the caribbean law librarian vol. 5 no. 1 march 1988

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ISSN 0255 - 7118 The ARIBBEAN JOURNA[ Of EGAL INFORMATIO BULLETIN OF THE CARIBBEAN ASSOCIATION OF LAW LIBRARIES VOL. 5, NO.1 Editor: Jeanne Stowe Norman Manley Law School P.O. Oox 231, Kingston 7, Jamaica, W.1. MARCH 1988

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This is the official publication of the Caribbean Association of Law Librarians, showcasing developments and works done in the legal realm.

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Page 1: The Caribbean Law Librarian Vol. 5 No. 1 March 1988

ISSN 0255 - 7118

The ARIBBEAN JOURNA[ Of

EGAL INFORMATIO BULLETIN OF THE CARIBBEAN ASSOCIATION OF LAW LIBRARIES

VOL. 5, NO.1

Editor: Jeanne Stowe Norman Manley Law School P.O. Oox 231, Kingston 7, Jamaica, W.1.

MARCH 1988

Page 2: The Caribbean Law Librarian Vol. 5 No. 1 March 1988

ISSN 0255 - 7118

[ )

The CARIBBEAN JOURNAL Of

fGAL INFORMATIO A PUBLICATION OF THE CARIBBEAN ASSOCIATION OF LAW LIBRARIES

VOLUME 5. NO.1 MARCH 1988

Contents

Edi torial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rights, Retrospectivity and the Constitution - by Paula Jordon .......... ......... 4

Balancing the Equation: The History of Wage Guidelines in Jamaica - by Lilieth C. Deacon . 9

Dangerous Goods - by Hugh C. Hyman . . . . . 14

In Praise of Norma: A Profile of Norma Glaude - by Leonie M.M. Asgarali ........ 17

A Profile of Ethelwyn Celestain - by June Renie 19

COMMENTARY: The Real Estate (Dealers and Developers) Act, 1987 - by Peter Carson. 21

Caribbean Legal Miscellanea: A Bibliography . . . . . . . . 27

Page 3: The Caribbean Law Librarian Vol. 5 No. 1 March 1988

,-

"

The Caribbean Journal of Legal Information is published by the Caribbean Association of Law Libraries.

Editor Miss Jeanne Slowe

Editorial Committee Mrs. Norma Amenu-Kpodo Mrs. June Beckford-Smith Miss Lurline Cummings

Miss Carol Ford Mrs. Yvonne Lawrence Mr. C. Dennis Morrison

Typesetting UWI Publishers' Association

P.O. Box 42, Mona, Kingston 7, Jamaica

© Caribbean Association of Law Libraries 1988

Published twice per year in March and September. Subscription rates: US$15 per annum. Single issues: US$8. All correspondence concerning the publication should be addressed to:

The Editor Caribbean Journal of Legal Information

c/o Norman Manley Law School P.O. Box 231

UWI - Mona Campus Kingston 7

Jamaica

North American readers should obtain subscriptions from the sole North American agent:

Wm. W. Gaunt & Sons, Inc. Law Book Dealers & Subscription Agents

Gaunt Building 3011 Gulf Drive

Holmes Beach, FL34217-2199 U.S.A.

Page 4: The Caribbean Law Librarian Vol. 5 No. 1 March 1988

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EDITORIAL NOTE

I n this issue, we feature two members of the Association who have given service since its inauguration in 1984. Norma Glaude was elected Secretary and Ethelwyn Celestain,

Assistant Secretary. Both continue to be involved with the affairs of the Association.

Plans are underway to publish a directory of law libraries existing and operating in the region. Questionnaires have been sent out to various contact persons and the Executive are looking forward to positive responses so that the publication can fulfill the need that currently exists.

This year, the 4th Annual General Meeting and Conference will be held in Georgetown, Guyana, July 25-29. The theme for lhis year's conference will centre around the subject of standards for collection development in a law library in the Caribbean, and papers will attempt to address the question of minimum standards for university and academic law libraries, court libraries and law firm libraries.

We look forward to your attendance at this meeting and continued support of the Bulletin, through contributing an article and/or subscription.

Page 5: The Caribbean Law Librarian Vol. 5 No. 1 March 1988

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Rigllts, Rctrospectivity and tIle COllstitution

Paula Jordon Law Librarian, University of Guyana

TI1e Constitution is the highest legal authority we know. Higher even than Parliament. (Kelshall v. pitt)l

T he case of Ali et af. v. the Attomey General of Guyana2

is surrounded with issues of fundamental importance to an understanding of the relationship between the Courts, the Constitution and Parliament. This paper attempts to analyze one of the issues considered central to the out­come of the case - that of the applicability of a retrospec­tive Act of Parliament to rights protected by the Constitution.

It is contended from the outset that the presence of a written document called the Constitution is catalytic in effect in the sense that it imposes a new relationship upon Parliament and the Courts; that this relationship is an even more dynamic and complex one in a society where tension is often created from the operation of two sets of circumstances, the first of which is the body of legal tradi­tions and conventions which, though pivotal to the very act of acceptance of a constitution, is often perceived as too constraining or too restricting to a government that needs to get things done in a hurry, in the actions of whom lie the second set of circumstances. Results in the latter cir­cumstance can often only be achieved at the cost of the former and vice versa.

The tension between these two sets of circumstances, accepted legal tradition on one hand and the haste of the executive on the other, sometimes strains against the theo­retical balance between constitutional institutions to the point where that balance breaks and what remains ex­posed is a shift in the theory about the relationship be­tween such institutions which sometimes revolutionizes the formerly accepted roles, powers and/or authority of these institutions. It is submitted that the case of Ali v. the Attomey General may yet be the beginning of such a process. To show why, some attention must be paid the

;i -- Caribbean JOIiT/',71 of Le;;al Infol7nation

legal and actual context within which the issue of retro­spectivity was placed.

Craies on Statute Law offers the following definition of retrospective legislation:

A statute is to be deemed to be retrospective which takes away or impairs any vested right acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect to transactions or considerations?

The power of a parliament to legislate retrospectively is a recognized one in common law legal systems, although there are certain conventions surrounding the exercise of this power and indeed certain presumptions which work against it. There is at common law a maxim which says, "A new law ought to be prospective not retrospective in . ." 4 Its operatIon .

Where legislation does not expressly and unambig­uously state that it is intended to have retrospective effect, a Court will presume it not to have such effect.

But [it says in Broom's Legal Maxims] this rule which is one of construction only will certainly yield to the intention of the Legislative and the question (in any case on the subject) is whether that intention has been sufficiently expressed.S

It can be assumed that the justification for the above claim is well rooted in the doctrine of parliamentary sov­ereignty. It can also be assumed that, at least with respect to civil law, retrospective legislation can do the same things, cover the same ground, as prospective legislation, the difference being that in the former case, the legislation is meant to apply to a time past.

