Dudley J. Thompson O.J. Q.C.
111 1111 1111 Ill 1111 1111 1111 1111 1111 11111111
SARAFINA • Vantage Point 44 Portview Rd #8 • P.O. Box 2989 Kingston 8 Jamaica West Indies
• Telephone (809) 969-9671 • Fax (809) 969-1042
MANLEY MEMORIAL LECTURE (1996)
The studyof 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 to direct the societal relationship
within the area of their jurisdiction.
The legal development of newly organized ex-colonies like the West Indies
presents a much easier spectrum to examine, than older societies . On the other
hand they have a more rapid trace of movement as by definition their span is so
much shorter and therefore presents a telescopic process of human exercise.We
begin our own legal development at the beginning of the Century, which means
the terminal stages of colonial hegemony. Like education, language and a Civil
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Service we inherit 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 the followers.
Secondly,The educational system was a thin crust of elitist interest where a few
good secondary schools copied in detail both the letter and the spirit of the
English Public School system. This still continued to satisfy the requirements of
children of the gentry and here 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 entirely 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 3 Rs , Reading, Writing and Arithmetic. The Churches did a great job and
covered almost a third of the children of school age. It is to be remembered that
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much later, on Independence in 1962 over one half the population of Jamaica
was illiterate. This was some 300 years after continuous Colonial rule.
Thirdly there was strict class differential firmly guaranteed by this Colonial
system. That 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 growth, development or mobility 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 Servants Law or the Vagrancy Law set the tone for the 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 on to
any 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 unskilled labour were very limited.
A few were apprenticed to tradesmen, carpenters, shoemakers, masons, tin
smiths etc. The very brightest were fortunate to become teachers, although the
4, I
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vacancies were severely limited. Some entered the the juniormost ranks of the
much sought after Civil Service. For girls it was far worse. They became nurses ,
postmistresses, dressmakers.The majority stayed home 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 social discontent began to grow against
the limitations of colonial restrictions and the lack of land for cultivation. .People
began to pay attention to to local spopkesmen and preachers. The causesof
Paul Bogles rebellion and the ruthlessness with which it was put down, the
growing disrespect for the unfairness of the law, the poems of Cambell and
P •t..,Q*'P---t
Claude Mckay and above all the lectures of Marcus Garvey began to give
legitimacy to the growing groundswell of discontent. This was the period that saw
the great migratory movements of semiskilled and unskilled labour to the Cuban
sugar estates, to Panama to work on the construction of the Panama Canal to
the U.S.A. and elsewhere. The growing numbers of the unemployed and the
very poor wages offered to the few lucky ones who got work began to show itself
in public meetings and vocal demands for change. The manifestations of
dissatisfaction at the waterfront followed shortly by the Sugar estate riots of
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Frome in Westm oreland which spread widely were the sparks that set off the
violent demands for a more egalitarian society. 1938 was a landmark year
throughout the region. At the same time as Uriah "Buzz" Butler was leading the
oil field workers of Trinidad, our Alexander Bustamante stood out literally head
and shoulders among the popular leaders of the working class and the Trade
Union Movement received its baptism. Labour leaders began to demand not only
better wages and working conditions but also protective legislation and what was
more important constitutional change.
The United Kingdom responded to this new situation by sending out to the
Caribbean the West Indies Royal Commission of Inquiry as to the nature and
causes of the disturbances and to make recommendations to prvent their
recurrence. Lord Moyne and a formidable body came from the U.K. to examine
the situation in the region.Many 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. Bustamante who was acknowledged as the
people's champion made it clear that there had to be real changes in tha
society. Strongly supported by Norman Manley and others they demanded
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greater participation in the government and the legislative process. It was a
direct challenge to the then operating Constitution and Colonial restrictions. A
spate of legislation followed the findings of the Commission . One of the most
important being the Act to provide for Universal Adult Suffrage in 1944. following
years of demand by at least one political party. The Education Budget was
substantially increased, some Government Scholarships were offered . Trade
Unions were recognized in law and a list of Labour laws were enacted. These all
reflected the mood of the moment and indeed pointed out the road ahead where
the elements of democracy were emerging and popular peoples participation
began to appear. It was a transitional period and Junior Ministers under
Executive Secretaries were seen as a half-way house to a fuller state of
responsibility. By now there was much active discussion on Independence. Many
Acts were tabled and were being debated by a very different Parliament,
consisting partly of those elected 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 Alexander Bustamante, J,A.G. Smith and
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Norman W.Manley. They, all, in varying degrees demanded more responsibility
in Government and more power in controlling their own affairs.There were many
areas in which the laws were bringing about change.The University of the West
Indies was set up by Royal Charter. and there were whispers of closer regional
association.
