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Dudley J. Thompson O.J. Q.C.
1111 WI 1111 1111 1111 1111-1111-1111=1111
SARAFINA • Vantage Point 44 Portview Rd #8 • P.O. Box 2989 Kingston 8 Jamaica West Indies
• Telephone (809) 969-9671 • Fax (809) 969-1042
Th_e_study of any legal system presents us not only with the state and mores of
the contemporary society but identifies the sources of power within that society
and the projected development within that group and the steps undertaken by
them to enhance and preserve their interests for the future. It illustrates how the
powers that be devise and implement a plan todirect the societal relationship
within the area of their jurisdiction.
The legal development of newly organised ex-colonies like the West Indies
presents a much easier spectrum ffor examination than older societies. On the
other hand they have a more rapid trace as by definition their span is so much
shorter and therefore presents a telescopic process of legal exercise.
We begin our own legal observations from the beginning of the Century, which
means the terminal stages of colonial hegemony. Like education, language and
a Civil Service we inherited a Westminster type democratic process which has as
an integral part the Legislature. Let us examine the main features of the period
at the beginning of this century. .We had a White (largely English) plantocracy
firmly identifiable as the group in economic power.Sugar was king ,tobacco,
logwood, fruits etc were his supporters..
Secondly ,the educational system was a thin crust of elitist interest where a few
good secondary schools which faithfully copied in detail both the letter and the
spirit of the English Public school system.This satisfied the requirements of
children of the gentry and where a few token blacks were admitted. These latter
were either on scholarships or sons and daughters of the very few indigenous
Jamaicans who happened to have property and were exceptions to the rule..The
elementary schools were largely in the hands of the Church which had very
limited resources. They did a great work and pioneered the system which was
really designed to teach the offspring of workers, two generations from slavery
the 3Rs. Reading Writing and Arithmetic. It was a great help and covered about
a third of the children of school age. .It is to be remembered that at
Independence in 1962 over one-half of the population of Jamaica was illiterate.
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Thirdly there was strict class differential firmly guaranteed by the Colonial
system. This administration emphasized Law and Order and justified itself as an
expression of Divine Will.The law then was not an organ for the implementation
of development or growth in the society . It was a conservative charter for
preventing change and its officials consisted of administrators and police whose
main concern was "preserving the Queen"s peace. Laws like the Master and
Servant's Law or the Vagrancy Law set the tone for legislation of the day.
These parameters set the scene for Jamaican life a society where the
plantocracy of about 2% of the population controlled about 84% of the arable
land.A country in which less than 5% of the children of school-age went to a
secondary school where the curricula were clearly stamped with the image of
the English public school.Job opportunities for school leavers where the majority
went directly into poorly paid manual labour were very limited..A few were
apprenticed to tradesmen, carpenters, shoemakers, tin-smiths etc. The very
brightest were fortunate to become teachers, or entered the junior ranks of the
much sought after Civil Service. For girls it was far worse They became nurse,
postmisstresses, dressmakers and a few stayed to work on the land.
The population was growing far ahead of the job opportunities offered. Wages
were low on the estates and a seething discontent began to grow against the
limitations of colonial restrictions. People began to pay attention to local
spokesmen and preachers . The causes of Paul Bogle's rebellion and the
ruthless ness by which it was put down , the poems of Claude Mckay, and above
all the lectures by Marcus Garvey began to give legitimacy to the growing
groundswell of discontent This was the period which saw the great migratory
move ments of unskilled labourers to the Cuban sugar estates and to Panama to
work on the Canal construction and to the U.S.A. . The growing numbers of the
unemployed and the very poor wages offered to the few who got work began to
show itself in meetings of vocal demand for change. The Sugar cane riots in
Westmoreland which spread rapidly among the workers not only on the estates
but at the waterfront and elsewhere were the spark that set off the violent
demands for a more egalitarian society.1938 was a landmark year in this
direction. It was the same time as the Oil field workers disturbances in Trinidad
and which threw up in other islands a new set of popular leaders, foremost of
which were Alexander Bustamante of Jamaica and Uriah "Buzz"Butler, Of
Trinidad.These popular convulsions marked clearly the development from Status
to Contract. Labour Leaders began to demand protective legislation.and what
was more important Constitutional change,
The United Kingdom responded to this new situation by sending out to
the West Indies a Royal Commission of Inquiry as to the nature and causes of
the disturbances and to make recommendations to prevent recurrence. Lord
Moyne and a formidable body came from the U.K. to examine the situation in the
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'Caribbean.. Most of the hearings were held in public and it soon became clear to
the Commission that this was a people's movement demanding much more than
increased wages, They demanded greater participation in the Government. It
was a direct challenge to the then operating Constitution and Colonial
restrictions. A spate of legislation followed the findings of the Commission. Adult
Suffrage was passed in 1944 after years of demand by at least one political
faction. The Education Budget was substantially increased and some
Government Scholarships were offered.Trade Unions were recognized in law
and a spate of Labour laws were enacted. These all reflected the mood of the
period. ,and indeed pointed to the road ahead .Constitutional changes introduced
a modified status of Junior Ministers under the Secretaries of the Executive and
was a halfway house in training for the full responsibilities of Independence
which was now on the table for discussion by a different Parliament, constituted
by the people after the Adult Suffrage legislation of 1944.