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With respect to the criminal law, there is an irrebut­table presumption in common law jurisdictions that a parliament cannot legislate to create retroactive crimes or offenses of acts which were not so when they were done. There seems to be an overriding moral issue here. "It manifestly shocks our sense of justice that an act legal at the time when it was done should be made unlawful by a new enactment,,6 (though the reverse could also be true, as the Nuremberg trials evidently showed, where acts committed and once deemed legal were by the very nature of their atrocity held by Courts of law subsequently to have been crimes of the gravest order).7

The Constitution of the Cooperative Republic of Guy­ana 1980, Art. 144(4), states,

No person shall be held to be guilty of a criminal offence on account of any act or omission that did not at the time it took place constitute such an offence.

In Bata Shoe Company v. the Attorney General of Guy­ana, 8 the retrospective criminal content of an act on fiscal tax&tion was held to be invalid.

As regards retrospectivity and the law it appears that the hands of Parliament are not similarly tied. In Phillips v. Eyre, an 1870 Irish case,9 the general point was made that

Allowing for the general inexpediency of retro­spective legislation, it cannot be pronounced natural­ly or necessarily unjust. There may be occasions and circumstances involving the safety of the state or even the conduct of individual subjects, the justice of which prospective laws made for ordinary occasions and the usual exigencies of society, for want of provision fail to meet, and in which the execution of the law as it stood at the time may involve practical inconvenience and wrong.

Especially in relation to constitutional matters, Justice Crane in the Bata Shoe Company case10 had this to say:

There is no constitutional restraint on the prin­ciple of the retrospectivity in so far as the civil aspect of that legislation is concerned, save for perhaps two de facto restraints. These are (a) wise government and (b) public opinion about which he cites one jurist as offering the following comment:

Wise government will not lightly resort to retro­spective legislation for the mere sake of expediency since it realizes or should realize that in the last analysis justice itself is the highest form of expediency. At the same time there may be occasions when public exigency compels a departure from the general prin­ciple and it is impossible therefore to say that retro­spective legislation is in all the circumstances unjustifiable.

... As for public opinion in this as in all other matters of legislation, it is impossible to generalize for all times and circumstances, but it is fairly safe to say that at least in democratic communities arbitrary leg­islation of retroactive effect is likely to offend the average sense of fairness and justice and to arouse opposition.

The above statements all acknowledge the compe­tence of Parliament to enact retrospective legislation, but where there is a constitution such as the Guyana Constitu­tion at work, it is submitted that Parliament's jurisdiction in this matter is automatically curtailed. The Guyana Constitution in more ways than one indicates those areas upon which Parliament may not encroach without indulg­ing in an unconstitutional actY

There are instances where Parliament is directly or expressly spoken to by the Constitution, as for example, the provision relevant to the Ali case, Art. 142, which, apart from those exceptions mentioned, makes it incum­bent upon Parliament to make provision for compensation for property that is compulsorily acquired. In some cases the Constitution adopts a negative approach, so for ex­ample Art. 149(1) declares that, "No law shall make any provision that is discriminating either of itself or in its effect".

An example of another type of instance in which the Constitution exerts some control over Parliament is by implication, as in the provision Art. 141 (1) which says: "No person shall be subjected to torture or to inhuman or degrading punishment or other treatment".

These provisions and all others of a similar nature to be found in the Constitution can be viewed as effectively limiting and defining the legislative capacity, whether pro­spective or retrospective, of Parliament. If by the Con­stitution Parliament cannot enact legislation that is repugnant to these provisions then it cannot enact retro­spective legislation which would not also share the same fate. It follows from this that a Court can declare retro­spective legislation to be void if it is inconsistent with any constitutional provision, whether expressed or implied. With this background in mind the circumstances that led to the Ali case can now be examined.

The initial set of circumstances were part of a 1982 local case - Guysuco v. Teemal,12 the facts of which involved the reduction of a public employee's salary which occurred in the following way. By contract between him­self and the Guyana Sugar Corporation (GUYSUCO), a nationalized industry, Teemal's salary as of December 1978 was $334.72. From 1 January 1979, Teemal's new salary became $341.22, the basis for which payment was also a contractual one. In June 1979, GUYSUCO sought to unilaterally reduce Teemal's salary on the basis of a wage agreement between the Government of Guyana and the Trades Union Congress, the central union through

Cr;ri~bf.(;'It Journal nf _~ (."iif InforrnotiOl: .- .5

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./ ,

which the interests of all workers are supposed to be ultimately represented. Teemal's salary was thus reduced to its former level of $334.72 per month, so to continue until such time as the fInancial situation in his company improved.

This led to Teemal's suing his employers for breach of contract. He also sought to recover the additional $6.50 which he should have been receiving between June and December 1979. The Court of Appeal held (confIrming the judgment below) in October 1983 that the contract between Teemal and his employers had neither been res­cinded nor repudiated. They were therefore legally bound to pay him the full salary from June 1979 up to the' date of the judgment. This decision effectively left not only the GUYSUCO Corporation but all other which had acted in like manner open to claims from all employees who had been similarly treated.

In April 1984, Parliament set out to amend, inter alia, Art. 142 - the protection from deprivation of property provision in the constitution - by instituting the Labour (Amendment) Act No.9 of 1984, which also purported to amend the principal Labour ActY The Constitution that· Parliament purported to amend was the 1980 Constitu­tion, which had repealed the Constitution existing before 1980 and which latter constitution was in fact the operative one at the time when Teemal's salary was fIrst reduced.

Following upon the constitutional guarantee of pro­tection from deprivation of property, Art. 142(3) states: "Nothing in this article shall be construed as affecting the making or operation of any law", following which a new section was to be inserted - Art. 142(3) (iia):

So far as it provides for the regulation of wages, that is, any money or other thing has or contracted to be paid, delivered or given as recompense, reward or remuneration for any work, labour or service done or to be done, whether such provision is made prospec­tively or retrospectively, including retrospectively with effect from a day earlier than the day fIxed for the coming into operation of this Constitution.

The other part of the Labour (Amendment) Act which is particularly relevant is Section 7, of which the text in its entirety reads:

7. (1) Notwithstanding anything contained in any provision of the Principal Act or in any other written law or contract or award of any arbitrator or arbitra­tion tribunal to the contrary, articles 1 to 5 (inclusive) and 7 of the agreement set out in the Schedule and entered into between the Government and the Execu­tive Members of the Trades Union Congress on 23rd August 1977 shall, subject to the other provisions of this section, be deemed to be, and always to have been, a legally enforceable contract binding on, and enforceable by or against, every public sector em-

. - Cmibbcc!l1 Jnurnal of Legal Inicrmotioll

ployee referred to in article 1 thereof (hereafter in this section referred to as "public sector employee") and his employer, and each of the aforesaid articles shall, subject to the other provisions of this section, con­tinue, and be deemed to have continued, to be so binding and enforceable, after the expiry of the year 1979 also until it is modified or replaced by any other agreement (not being an agreement entered into be­tween an individual employee and his employer), award or order made in accordance with the pro­visions of the Principal Act and binding on, and en­forceable by or against, such public sector employee and his employer.

