   I start with the proposition that the impact of the judiciary in
   protecting rights and defining duties in constitutional litigation
   is determined largely by the self-perception of the judges of
   their role in the state structure. At one extreme one might
   conceive of a bench which plays the role of supreme formulator
   of social, economic and political policies. At the other extreme,
   the reality might be, that in the face of obvious discrepancies
   between governmental theory and Constitutional expression,
   on the one hand, and governmental practices, on the other, the
   judge might conceive of his role as being subservient to the
   dictates of the political regime. Examples of the former are,
   possibly non-existent in developing countries, but not so the
   latter, instances of which abound.


Professor James' comments raise the question of whether the Jamaican judiciary needs affirmation of its pivotal role of nation-building. A purposive or generous approach to Constitutional interpretation requires the judge's self-confidence in themselves and their role. So does a willingness for judges (particularly those in the appellate court) to be bold and pioneering in their discernment of legal principles. This, no doubt, will be influenced by how they are treated and regarded by other branches of government.

In the next 50 years, when Jamaica closes another book of history and opens yet another, Jamaican judges must be able to demonstrate this self-confidence. The other branches of government must be able to demonstrate that they have fostered and encouraged this self-confidence.

Jamaica needs a judiciary which is willing to be the guardians of the Constitution. Jamaica also needs a judiciary which is not afraid to foster and create Jamaican traditions and a Jamaican jurisprudence as a "deliberate act of intelligence". The mastery of both elements will be the essence of their success. They must know it and the people must know it.

Kenny D. Anthony, Currently Dr Anthony is the Prime Minister of St. Lucia, a post he previously held from 1997 to 2006. He was re-elected in 2011.
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Author:Anthony, Kenny D.
Publication:Social and Economic Studies
Date:Jun 1, 2012
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