During this period of political and legislative ferment we saw and heard
the polemics of such patriotic giants as Norman Manley . Alexander Bustamante
and J.A.G.Smith demanding in various degrees more responsibility in
Government and more power in controlling their own affairs, There were other
areas in which the laws were changing. The University of the West Indies was
set up and early whispers of Regional Association began to be heard.
In1950 the U.W.I.established an Institute of legal research which was
clearly preparatory to assuming a state of laws more relevant to our emerging
society, This developed to become a full scale Faculty of Law in
1963. Development in the legal apparatus began to reflect the new
considerations of fundamental freedoms of the individual, national
expression,new concepts of social justice and concerns for the underpriveleged.
IN 1972 The General Legal Council was formed. One of the immediate results
of this was a growing interchange of ideas and cooperation within the Caribbean,
both at the legal and the Executive level.eg in Barbados we saw legislation such
as the Agricultural Development Act. The Law of Diminished Responsibility 1973
The Town and Country Planning Act,the National Insurance and Social Security
Act, Guyana produced laws dealing with Matrimonial causes, Succession and
matters arising directly out of her particular ethnic distribution. Jamaica legislated
for the Family Court, Adoption,the abolition of illegitimacy etc. Trinidad and
Tobago introduced statutes such as the Industrial Stabilization Act and other
related legislation which paved the way for collective bargaining and related
industrial disputes to be settled by judicial process. These are but a few
examples of the nature of the development of the laws as well as the
cooperation between the various legislatures which grew into each other.
At this exciting period the attitudes and discussions focussed almost
exclusively on the changes in the machinery of government. It is easy in
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' hindsight to see that our leaders and all those responsible for shaping our
destiny through legislation paid little or no attention to the type of society they
envisaged for the New Jamaica in the next century and beyond
The Period of the W.I.Federation was short lived but among other
things it introduced even in that brief moment of time the glorious exposure and
record of the W.I. Court of Appeal.If there ever existed any doubt as to our
qualification to administer the law at its highest level this Court should put that
doubt to everlasting rest.
Since the dissolution of the W.I.Federation and immediately following it
the laws were greatly concerned with Constitutions, rules and regulations.
Ouster Clauses Jurisdiction of Appelate Courts etc. Comparatively recent the
W.I. legislators and lawyers associations have been making regular contact and
meeting with similiar Commonwealth bodies These meetings at very high
Summit and Ministerial levels held regularly established a communication of
ideas and a healthy cross fertilization in the legal fraternity of the
Commonwealth. This period was also marked by the burgeoning of many
National institutions and the supporting legislation providing for the skeleton of
nation building and the assumption of responsibility in the fledgling nations,
Institutions like the Bank of Jamaica, the Development Bank,The Welfare Act
and the Jamaica Welfare Cottage industries came into being .Names like
N.N.Nethersole, P.M.Sherlock. D.T.Guervan and others were busy laying the
solid foundations all butressing the new Independence Constitution.
After the 1938 riots and up to the period of Independence in 1962 the
improved social and economic standards among the people generally as seen in
housing, agriculture,industry communications and other activity provided
expanding necessities and opportunities for legal practitioners. .This was a period
of marked universal restlessness and at the same time the entire region
emphasized a feeling that the needs of an emerging West Indian society
justified the introduction of a legal system which having as it its objective the
training and education a new kind of legal profession which hopefully would be
more aware of social and economic reality of the region. A desire grew out of the
new nationalism to construct a system capable of reforming the old legal system
and to make it more adaptable and available as legal aid to the community.
It became obvious that there were many social and other problems
which grew out of our new relationships within each island and indeed within the
Caribbean which were not contemplated in the laws which we had inherited from
the U.K.Some examples of these were Family Law, Land Law, Tenure,
Succession etc and subsequent political changes which involved the
W,I.Federation,the establishment of Carifta the Caribbean Community, the