(2) Unless otherwise directed by the President, no public sector employee shall, on and from 1st January 1979 and as long as article 1 of the aforesaid agree­ment continues to be in force in relation to him, be entitled, or be deemed ever to have been entitled, to claim, receive or recover as wages in relation to any period any amount in excess of the amount he would be entitled to receive as wages for that period if the rate of wages payable to him continued to be the same as the rate at which wages were last paid to him in 1978.

(3) Notwithstanding anything contained in any judgment, decree or order of any Court or authority" no public sector employee shall be entitled on and from 1st January 1979 to claim, receive or recover from his employer as wages any amount which he would not have been entitled to receive or recover if this section had been in operation on and from the 23rd August 1977.

Nothing contained in this section shall be deemed to confer on any public sector employee a right to claim, receive or recover, in relation to any period in any year including, and prior to, 1978, wages at rates higher than the rates at which wages were actually paid to him for that period.

(4) In this section "wages" has the same meaning as in the Principal Act

It needed no particularly remarkable insight to realize that the Labour (Amendment) Act was a move on the part of Parliament to nullify the decision of a Court. As the Honourable Chancellor Justice Massiah subsequently and succinctly pointed out,

The decision in Teemal's case, in plain, blunt language had to be got rid of. This was the true position no matter what euphemism is used, sophistry employed or linguistic artifIce resorted to in order to demonstrate the contrary.14

The Labour (Amendment) Act was an attempt to effect this by corralling all the legal hurdles into one Act so as to allow the Executive to legitimately bypass the

Page 8: The Caribbean Law Librarian Vol. 5 No. 1 March 1988

Court's decision and additionally to ex post facto substitute the 1977 wage agreement as a binding contract.

The reasoning of the Executive may logically be as­sumed to have been the following: having achieved the objective of making the GUYSUCOrreemal contract voidable, bvvirtm of the Court's decision, Teemal's wages

- 15 for 1979 had already become his property. The extant Constitution did not allow for compulsory acquisition of such property under the circumstances but Parliament could with a special majority amend the property pro­vision in the Constitution. But what was to be made of the fact that the Constitution it sought to amend had only come into existence in 1980, two years after the circum­stances governing the Teemal case, and of the fact that another constitution was then in operation - the 1966 Guyana Constitution - which did to all intents and pur­poses at the time protect Teemal's property right?

Three issues could be isolated from this dilemma: (1) That of the ability and/or authority of Parliament

to amend a repealed Constitution; (2) That of the ability and/or authority of Parliament

to amend the present Constitution to have such amend­ment take effect at a date and time before the Constitution itself was enacted; and

(3) That of the ability and/or authority of Parliament to amend the present Constitution to give itself the auth­ority to enact legislation intended to operate retrospec­tively, thereby affecting rights given under a previous Constitution.

In the Ali case, which successfully challenged the val­idity of the Labour (Amendment) Act, the first issue was raised neither in terms of Parliament's action nor as obiter dicta of the Court. In so far as Parliament's expressed intention is concerned, it appears to be both a legal and logical absurdity for Parliament to set out to amend a law which no longer exists. A comparable situation would be that of a doctor operating upon a body that did not exist. The second situation seems to offer no less an absurdity, this time to be likened to the doctor performing an opera­tion upon a patient not merely to prolong his life in the future but to add a few more years to his life before he was born. The third course was the one adopted by Parlia­ment. In this way the Constitution itself remained effec­tive only from the date it came into operation but, having amended same to expand the powers of Parliament, a new law could now operate free of the constitutional fetter, governed only by what conventions determined the cir­cumstances under which a Parliament may make retro­spective legislation. Here is where Parliament over-estimated its own powers and under-estimated those of the Court. What it did not take into account was (as the Chancellor pointed out) the maxim that "a Parliament cannot do indirectly what it cannot do directly" .IS

Hence it follows in argument that if the first route mentioned was not available to Parliament, a circuitous

attempt to effect the same result through the back door, as it were, would not have gained the measure any greater success.

Of the two judgments given in the case, Chancellor Massiah's more directly addresses the above issues. He .,ays:

I find it difficult to understand how the present Constitution could be amended to have effect in 1979 when the present Constitution was not then in exist­ence. You cannot amend a provision which does not exist. That the Constitution could be amended retro­spectively as far back as the date when it came into existence, I have no doubt. But it could go no further retrospectively.

In an indirect but very effective way, this statement shuts the door on a Parliament ever being able to interfere with rights that were protected by a n;pealed Constit ution. At the same time it may not be so preposterous to argue that constitutional rights given by a former constitution may also have been repealed along with the Constitution. Justice Harper, on the other hand, had this to say:

The 1980 Constitution under which the enactment was passed came into force in February 1980. The rights acquired by the respondents in this matter were accrued under the 1970 Constitution. In my view any rights which were acquired under that Constitution can only be retrospectively affected by any law passed during the life of that constitution. I am therefore of the opinion that Parliament' functioning under the 1980 Constitution, can only effectively pass law to have retrospective effect from the coming into force of that Constitution. It cannot disturb rights acquired under a previous Constitution [emphasis mine].

Careful analysis of the above statement merely shows Justice Harper to be declaring what Parliament cannot do. He unfortunately does not elaborate. Though his con­clusion is the same as Chancellor Massiah's, namely, that Parliament cannot legislate to retrospectively affect rights vested in the previous Constitution, it can be extrapolated from his statement that his reason for arriving at such a conclusion is based not on a logical impasse as the Chan­cellor's is, but rather upon what seems to be a theoretical obstruction.

Justice Harper appears to imply that a past Constitu­tion, as the highest authority of law for the period of its operation, contains rights which are inviolable, the in­violability of which is preserved for all time unless re­stricted or taken away at the time when the particular Constitution was in force. He is not, it must be noted, implying the existence of rights immutably fixed in a Con­stitution, for he does accommodate the notion of Parlia­ment being able to change or restrict such rights acting under the authority of the Constitution whilst it is in force.

Co:ibbean Jmm1C1 of J"ega! Information - 7

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The implication which looms large in his statement is that such rights, though not inviolable under an extant Con­stitution, become so after that Constitution has been repealed. This proposition, if indeed it is what Justice Harper intended to be understood from his statement, suffers a major drawback and that i~, since rights represent interests, it is conceivable that a past Constitution may have protected the interests of one group or class of persons which may have been inimical to those of another, in which case a Parliament may very well seek to redress this inequality by exercising its legislative authority (this after all goes to the very nature of its functions). To adopt the position in such circumstances that a Parliament "can­not disturb rights acquired under a previous Constitution" may very well be perceived as a renegation of its proper function.

It is submitted that the issues on retrospective legisla­tion which arise out of this case do so by virtue of the fact that:

(a) Account must be taken of the Constitution as a special entity with all its intrinsic characteristics and theo­retical implications; and

(b There is as yet no developed jurisprudence on how to treat a repealed Constitution. Under the British doc­trine of parliamentary sovereignty, Parliament's action, repugnant though it may have been considered, would not have posed the same jurisprudential problems. An impor­tant step in the process would have been absent and that is the necessity of having to amend a constitution. Parlia­ment would then have been free to legislate as it saw fit, constrained only by the conventional considerations dis­cussed in the introduction to this paper. The matters raised in this case go to the very root of the still evolving "doctrine" of the supremacy of the Constitution and how it affects the plenary powers of Parliament.

