Need to Know Topics (All Modules)

Need to Know Topics (All Modules)

Dajanae Dawkins

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N/B:These are small, often overlooked topics and subtopics that your teacher may have missed or you may have overlooked. From my experience as someone who disregarded small topics in Unit 2 (and unfortunately, more recently for Unit 1), only to have an entire section dedicated to one: try your best to know a thing or two on the following:

💅🏾Judicial Service Commission

Section; 98, 100, 103, 104, 106, 111-113 (of Constitution of JA)

Composed of the following (Section 111):

The Chief Justice (Chairman)

The President of the Court of Appeal

The Chairman of the Public Service Commission

appointed people from GG

Functions (Section 112)

1.Appointments; advises the Governor General to appoint judges

2.Promotions and Transfers; advises promotions, temporary appointments and transfers in the judiciary

3.Disciplinary Control; exercises disciplinary control over judges, power to remove judges for misconduct or inability

4.Study leave and separation; advises on matters related to study leave and the separation of judges from the judiciary

Section 113; tenure and removal of judges

Importance

The JSC plays a crucial role in maintaining the independence and integrity of the judiciary in Jamaica. By overseeing the appointment, promotion, and discipline of judges, the JSC ensures that the judiciary remains impartial, competent, and free from political influence.

Importance of independence in the judiciary

1.to avoid political bias

2.to avoid influence from outsiders

3.judges have security of tenure (due to the only three ways of removal)

paid from a special fund; consolidated fund

4.Administrative independence;

-control by the courts over the administrative decisions that bare either directly or indirectly on the exercise of judicial function; run their court how they please no ministry does do

💅🏾Public Service Commission

In many Commonwealth Caribbean states, the PSC is the body responsible for appointments, disciplinary actions, and terminations of public officers. Ministers generally lack the authority to unilaterally discipline or terminate public servants without consulting the PSC.

The purpose of the establishment of the Commission was to provide for an independent and impartial body charged with the responsibility of dealing with matters relating to the appointment, removal and exercise of disciplinary control in respect of public officers

Section 125 of the Jamaican Constitution, for example, vests the power to remove or discipline public officers in the Governor-General, acting on the advice of the PSC. (PSC advises the GG)

The GG implements the PSC on the advise of the PM and Leader of Opposition

No one in the Judiciary nor Police Service Commission should be in the PSC

Can be removed from office via, resignation or removal due to inability to perform

Cases:

Thomas v. Attorney General of Trinidad and Tobago (1982): The Privy Council held that public officers are entitled to constitutional protections and cannot be arbitrarily dismissed.

Fraser v. Judicial and Legal Services Commission (2008): Emphasised the importance of procedural fairness in disciplinary actions.

💅🏾Chief of Justice

-Governed by the Judicature Acts in Jamaica

-Head of Supreme Court

-Chairman of Judicial Service Commission

-The head of the judiciary, responsible for its administration, acting as a spokesperson for the court, and overseeing the appointment, training, and conduct of judges.

Functions include:

Court administration

Spokesperson for the judiciary

Budget and funding

Regulation of Judicial Conduct

Presides over court proceedings

Hears cases

Role of Judge

govern how jury trial is conducted

at the end of the trial a summary to the jury must be done

choose the jurors

address exemption of jurors

disqualified: can’t serve at all from the beginning/not suitable

exception: you could be on it but something happened/suitable but can’t go

💅🏾Fiadjoe and Rule of law and cases

*Remember rule of law is why separations of powers exist, so use the same cases

Everyone is subject to law, whether citizen or sovereign

Parliament may be sovereign but still subject to the Constitution

According to Dicey; equality before the law/no man is above the law, lack of arbitrary power/due process before the law and protection of citizen’s rights

Rule of law relates to the three arms in terms of:

1. The Legislature – we all have the right to representative and responsible government.

Cases:

IRC V Lilleyman

Parliament had passed an Act/legislation which imposed a mandatory savings scheme. A group of workers took action to declare that the passing of this Act  was ultra vires forcing them to save.

Held – the power of Parliament to legislate/create laws for the peace, order and good government of the land does not authorise them to enact a law which violates a person’s constitutional rights.

Adrian Keen Case

Collymore v AG

NIDS Case

Bribery commission v Ranasighe

King v AG (unsuccessful)

Maharaj v AG

2. The Executive – the executive should be subject to independent judicial control. Thus, if the executive member or body breaches a citizen’s fundamental right guaranteed under the constitution they can be brought before the court.

Cases:

Hochoy v Nuge

In this case Hochoy was the Governor General (GG) of Trinidad and Tobago. Hochoy exceeded his powers to appoint a Commission of Enquiry to investigate certain matters. The claimants claimed that this appointment made by the GG was ultra vires. The GG appealed and claimed that because he was the Queen’s representative the court had no jurisdiction over him. The GG’s appeal was dismissed.

Sugar Producers Federation v Phillips.

Hinds V R

Kurt Mollison Case

3. The Judiciary and the Legal Profession – this requires the independence of the judiciary and an organized and autonomous legal profession.

4. The Criminal process – this involves a right to a fair trial, certainty in the criminal law and other rules of fairness including the absence of cruel punishments.