In 1950 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 later developed to become a a full scale Faculty of Law in 1963.
Development in the legal apparatus began to reflect many new considerations
of fundamental freedoms of the individual. It is notewothy that during this really
creative period Jamaica did not act alone. I can recall'outstanding lawyers like
Sir Hugh Wooding of Trinidad and Professor Zelman Cowen of Australia serving
on University legal Committes helping to restructure the instruments to fuller
national expression. New concepts of social justice and concern for the
underpriveleged
were being implemented in our laws.
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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, in
1973 The Town and Country Planning Act, The National Insurance and Social
Security Act. Guyana enacted laws dealing with Matrimonial Causes, Succession
and matters arising directly out of her particular ethnic distribution. Jamaica
legislated for the Family Court, The Abolition of Illegitimacy and later the
Ombudsman Law Trinidad &Tobago introduced statutes such as the Industrial
Stabilization Act and other related legislation which paved the way for collective
bargaining and similiar industrial differencies to be settled by judicial process
These and other laws are a far way from the diktat of the Law and Order
systems of colonial days. and demonstrate the development of the law as an
instrument in a developing society where the input of the people themselves the
governed had a contractual arrangement with the governors.
This period also was enriched by the cooperation and joint consultations which
took place between the various legislatures of the region
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At this exciting period of our history ,the attitudes and discussions focussed
almost exclusively on the changes in the machinery of government. It is of
course very easy in hindsight to see what to us in later experience will appear
as shortcoming by those who had overall responsibility for shaping our destiny .It
would seem now on reflection that without derogation to the necessary
institutional planks that were being laid down in the foundation of our nation that
far too little attention was paid to the formation and delineation of the type of
society they envisaged for the New Jamaica in the next century and beyond.
Legislation by the U.K. which gave birth to the West India Federation is of
Cardinal importance and its dissolution after a very short period leaves many
questions and challenges to be faced. The period of the Federation however
short lived as it was had its influence.One example was that in a brief moment of
time it offered us a glorious exposure and record of the West India Court of
Appeal. If there ever existed any doubt as to our qualification and ability to
adjudicate the law at the highest level the West India Court of Appeal should put
that doubt to everlasting rest,
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Immediately following the dissolution of the Federation the laws of the countries
were concerned with making their own constitutional adjustments and were fully
occupied with new rules and regulations, Ouster Clauses, Jurisdiction of
Appellate Courts etc. Somewhat later in a different political scenario W.I.
legislators and lawyers' associations have been making regular contacts and
meeting with similiar Commonwealth bodies.These meetings at the very high
Summit and Ministerial and Judicial levels have establfbished a communication of
ideas and a healthy cross-fertilization in the legal fraternity of the
Commonwealth.This period is 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 those of
N.N.Nethersole, P.M.Sherlock. D.T.Guervan and others were busy laying the
foundations for and all buttressing the new Independence Constitution.
After the 1938 riots and leading up to the period of Independence in 1962, the
improved social and economic standards among the people generally as seen in
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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 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 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 Caribbean
Development Bank and all the ramifications and spill-offs from these, transferred
the focus of legal scrutiny directly and squarely under our own attention. It has
hardly ever been noticed that this period of readjustment within a short time
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demonstrates the energy, resilience and capaccity as well as the imaginative
and creative ability of the legal professon within the Caribbean.which had but
recently been released from the cold clasp of colonialism.
Let us turn our attention to the road ahead. We have travelled from emancipation
through colonialism to independence.We have experimented with Federation
through to what we may call the possibility of a wider association with other
Caribbean countries including the non-English speaking sister countries.This
adds yet another dimension to the process as the law must reflect not only the
changes of time but of variations in other directions. They must mirror these
changes in a society which show decisive changes in sophistication . The future
always begins today. The Commonwealth as demonstrated above provides a
platform for exchange of views and with that, an updating of the laws. Today
organized crime , international terrorism and network associations reveal a most
sophisticated level of cooperation in such areas as money laundering, drugs,
fraud and political feuds.We must be prepared today, not tomorrow to respond
to these new developments from illegal operators some of whom control illegal
funds far exceeding the entire budgets of small nations like ourselves. External
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help is vital. It requires not only the help of international agencies like Scotland
Yard or Interpol but very often revision and amendments in our own legal
procedures as well, as in the laws themselvesConditions do not remain static
and therefore the laws must be altered to adjust to these changes. There was a
time when the laws of England sent a man to the gallows for stealing a sheep.