There is of course, an associated jurisprudential ques­tion which surfaces in Justice Harper's comments -whether there is a class of fundamental rights which are inalienable, or whether a fundamental right can be said to be anything more than an "expression of general moral and political ideals". The answer to this question will either add to or detract from the importance attributed the Constitution. The stronger the persuasion to view certain rights as inalienable, the greater will be the success of the Constitution as an institution which cannot be lightly tampered with by Parliament.

The Chancellor in Ali's case said, "Parliament is sov­ereign and may make such laws as it chooses provided it makes none that the Constitution forbids then it would be acting ultra vires." He continues, "It is therefore, to bor-

h h · ., h' . ,,17 row a prase muc 1ll use, sovereIgn WIt 1lllts powers . Given the political climate in which such ideas can

flourish, developing traditions give way to theory, thus strengthening and supporting the institution of the Con­stitution. As the oldest written constitution in operation

8 -- Car.bbean iouma! of Lepal In?)!n;ctiGli

it is evident that a similar kind of process has led to the evolution of a strong jurisprudence surrounding the Am­erican Constitution, with particular emphasis on the Bill of Rights. The legal culture for this was already germinat­ing when in an 1890 case two dissenting judges could have voiced the opinion that the individual has a constitutional right of access to the Courts for infringement of constitu­tional rights "which cannot be taken away by Congress" .18

Of rights and remedies in the American Constitution, Professor Nwabueze contends that,

The prohibitions of the Bill of Rights of the U.S. Constitution would seem strongly to imply certain remedies, an implication that derives support both from the necessary intendment of the Bill and from the nature of its prohibitions. The Bill was not in­tended as an empty declaration, a mere window­dressing, but rather as a way to bestow efficacy and reality on the rights guaranteed in it. By guaranteeing them the Constitution intended to elevate those rights above Congress and the Executive. This intention could only be realized if remedies for its enforcement also had a basis in the Constitution independent of congressional power of prescription or denial.... Conceding Congress power to prescribe and dispose of remedies is to concede away the rights themselves. For if in the exercise of such power, Congress were to deny remedy of any type whatever, the rights would have been emptied of all content, existing merely as paper rights. This would amount to be a destruction of the Constitution itself.19

Until West Indian jurisprudence can develop a sim­ilarly strong tradition, the self-contradiction in judicial review will be all too evident. For as long as an executive can easily move through a Parliament to achieve the re­quired majorities for altering or amending the Constitu­tion, the bill of rights in our Constitutions will remain at the mercy of the Executive and its "good" intentions. As fast as rights are impaired therein, the Courts shall also find themselves increasingly cornered by the legislature. Sir Shridath Ramphal, on the eve of independence, sounded a warning when he articulated the view that:

We have tended to become rather matter of fact in the West Indies about the inheritance of the com­mon law, so much so indeed that there is a present danger that we may fail to recognize the revolution in our jurisprudence which the introduction of these guarantees [of fundamental rights and freedoms] had signalled. [But this] will depend most directly on the character of the guarantees under the Constitution that is, on the degree to which they enjoy the status of a superior law against which normal legislative auth-

. '1 20 onty cannot preval .

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This statement speaks of a Constitution which has grown in stature to the extent that the concept of sov­ereignty of Parliament is diminished by it, at least with respect to alterations of the Bill of Rights. Everything will depend upon the assertiveness and innovativeness of the Judiciary, for it is within that institution that much of importance to constitutional development is born but, paradoxically enough, much can die also.

REFERENCES

1. Kelshall v. Pitt, Monroe and Bernard, ex parte Kelshall. 19 WIR, pp. 136-153, 146.

2. Ni et al. v. the Attorney General of Guyana. Guyana Civil Appeal No. 15 of 1986.

3. Craies on Statute Law. London, Sweet & Maxwell, 1971, p. 387. 4. Broom's Legal Maxims. London. Sweet & Maxwell, 1939, p. 352. 5. Ibid., p. 354. 6. Ibid., p. 357.

7. Cooper, R.W. The Nuremberg Trials. Harmondsworth. Penguin Books, 1947.

8. Bata Shoe Company Ltd. v. The Attorney General of Guyana 24 WIR, pp. 172-211.

9. Phillips v. Eyre (1869). L.R. IV Q.B.D. 10. Op. cit. 11. Alexis, Francis. Human Rights and the Courts in the Common­

weaith Caribbean. Sf Augustine, Trinidad: U.W.1.. laculty ot

Law, 1975. 12. Guyana Sugar Corporation Ltd. v. Teemal. Guyana Civil Appeal

No; 43 of 1982. 13. Guyana Labour (Amendment) Act No.9 of 1984. 14. Op. cit. 15. Lilleyman et al. v. Inland Revenue Commissioners. 13 WIR. pp.

224-241. 16. Ali et al. v. the Attorney General of Guyana. Guyana Ch~1 Appeal

No. 15 of 1986. 17. Ibid. 18. Nwabueze, Benjamin. ludicialism in Commonwealth Africa: The

Role of the Courts in Government. London. Hurst. 1977. 19. Ibid. 20. Ramphal, S. "Fundamental Rights - The Need for a ?\ew Juris­

prudence". Caribbean Quarterly, Vol. 8, No. 3, Sept. 1962. p. 142.

Balancing the Equation: The History of Wage Guidelines in Jamaica

By 1975 Jamaica was on the threshold of a new era in its political and economic development. The economic crisis of the 1970s, compounded by a variety of factors, set new challenges for the country. Innovative strategies for eco­nomic survival were required and Government soon saw fit to enter into negotiations with the International Mon­etary Fund (IMF). New equations would now be balanced and principal among them was that between economic reality and political expediency. The institution of wage guidelines, as part of Government strategy, was a major figure in this equation. A whole new ethos had appear to challenge employers, trade unions, and workers in the field of collective bargaining.

On October 8, 1975, Prime Minister Michael Manley announced the imposition of wage guidelines and sig­nalled the new course to be charted. Previously, on Aug­ust 28, 1975, he had addressed Parliament on the need for these new measures. It was apparent from the Prime

Lilieth C. Deacon Attorney-at-Law

Minister's comments in Parliament, and as indicated in Ministry Paper No. 55, that the Government was keenly aware ofthe impact the guidelines would have on workers, especially those at the bottom of the 'Wage scales. And so, the guidelines expressly set out to protect those who were most endangered. The Prime Minister had called upon trade unions and employers "to bear in mind the relative deprivation of the lower paid workers". He continued: "I am pleading with them to, wherever possible, bias the wage increases negotiated in favour of such lower paid workers.... This straight percentage increase method of pay discriminates against the poor workers and contri­butes to the gross inequality in incomes which this Gov­ernment is committed to reverse" (Ministry Paper No. 55).