Sub rules:

Access to the law

Right of access to court

Fairness in procedures

💅🏾How to appoint  judges

In Jamaica, judges are appointed by the Governor-General, acting on the advice of the Judicial Service Commission (JSC). The JSC recommends candidates, and the Governor-General then makes the appointment.

To be eligible for appointment as a Supreme Court Judge, a candidate must be an Attorney-at-Law with at least 10 years of standing at the bar.

💅🏾How to remove judges (Jamaica)

REASONS

-retirement (65)/ resignation

-inability to discharge functions due to physical or mental reasons

-misbehaviour in terms of bringing judiciary in dispute or undermining public confidence

STEPS AS PER CONSTITUTION

The process typically begins with a formal complaint or report about the judge’s conduct or incapacity. This can be initiated by various parties, including the Judicial Service Commission (JSC), the Attorney General, or other relevant authorities

An investigation is conducted to determine the validity of the allegations

If the JSC finds sufficient grounds, a tribunal or committee is established to conduct a formal hearing. The judge is given an opportunity to respond to the allegations and present their defense

Based on the findings of the tribunal or committee, a recommendation is made to the Governor-General

The final decision to remove a judge is made by the Governor-General, often on the advice of the Prime Minister and after consultation with the Leader of the Opposition

💅🏾Substantive vs procedural ultra vires

Substantive

This is when a public authority does something which is not authorised by statute. Put simply, a public authority that has been granted powers, whether by the constitution, statute, or some other instrument, must not exceed the powers so granted.

Eg. A magistrate with a limited jurisdiction to try land disputes not exceeding $1,000 in value will be exceeding his jurisdiction if he tries a case involving land of a value of $2,500.

Cases:

Taylor v Mayor

AG v Coconut Marketing Board

a Board which had the power to “trade in coconut and coconut products” had no incidental power to “manufacture coconut products”.

Re Guyana Telephone and Telegraph Company Ltd

Improper purpose/improper procedure/irrelevant consideration cases

Procedural

That actions are invalid if they don't follow established procedures.This occurs when a public authority fails to follow procedure laid down by the law.

Cases:

Singh v The Public Service Commission

R v Devon County Council

Case with Minister stepping in before local school authority

(Any case with conditional requirement from Judicial Review under Ultra Vires grounds)

💅🏾Conventions of the constitution

Conventions are unwritten rules or practices that have developed over time and are followed by constitutional actors. They are not legally enforceable but carry significant weight in guiding political and constitutional behaviour.

Conventions vs Written Constitution

There’s a problem between the two because of:

Legal Enforceability

Clarity and Certainty

Democratic Legitimacy; Written constitutions are often created through a formal, democratic process involving the people's representatives. Conventions, however, evolve over time and may not always reflect the current democratic will of the people

There isn’t a problem between the two because of:

Complementary nature

Flexibility and adaptability; Conventions provide flexibility and adaptability to the constitutional framework. They allow the system to evolve and respond to changing political, social, and cultural contexts without the need for formal amendments. Also ensures the relevance of the written constitution

💅🏾Entrenched provisions (JA)

-Charter of rights

-Constitution as the supreme law of the land

-Establishment and Powers of Parliament

-The process of constitutional amendment itself

-Jamaica Independence Act

💅🏾Fundamental rights and cases

Chapter 3 of Constitution (JA)

Every person, regardless of race, place of origin, political opinions, colour, creed of sex, is entitled to certain fundamental rights and freedoms.

Right to life

Right to personal liberty

Right to freedom of movement

Right to freedom from inhuman treatment

Right to enjoyment of property

Right to freedom of conscience

Right to freedom of association

Right to respect for private and family life

Right to freedom from discrimination

Right to enjoyment

Right to innocence until proven guilty

Case:

Maurice v AG

A breach of the right to due process enshrined in the Charter of Fundamental Rights and Freedoms.

Pratt and Morgan v AG

Prolonged delay on death row (14+ years) amounted to inhumane treatment, thus violating fundamental rights

Lewis v AG

condemned prisoners had the right to be heard by the Privy Council before the Governor-General decided on clemency breached rules of natural justice

DPP v Mollinson

💅🏾Locus Standi

Restrictive Approach

This emphasizes the fact that where one does not have locus standi, he will not be heard by the court.  A "locus standi restrictive approach" means that courts will strictly limit who can bring a legal claim by requiring a very strong and direct personal connection to the issue at hand

Cases:

R v Mbafeno

Gordon v Minister of Finance

An MP claimed that the Appropriation Act was in violation of the Constitution. He argued that membership of Parliament and his status as a taxpayer was enough to give him relevant interest, which was rejected by the court. Being a taxpayer would not suffice. There ought to be a right, duty or a liability which could be established by a Court.

R V IRC

Liberal approach

Even though a person has no locus standi, he is allowed to speak in a court of law,   taking   into   consideration the  effects faced by that person. e.g.,   Eye witness, psychiatrist, bystander etc.

It means a relaxed interpretation of the legal requirement for someone to have a sufficient interest in a matter to bring a lawsuit, allowing a wider range of individuals or groups to initiate legal action, particularly in cases concerning public interest issues or fundamental rights

Cases:

Paynes Case

Lionel v AG

Patrice Kareem v AG

the wife of a deceased person who had been killed unlawfully by the police could complain of a breach of her fundamental rights as a result of an unlawful act or omission in respect of another.