CHAPTER 1

General Introduction

1.1 The meaning of "law" and related terms

The word "law" has more than one connotation. Section 1(1) ofthe Constitution of Jamaica states that,' "law" includes any instrumenthaving the force of law and any unwritten rule of law and "lawful" and"lawfully" shall be construed accordingly'. Outside of these two categoriesof law, there is so-called " judge-made law", commonly called the commonlaw or case law. In legislative circles, this category is often referred toas unwritten law, to distinguish it from written law – that is, Acts andregulations, the latter being also a generic term for subsidiary legislation.In this book, unless otherwise stated, the word "law" is used in referenceto Acts and regulations. These are laws made by a legislative authority,usually a Minister but can be any other authority. In that connection,the following definitions from section 3 of the Interpretation Act, 1968must also be noted:

"Broad Seal" means the Broad Seal of Jamaica;

"gazetted" means published in the Gazette;

"general notice" means any announcement not of a legislative

character made by or with the authority of the Government inthe Gazette;

"prescribed" means prescribed by the Act in which the wordoccurs or by any regulations made thereunder, and, in relation toany regulations, where no other authority is empowered in thatbehalf in the Act, means prescribed by the Governor-Generalin Council;

"proclamation" means a proclamation of the Governor-Generalunder the Broad Seal;

"regulations" includes rules, by-laws, proclamations, orders,schemes, notifications, directions, notices and forms;

"repeal" includes revoke or cancel;

"statute" includes an Act of the United Kingdom Parliament.

Acts are made by Parliament while regulations are usually madeby Ministers. The Governor-General can, as noted in the definition of"proclamation" above, issue proclamations. Also, as will be seen from thedefinition of "regulations" above, proclamations are also regulations.

1.2 The basics

1.2.1 The staffing and functions of theOffice of the Parliamentary Counsel

The Office of the Parliamentary Counsel is charged with theresponsibility of drafting legislation. It consists of a cadre of attorneys-at-law(appointed as Parliamentary Counsel) headed by the ChiefParliamentary Counsel and supported by administrative and secretarialstaff. The role and mission of the Office of the Parliamentary Counselis: (a) to facilitate the government in the task of governing by preparingdraft legislation in fulfillment of its Legislative Programme and inpursuance of policy decisions at the Ministry level; and (b) to givecounsel to Parliament in the exercise of its law-making powers byadvising on draft Bills which it seeks to enact. In carrying out thesefunctions, Parliamentary Counsel draft Bills and subsidiary legislationon instructions from client Ministries, advise Ministries on points of lawrelevant to proposed legislation, examine and comment on all CabinetSubmissions related to legislation, attend the Legislation Committee (aSub-Committee of Cabinet) and, when necessary, sittings of Parliamentor Committees thereof when Bills are being taken.

The Office of the Parliamentary Counsel is separate from the LegalReform Department. The latter conducts research in areas which mayneed reform and prepares reports. The reports are later considered byCabinet which, after approval, causes them to be transmitted to theOffice of the Parliamentary Counsel for laws to be drafted.

Persons qualified and experienced in drafting legislation are inshort supply in the Commonwealth. Whereas Jamaica has experienceddrafters, it must be recognized that in periods during which the Officeof the Parliamentary Counsel is not able to procure appropriate expertisein time, the pace at which legislation is delivered is sometimes affected.The negative effect on delivery of legislation is more pronounced whereofficials who give instructions do not play their role as they should.

1.2.2 The fair success of efforts totrain and retain drafters

The Government of Jamaica has always appreciated the need to trainlawyers to become drafters. These efforts continue but it is not alwaysbeen easy to retain such personnel in the long-term.

1.3 The purpose and structure of this book

As in many other Commonwealth jurisdictions, some public officialsoften do not appreciate the amount of background information theymust provide and the degree of conceptualization that must take placebefore Parliamentary Counsel is called upon to draft a law. Withoutproper training, their proposals tend to be scanty, on the assumptionthat the drafter will do the rest. When the drafter is confronted withthis deficiency, he is forced to research not only legal issues, which is hisjob, but also the substantive issues of the legislation, all because of theurgency of the matter or the drafter's desire not to be misunderstood.This additional work considerably slows down the drafter's progress andleaves him little time to actually draft the legislation. In order for theofficial to help the drafter in this regard, the official has to understandthe role of the drafter and how the official is supposed to facilitate thatrole. Without a cadre of officials in Ministries and departments whounderstand and can play this role effectively, it is difficult to deliverquality legislation and in a timely...