The structure of the guidelines was therefore geared towards that reversal OIl the following bases:

(a) For workers earning up to $7,000, the purchas­ing power of their wages was to be "restored to

CmibiJeall .lolln:al of Legallllfonl1atiol1 - 9

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fl " v

the level ruling at the end of the contract which expired immediately, prior to the 30th June, 1973". The adjustment in their wages would be "equal to th~ difference between the actual in­creases received and the movement in the Con­sumer Price Index";

(b) Workers who earned between $7,000 and $12,000 per annum, were eligible for an in­crease "no greater than the highest individual increase earned by the group under $7,000";

( c) Workers who earned between $12,000 and $16,000 were eligible for "an increase equivalent to no greater than half that of the highest individual increase earned by the group under $7,000";

(d) The salaries and emoluments of persons earn­ing over $16,000 per annum would be frozen.

In the midst of these provisions, it was evident that Government was not indifferent to the need for a vibrant collective bargaining process. As incompatible as the guidelines are with free collective bargaining, in the true sense there was an obvious effort to ensure that these two incompatibles should co-exist for the benefit of the work­ers and in the interest of productivity. Thus, it was stated that the collective bargaining process was not to be sup­planted. There CQuld be some flexibility in the treatment of the guidelines, provided that the output in an organiza­tion could justify that route. It was put as follows:

Workers and employers will be free to bargain for additional wage increase arising from increases in productivity or profitability subject to the condition that any such wage increase will not be allowed as a ground for a price increase. (Ministry Paper No. 55 of 1975, p. 2)

Here it is evident that the desire was to maintain stability in the economy by containing the inflation which would occur as a result of price increases while sanction­ing flexibility in the wage guidelines regime where war­ranted. This consciousness of what had to be done to boost productivity and stimulate economic growth within the framework of industrial peace was crucial to Govern­ment's objectives in the Ministry Paper No.8 of 1976, which was tabled by the Han. David Coore, Deputy Prime Minister and Minister of Finance, on February 26, 1976.

The experiences gained from the "temporary guide­lines" in Ministry Paper No. 55 of 1975 led Government to declare in Ministry Paper No.8 of 1976 the "two equally important objectives which needed to be achieved":

(a) Increases in pay which will be fair and reasonable having regard to the capacity of the economy to afford such payments and the

]0 - Caribbean Journal of Legal Illfonnotion

necessity for our costs not to get out ~f line with those of our trading partners;

(b) The need for more orderly method of settling wages and salary disputes and the avoidance of disruption of the economy which has charac­terized a large numher of industrial disputes in the recent past.

The formula for pay increases as set out in the "interim guidelines" of 1975 would be retained. "Cost of living adjustment increases" would be made after it was deter­mined how much was needed to compensate the employee for any differences between the increase in the cost of living and pay increases granted calculated on the basis set out in the Temporary Guidelines and explained in Ministry Paper No. 55.

A significant caveat, however, was that the amounts of increases allowable under the guidelines were described as amounts which were not "automatically payable". Other considerations were important, as paragraph 6 of the 1976 Ministry Paper showed.

It should be stressed that the maximum increases permitted in the above (referring to the formula for adjusting wages) are not amounts which are automat­ically payable. They do not reflect the amounts which must be paid. The amounts payable within the maxi­mum will depend on the ability to pay of the employer and other factors which form the bases of negotiations between employers and employees.

In the midst of this, account was taken of the need to protect consumers. Employers and employees could es­tablish profit-sharing schemes in order to increase pro­ductivity. Payment under such schemes would be derived from realized profits after audit and were to be the subject of negotiations as to quantum.

The amount was to be paid in the form of a bonus and should not have been "regarded as a cost for purposes of the fixing of the prices of commodities or services" The cause of the consumer was to be balanced against that of the enterprise. That position was formulated thus:

In establishing profit sharing schemes, the parties wiII need to have regard to the interests of the con­sumer, the need to expand the enterprise and the need to ensure reasonable return on capital. The prices Commission in examining the pricing structure of any commodity will examine, whether any excessive profits should be reduced by reducing prices for the benefit of the consumer. (Ministry Paper No.8, p. 4)

To complete the formula, Government saw fit to give the guidelines legislative support. It was stated that Gov­ernment had "decided that there should be some legal basis for guidelines and for a procedure by which disputes can be referred to the [Industrial Disputes] Tribunal".

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The Labour Relations and Industrial Disputes Act would be amended to allow either party to a dispute arising from salary claims or other compensation to employees to re­quest the Minister of Labour to refer that dispute to the Tribunal for settlement. This was an improvement on the previous position by which both parties had to make the request of the Minister. Further legislative support was given to the guidelines as the Ministry Paper also provided that employees who were granted wage or salary increases outside the guidelines would be disqualified from having these excesses computed as allowable deductions under the Income Tax Act.

Ministry Paper No. 12 of 1976, dated 29th April was the next in line. It was to be substituted for Ministry Paper No.8 and was the product of "discussions with the Trade Unions and representatives of employers". In essence, it gave a further fillip to the collective bargaining process. Employers, employees, and their unions could engage in salary surveys and job analyses in operations similar to theirs in order to determine salary increases. The Minis­try of Labour would assist, where necessary, "to obtain information from other businesses or industries". On completion of such exercises the parties could agree on salary and wage increases which would bring about parity with workers in the operations which had formed the basis of the salary survey and analysis. In the interest of parity, the structures of the guidelines could be relaxed:

Where the parties have agreed ... the parties will be free to negotiate wage increases in excess of $10 per week to justify and achieve comparability for comparable work in the same type of business or industry and such increases will be allowable under the guidelines. (Ministry Paper No. 12 of 1976, p. 2)

The arrangements made in Ministry Paper No. 55 concerning the bands of increase, ending with no in­creases for persons earning in excess of $16,000, were maintained. It was further provided in Ministry Paper No. 12, that allowances and fringe benefits were "to be frozen at the levels existing in contracts or pay periods expiring immediately after 1st September 1975 for all groups unless it can be shown that the allowances represents a genuine reimbursement if cost incurred by the employee on behalf of the employer and the cost have increased". However, the following fringe benefits were not frozen and could be granted where not provided. Their social value must be regarded:

(a) Maternity Leave (b) Accident Insurance (c) Workmen's Compensation (d) Health Insurance & Medical Benefits (e) Pension, where benefits are payable after age 60 (f) Educational Schemes, Training Schemes and Schol-

arships

(g) Protective Clothing and Safety Equipment (h) Severance Pay (Ministry Paper No. 12, p. 4)

Besides these provisions, Ministry Paper No. 12 was similar in effect to its predecessor, Ministry Paper No. 55. In addition, however, it included a schedule of all Statu­tory Boards and Public Companies to which guidelines applied, covering the broad base of Government's invol­vement in the productive sector, from agriculture to tour­ism, to broadcasting and communications.

The next wage guidelines were those of 1977 and contained in Ministry Paper No. 38. These guidelines repeated the provisions of its predecessor with reference to such issues as the bands for wage and salary increases, ability to pay, fringe benefits, salary surveys and analyses and profit sharing schemes. Like those before it provided that non-unionized employees were subject to the guide­lines. It contained the schedule referred to above, which was part of Ministry Paper No. 12, but in some respects it was the most expansive of all. In addition to the schedule of Statutory Boards and public companies to which the guidelines applied, a second schedule listed those or­ganizations in which profit sharing was not feasible, but to which the guidelines were applicable. The rationale for determining which organizations appeared in which schedule is not clear.