Subsequently the society expressed itself less harshly. Equity came into being to
add certain flexibility to the administration of Justice We have inherited much
from the English system of Justice and our constitution keeps us tied to it in
more ways than one. The principle of "stare decisis" is a case in point. This
doctrine of stare decisis . inhibits change and social conditions demanded in a
changing society by compelling adherence to previous decisions. It is typical of
British law that they have to a certain extent made a change modifying that
ancient and rigid rule "quietly and by a side door so to speak"Lord Gardner in a
practice Note in 1966 in 1 W.L.R. 1234 in the House of Lords decided "to modify
their present practice and while treating former decisions of the House of Lords
as normally binding to depart from a a previous decision when it appears right to
do so" Lord Denning, that famous Master of the Rolls, and certainly one of the
leading luminaries of modern English law, was not the only one to express joy
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and relief on the slackening, if not the entire removal of that particular hobble .
For some time and continuing, there has been an ongoing debate as to the right
to appeal to the Privy Council. _There is a growing feeling that the time has now
come to establish our own Caribbean Court of Appeal, If we are to establish
such a Court I should like to see some serious alterations in the curriculum for
legal training as well as our methods of selecting our Judges for that Court.
We have indeed travelled far down the road from our own Colonial
restrictions in the past. We have also to our credit retained by and large the
traditional English system of law and to our gratification an exemplary judiciary.
Since a system of law reflects not only the mores and standards of our time but
signals the direction in which that society intends to go we have to examine
those trends that should give us some indication of the road ahead.. As a small
region of the world and perhaps moreso because we have comparatively weak
leverage internationally it is incumbent on us to search and find our niche among
the large international and regional associations that are rapidly evolving.
International activity such as recently took place in GATT, UNCTAD, and the
URUGUAY ROUND include our concern in matters of foreign trade just as much
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as our membership in the United Nations, UNESCO, and the Law of the Sea.
require our preparedness to play our part as well,as to secure our interest. To
give one single example of future trends, the Protection of Intellectual property,
Copyright, Patents etc. These are here now under active
consideration. Communications and freedom of broadcvast, cable license and
use of the 'dish' are all matters of current concern. We can no longer afford the
luxury of delay or indifference on such critical issues as to whether we face these
major changes or justify the description as "single specks of dust" in the
Caribbean. .Others describe us as colonies in their backyard.Certainly as a group
we qualify to be considered on performance as a viable Association of
Caribbean Nations.Our membership in the United Nation alone and the changing
nature of that institution, makes our own concept of Human Rights a matter of
more than theoretical abstraction. Such conferences like those related to the
Uruguay Round which can easily be considered the largest and most
comprehensive trade agreement in history are designed to shape internatonal
trade relations for the next century at least. It is our bounden duty to see that
these agreements are based on order rather than force and to examine each line
and intervention at such meetings with knowledge, and to observe that the
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movements and changes in international law proceeds at a global parallel with
our domestic law and not contrary to it.
Unfortunately very little is known about the significant part played by
small countries like Jamaica in these important global affairs.We have had many
of our own occupying pivotal roles on these international bodies Names like the
late Hon. G. Arthur Brown, as Deputy Secretary General of the U.N.D.P., Hon.
\Lucille _M air, Miss Angella King ,Hon Rex Nettleford 0.M., and a host of others
have been carrying our flag proudly in signal leadership. Rt.Hon Michael Manley
was awarded the honour not in his own country but by the United Nations for his
long and consistent fight against apartheid. These outstanding contributions are
not limited to Jamaicans. Other luminaries like Sir Shidrath "Sonny' Ramphal.of
Guyana, past Secretary General of the Commonwealth, Dame Neita Barrow ex-
Governor of Barbados and others all have played their great roles of distinction
in helping to shape events for the future.