Profit sharing (by the silence of the first schedule) could be allowed in Jamaica International Telecommuni­cations Limited (Jamintel) but (expressly) not in the Jam­aica Telephone Company Limited; and in Air Jamaica but not the Jamaica Railway Corporation. Probably the distribution was in what was described as companies hav­ing "a trading or commercial function" and those which did not.

A third schedule to Ministry Paper No. 38 of 1977 was headed "Wage and Salary Guidelines for the Public Sec­tor". It contained Government's pay plan for its em­ployees and began by acknowledging the Prime Minister's statement in the House on October 8, 1975 when he indicated "that Public Service or Government employees were in a special situation and must therefore be subjected to special guidelines". It went on further to note that in Ministry Paper No.8 of 1976 the Minister of Finance had made it clear that "all Central and Local Government employees as well as employees of Statutory Bodies and Companies (Excluding Statutory Bodies and Companies which have a trading or commercial function and are covered by the Private Sector pay guidelines) would have their pay determined by the Government's own pay plan and budgetary requirements".

As a concession to the trade unions which had made representations, however, in keeping with what Govern­ment now accepted "as a matter of principle", the guide­lines would also apply to the public sector "subject to such modifications or clarifications" as were deemed neces-

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sary. Government's method of regarding the wages and salaries of its employees would continue and should a grievance arise, the usual procedure would be followed.

Public Servic~ and Government Employees and their representative organizations will continue to enjoy the right of recourse under existing legislative machinery and industrial relations procedUres, to conciliation and arbitration if settlements cannot be reached through voluntary negotiations. (Ministry Paper No. 38 of 1977, p. 12)

Whatever else needed to be done, foremost among government's objections was that the elements in the equation would end up balanced. Individual expectations would have to be secondary to the wider cause. Govern­ment's position was stated thus:

The ability of the Government to meet the con­tinuing expectations of Government employees for increases in pay and benefits has to be weighed there­fore [my emphasis] against the availability of resour­ces and the many competing claims against those resources. (Ministry Paper No. 38 of 1977 Pages 13-14)

As employer, Government would not attempt to com­pare itself with the private sector where profitability and the ability to pay were factors in determining the wages or salary to be paid. Equal pay for equal work would be paramount in Government's case. In any event, as Gov­ernment itself said, it had not done too badly as

The equal pay for equal work or the "parity prin­ciple" gives a generality and a cost dimension to employees' compensation and benefits within the Government Services which cannot be ignored or treated lightly. (Ministry Paper No. 38 of 1977, p. 14)

In order to regulate further how salary and wage ad­justments were to be made in the public and quasi-public sector the stipulations of Schedule III were applied to Central and Local Government and to a number of statu­tory bodies. A pay moratorium was introduced and this formed the basis of Schedule IV.

Concomitant with the 1977 guidelines was the Income Policy of the same year which was contained in Ministry Paper No. 13. It was intended to stabilize the flow of wages and salaries and was expressive of Government's desire to stimulate economic growth.

The role of guidelines in this order was perceived as having the ability to permit the orderly adjustment of incomes "and an incomes policy", in effectively reducing the rate of inflation, was regarded as an important tool of management. The incomes policy therefore sought to stabilize the movements in profits, dividends, rent, profes­sional fees and wages and salaries. It featured a wage moratorium and was not without its social appeal. Retro-

12 - Caribbean. lournal of Legal Infonnotion

active pay could be put to a variety of purposes, including productive ones such as "for increasing employment on the building of Day Care Centres or Basic Schools."

Ministry Paper No. 22 of 1978 saw no novel features, for the most part. Contracts and pay periods were to be for at least two years, The Labour Relations and In­dustrial Disputes Act was to be amended, giving the Min­ister the power to refer disputes to the Tribunal at the instigation of "any party to an industrial dispute which involves the Pay Guidelines". For the first time, the term "National Interest" was used as a consideration for the Tribunal assessing the merits of a dispute. Pay contracts were to be submitted to the Pay Monitoring Unit of the Ministry of Labour "for registration and certification not more than fourteen (14) days after agreement is reached". The maximum pay increase in any enterprise should not have exceeded 15 per cent of the total wage bill within that enterprise in the preceding twelve-month period,

Ministry Paper No. 23 of 1979/1981 was explicit in its economic objectives. Shortly, they were to:

1. Improve the balance of payments position;

2. Achieve a 3 per cent rate of growth in real in­come;

3. The containment of price increases within a 10 per cent ceiling;

4. A fast reduction in the rate of unemployment.

In order to achieve these objectives a 10 per cent ceiling was placed on the pay bill in an organization. To boost productivity, leave was given for the introduction of "productivity incentive schemes to provide a bonus".

Such schemes were to be regulated as follows:

For these schemes the bases, method and payment dates must be submitted to the Ministry of Labour for approvaL These schemes should also be consistent with the two main objectives of increased employ­ment and keeping the increase in the rate of inflation to a maximum of 10 per cent per annum over the next two (2) years. (Ministry Paper No. 23,1979. 81, p. 2)

These schemes would replace the profit sharing de­vice,

The stipulation in the preceding guidelines of 1978 that contract periods should be for a minimum of two years was once again made. In ethos, these guidelines were consis­tent with their predecessors in adverting to the needs of the lowest paid workers, the necessity to contain price increases and in the pervasive nature of their application to all sectors of the economy. Compliance with the guide­lines was to be secured through the Labour Relations and Industrial Disputes Act by the amendment to Section 11, the effect of which was to ensure that the parties to a dispute could exhaust all avenues available to them in

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solving disputes. The national interest element was again highlighted.

The provision introduced in the 1978 guidelines for Wage Funds and settlements to be submitted to the Min­ister of Labour was retained. Wage Funds were to be submitted to the Ministry "at least fourteen (14) days before the expiry date of the contract or commencement of negotiations, whichever is earlier". Collective labour agreements concluded were to reach the Ministry within fourteen days of conclusion in accordance with the pro­visions of the Labour Relations and Industrial Disputes Act. The Ministry would then determine whether wage and salary increases accorded with the guidelines. If the result was positive, a certificate would be issued and the commissioner of Income Tax would be advised of the outcome, negative or positive.

By October 1980 a new Government had been in­stalled. What was the future of wage guidelines? They were to continue, as they were perceived to be crucial to the country's economic development.

And so it remained to be seen that political expediency had to make way for economic reality. Ministry Paper No. 6 of 1987 attest to this fact. In language, its objectives were no different from its predecessors'. It was to support "free collective bargaining, rate for the job, national interest and ability to pay". The principles of old were to form the basis of a new (?) development strategy.

The new guidelines incorporate these principles, but importantly seek to further reduce inflationary pres­sures by a lowering of the previous adjustment ceilings, and to foster external viability and growth with low inflation. (Ministry Paper No.6 of 1987, p. 1)

Old and new combine in the definition of "Pay", a definition retained since the guidelines, including wages, salaries and emoluments of any nature but excluding reim­bursements "such as travelling, provisions for uniforms, tool and equipment... and thus negotiable outside these guidelines" (p. 1).

The balancing techniques of previous guidelines were once again evident. The 10 per cent ceiling on wage bills would be retained, but with the need to create employ­ment, this 10 per cent would not include increases for additional employees. Personal advancement would be encouraged as bona fide promotions would not be in­cluded. Again, this was the convergence of old and new as this provision was first made in the guidelines. In application, these guidelines would also pervade all sec­tors of the economy. The rules for compliance which had been introduced previously would remain. The whole ethos too, would remain. The guidelines were dedared to have been "formulated in the national interest", having been, "structured to ensure the achievement of the macro economic programme targets and, in particular, the con­tainment of inflation, the expansion of export and the improvement in the balance of payments position".

In 1988, " The Year of the Worker", voices were heard in the wilderness that guidelines were incompatible with workers' interests. In February 1989 the political direc­torate may change. And what of the guidelines? They will remain.

"Plus ga change, plus c'est fa meme chose"? Indeed. In balancing the equation, pragmatism prevails. The hust­ings over, the rhetoric silenced, the business of the nation, the "national interest" is once again to the fore.

CONFERENCE ON THE GLOBAL RESPONSIB1LITY OF LAW LIBRARIANS October 18-21, 1989

Global Access to Legal Information

The Tarlton Law Library of the University of Texas School of Law is sponsoring the Conference on the Global Responsibility of Law Librarians on October 18-21, 1989, at the University of Texas School of Law. Intended for law librarians, lawyers, law publishers, and people interested in the field of legal information, the conference is the first in the United States to approach law librarianship from a global perspective.

The theme of the conference is 'Global Access to Legal Information'. Conference speakers and participants from around the world will focus on three issues of special interest to law librarians:

• Information access and information flow: problems common to government agencies, publishers, law libraries, and information users;

• Preservation and conservation: the problem of conservation of legal information resources; • Legal information and technology: developments in library automation and telecommunications and their

effect on the availability of legal information. For additional information, please contact: Professor Roy Mersky, University of Texas School of Law, 727 East

26th Street, Austin, Texas 78705, USA.

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Dangerous Goods

We hear about all sorts of dangerous things these days. The most current of these dangerous things we have been hearing about is one which more accurately falls under the heading of dangerous afflictions. Our concern is dan­gerous goods and attendant legal ramifications.

Perhaps it might be useful to begin by clarifying what we mean when we speak of dangerous goods. Basically, when we speak of dangerous goods we are referring to merchandise or other movable property which is harmful to human life, property or environment. Dangerous goods may be intrinsically so - for example, explosive, flam­mable or radioactive substances - or they may be ren­dered so by intervening factors such as interference of one sort or another.

As human beings are supposed to make rules to ad­vance and protect their interests, it is not surprising that from time immemorial there have been rules relating to the area of dangerous goods. Historically, these rules have only indirectly addressed the subject. It is only in recent times that the law, both national and international, has been attempting to come face to face with the various challenges posed by the subject.

This fact mirrors one of the ironies of technological progress. As more and more products are developed for man's comfort and progress, so too are the by-products which threaten our very existence.

Law is supposed to reflect reality and is now being hard pressed to keep abreast of the phenomenon of dangerous goods in all its wide and varied aspects. These aspects include the packaging, classification, handling, transpor­tation, storage, use, sale, information about and supply of these goods. There are also questions as to the safety, 'health and welfare of those persons who handle or con­sume these goods.

Hugh C. Hyman Attorney-at-Law,lamaica*

The Jamaican Situation

As far as Jamaica is concerned, much needs to be done by way of legislative enactments and ratifying or acceding to relevant international conventions and following inter­national guidelines if we are to come to grips with the phenomenon of dangerous goods. In this regard, I will look briefly at our local legislation as well as at some relevant international conventions and guidelines.

There is precious little reference to dangerous goods in our legislation, and what little there is has not changed much since the late nineteenth century.

The Merchant Shipping Act, 1894 The UK Merchant Shipping Act of 1894 still applies to

Jamaica and provides for restrictions on the carriage of dangerous goods. According to the provisions of this Act a shipper or consignor of dangerous goods is required to mark distinctly packages containing dangerous goods and to give written notice of the nature of the goods and the name and address of the sender. The maximum penalty for breach of this section of the Act is $200. If the shipper can show that he was merely an agent in the shipment of the goods and that he did not suspect or have any reason to suspect that the goods are dangerous then he is liable to a maximum fme of $20.

These, you will no doubt agree, are not the most frightening of penalties.

The deliberate giving of false information about goods is an offence under the Act punishable by a fine of $1,000.

The Act empowers the master or owner of a vessel to refuse to take on board any package or parcel which he suspects to contain any dangerous goods and to open such packages and ascertain their contents. Further, where any dangerous goods, or any goods which in the judgement of the master or owner of the vessel are deemed to be

* A presentation delivered at a seminar on the handling of dangerous goods at the Jamaica Conference Centre, Kingston. Jamaica. 11-15 \fay 1987, put on by the Port Authority of Jamaica and the Jamaica Maritime Training Institute in conjunction with the International Maritime Organization.

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dangerous goods, have been sent or brought aboard the vessel without being marked or notice given as required by the Act, then the master or owner of the vessel may cause those goods to be thrown overboard, together with any package or receptacle in which they were contained, without incurring any liability for doing so. Also, dan­gerous goods improperly sent are subject to forfeiture at the order of the Admiralty Court.

The Carriage of Goods Act, 1889 Our Carriage of Goods Act of 1889 incorporates the

internationally established Hague Rules (now superseded by the Hague-Visby Rules), which deal with the question of carriage of goods by sea. Pursuant to Article IV (6) of these rules, which still forms part of our law, if dangerous goods are shipped without the informed consent of the master or carrier or its agent, then they may be destroyed or rendered innocuous at any time prior to their discharge and the shipper will be liable for the costs incurred in so doing. Even where goods are shipped with the informed consent of the carrier or his agent, they may also be destroyed or rendered innocuous by the carrier without liability on the part of the carrier.

Article IV (3) of these rules, however, provides that the shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants. This appears to ex­clude the liability of the shipper where he did not know and was not negligent in not knowing that the goods were not dangerous. But this point has not been determined by our courts and perhaps could be clarified by appropriate amendment to the Carriage of Goods Act, which also needs eventually to incorporate the more modern Hague­Visby Rules.

The Harbours Act, 1874 Section 25 of the Harbours Act of 1874 makes it an

offence for the captain of a vessel or any other person to boil or heat certain combustible matters, such as pitch or tar, on board a vessel. The maximum penalty for breach of this section of the Act is $120.

Section 19 (1) of the said Act makes it an offence for a captain or any other persons to throw oil or any mixture containing oil or certain other specified substances in or within the vicinity of a harbour. The stated maximum penalty for breach of this section is $2,000. It is to be noted that this section is in apparent conflict with provisions of the Merchant Shipping Act discussed above, which was passed later, in 1894, and gives a master power to throw dangerous goods overboard without incurring liability.