Our constant role in the field of Justice which is becoming more and
more a matter for concern is the current topic of Human Rights. Jamaicans over
the last five decades or so to my certain knowledge have applied their legal and
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other skills in this regard. Countries like Kenya, Bahamas, Bermuda, Belize,
Namibia and others have benefitted from our contributions to their struggle. It is
important and timely to know that this particular struggle is far from over. We
must prepare ourselves for the problems asssociated with the protection of
human rights looming in large proportions before us.Popular egalitarian
ideologies often fail to distinguish between Equality and Non-discrimination, in
the context of Human Rights. In the former case we refer to equal treatment to
those equally situated. In the latter we affirm that we cannot accept as grounds
of distinction ,such features as race, gender, religion etc. Our position on such
international bodies as mentioned demands that we play our part with knowledge
of the element of Hegemony on the one side and the principle of Subsidiarity on
the other.Today we face such problems as the Helms-Burton Law of the U.S.A
and similiar laws such as those relating to Iran and Libya. Our policy as seen
from the purely legal point of view as distinct from the political consideration
may well assume that our role in Human Rights situations in international law
ought to be to strike a correct balance between hegemony and consequent
interference on the one hand and individual sovereignty and subsidiarity on the
other. These are not matters far away and of no interest to us. Incidents like the
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Noriega Affair, the blockade of Cuba must remind us with striking clarity that
International law on the whole and the legitimacy of Human Rights in particular,
depend largely on the ability to preserve the balance between intervention in
State domestic affairs on the one hand and the respect for State autonomous
sovereignty over their own affairs on the other. Recent events dealing with
extensions into our sovereign areas on narcotic search and money laundering
are matters of current concern.The request for hijackers to land in Jamaica are
clear examples of us having to take hard decisions. These are not as infrequent
as we may think. Lawyers and indeed those who have to take the advice of
lawyers may well resolve their dilemma by agreeing on a minimum core of
fundamental principles of international law and adoption and implementation of a
single standard of application.
These are not hypothetical dreams or futuristic fantasies. It was brought
visibly before me a short while ago when I came face to face in Namibia on the
eve of her Independence when as part of a U.N.team observing election conduct
I came across a team of Jamaican policemen (including our own Trinity)* who
were part of a U.N. International team sent down there to assist in the
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preparation for election and to help train a new indigenous Namibian Police
Force. This presented to me in real flesh and blood terms how the United
Nations (including us) had mushroomed from being just a peace keeping
debating body to become a multi-disciplinary peace building body.Out in the
desert area of the Kalahari I saw a group of Trinidadian and Grenadian ladies of
the U.N.body maintaining a station and cooperating withcivilian components
providing humanitarian assistance to refugees and children through UNICEF.In
fact the U.N efforts may be seen as moving from sterile resolutions in New York
and Geneva to operations in the field. Our Government with a proven track
record must be further prepare for our role in the future. We do not overrate
ourselves in great power terms but the quality of our foresight and intervention
not only earn the admiration of the developed world but establishes our owm
moral basis for requests of our own in this interdependent wold. Recent events
demonstrate the necessity for our forward preparation. Events in El Salvador,
Cambodia, Haiti, Guatemala all demand attention and treatment in different
form. In El Salvador the request was for U.N.aid to assist in the negotiations
between Government and rebel forces (FMLN) which after a long drawn out
battle and many lives had reached an impasse. The U.N. helped to settle the
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matter with the San Jose Accord. In Haiti, next door the U.N. Mission (including
Jamaica) went there to mitigate the human right abuses by a de facto
government and to create conditions for a return to a democratically elected civil
government.
Thus more and more as the world and the U. N. changes there will be
conflicts and disturbances of a domestic nature requiring humanitarian
assistance and even political guidance. If neglected they may become a threat to
our security. The influx of refugees is not unknown to us although so far only on
a small scale. It is only by the careful study of the law and careful analysis that
we can not only decide when., how, and whether we can play any part, but, and
this is most important ,we should take care to preserve our own position where a
country does not use their intervention in the domestic affairs of another under
the pretext of assistance to advance their own interest.
Finally I have tried to trace the legal developments in this small country
from the limitations of Colonial times to our present role where under the Rule of
Law we now occupy a position in international affairs far exceeding that of much
r_.
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larger and richer countries and makes me proud to call myself a son of the
Caribbean.