For a country in which tourism is the leading foreign exchange earner and in which marine resources and en­vironment are of such immense value, this unhappy state of the law must be a matter of grave concern. Much has

been said, for instance, about the pollution of Kingston Harbour, and from the perspective of our particular focus we must recognize the critical link between the carriage and disposal of dangerous goods and the question of marine pollution. There is undoubtedly an urgent need for legislative action in this area.

For completeness, we should note that Section 23 of the Merchant Shipping (Safety Convention) Act of 1949 gives power to the relevant minister to make rules regard­ing the carriage of dangerous goods. So far, none have been made applicable to Jamaica pursuant to that section.

Other Legislation Thi~ is the extent of local legislation dealing directly

with the question of the carriage of dangerous goods by sea. Other pieces of legislation impinge on the question of dangerous goods to varying degrees. These include the Standards Act and the Public Health Act. There is legisla­tion dealing specifically with the question of storage of certain dangerous goods. Hence there is the Calcium Carbide (Sale and Storage) Act, the Food Storage and Prevention of Infestation Act, and the Petroleum and Oil Fuel (Landing and Storage) Act.

From an international law perspective, of the greatest importance have been the international conferences on the safety of life at sea and the rules, regulations and guidelines emanating from them. The first such con­ference was held in 1914, with the second and third being held in 1929 and 1948. The fourth such conference was convened in 1960 and was the first to be convened by the International Maritime Organization's (IMO) predeces­sor, the Inter-Governmental Maritime Consultative Or­ganization (IMCO), which had come into existence two years earlier, in 1958. Arising from this conference was the International Convention for the Safety of Life at Sea, 1960 (1960 SaLAS Convention), which came into force on 26 May 1965, Jamaica becoming a party to it on 22 May 1968 (Jamaica has also ratified the 1974 SaLAS Conven­tion).

For the first time, very special international attention was paid to the question of dangerous goods, with the express objective of attaining an internationally uniform system of marking, labelling and packaging of dangerous goods. Toward this end, the 1960 conference recom­mended that a unified code be prepared by the 1M CO and adopted by the government parties to the 1960 convention. This has resulted in what is now known as the International Maritime Dangerous Goods Code. This important inter­national standard code covers such matters as the clas­sification, packing, marking, and labelling of dangerous goods.

Other Conventions As I have already indicated, the carriage of dangerous

goods is closely linked to the question of marine pollution.

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Of particular importance here is the International Con­vention for the Prevention of Pollution from Ships, 1973 (1973 MARPOL Convention). This convention, inter alia, deals with the question of the actual or likely loss into the sea of a dangerous substance. Part 12 of the Third United Nations Convention on the Law of the Sea, which Jamaica has already ratified, also deals with the question of marine pollution.

The International Air Transport Association has its own Dangerous Goods Regulations, which serve to guide and inform the cargo activities of Air Jamaica and Trans­Jamaica Airlines in accordance with the UN stipulations.

Other important international conventions relating to the transportation of dangerous goods include the 1980 United Nations Convention on International Multimodal Transport of Goods, which deals, inter alia, with the trans­portation of dangerous goods by more than one mode of transportation - for instance, sea and road. There are a number of important International Labour Organization and World Health Organization conventions that deal with the question of dangerous goods from the standpoint of the safety, health and welfare of the worker in par­ticular.

T here are other IMO conventions, codes, rules and recommendations, which are constantly being updated, and the task of keeping abreast of all of these is not a minuscule one. Nevertheless, it is clear that much more can be done to bring our laws closer to the twentieth century. Our maritime and shipping laws to a very sig­nificant extent are anachronistic, dispersed and virtually hidden in archaic English enactments. There is an urgent need to completely overhaul and consolidate our mari­time and shipping laws in a coherent and compact manner and to give legal effect to some of the basic international conventions which deal with matters such as the carriage of dangerous goods by sea.

16 - Caribbean Journal of Legal Infonnatioll

The question of adopting and adhering to the Interna­tional Maritime Dangerous Goods Code should be looked at as a matter of urgency. The process is not a simple one, and there is always the need to ensure that there is ade­quate infrastructure and resources to deal with new chan­ges in the law. BUL the task is not an insurmountable one.

A Maritime Task Force was appointed in July 1982, with terms of reference inclusive of reviewing and ensur­ing an updating of our maritime and shipping legislation. Work was started in this direction and a number of pieces of proposed legislation are at the draft stage. But it is clear that these proposed pieces of legislation need to move beyond this stage into our statute books as a matter of urgent priority.

Jamaica's potential in the area of shipping and mari­time matters is enormous, but we need modern legislation. Some of our neighbouring islands in the Caribbean have already made significant strides in that direction.

As regards dealing with the question of dangerous goods per se, it is my view that a national committee should be set up, with its composition drawn from various interest groups and sectors such as persons directly involved in the maritime, shipping and transportation sector, the Bureau of Standards and the Office of Disaster Preparedness. One immediate task of such a committee would be to take steps towards ensuring that Jamaica's laws are brought up to date in this area.

On the wider question of maritime and shipping law review and updating, there is also a need for a systematic review and the necessary changes need to be effected without further delay.

Finally, at the regional level we must seek to consult our neighbours regularly, with the goal not only of sharing thoughts on maritime and shipping problems and how the law can best respond to them but also of ensuring, as far as possible and desirable, uniformity in our various mari­time and shipping laws.

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In Praise of Norma: A Profile of Norma Glaude

Have you ever found yourself saddled with the letter "V" in a game of Scrabble and unable to form a word? Well, just take a look at the person of Norma Adelle Glaude and your troubles are over.

For some reason, Norma brings to my mind the letter "V," first of all because of what I always perceive as her "vim and vigour". In mind and body, until her illness somewhat (notice I said "somewhat") hindered the latter, Norma has exhibited a verve and vitality which should be an inspiration and example to all of us, both within and without our chosen profession as librarians.

During the months of Norma's illness over 1986/87, I started thinking that, in so many instances; we overlook giving praise where it is due while the persons so deserving of it are still with us in the flesh. Thus were the germs of this article formed. It has taken me a whole year to apply myself to the task, but I thank God that Norma is still with us, and able to see it fmally in print.

Born on the island of St Vincent on 17 March 1927 to Louise and Wilberforce Prescod, Norma was the third

child of six. A sound and stable background provided her with the nucleus of virtue around which her future would develop. Her father was Headmaster of the Georgetown Government School and a Methodist lay preacher, later becoming the first ever Inspector of Schools for St Vin­cent. He was also organist for the Georgetown Methodist Church. Her mother was, for many years, the Librarian at the Georgetown Library, as well as a music teacher and organist at the Methodist Church. Norma's interest in learning, librarianship and music was therefore fostered practically from birth. Norma's mother, Louise, born in 1898, is still today obtaining honours results from the pupils she tutors in music.

From such stock springs Norma, the virtuoso. In her own right, soloist, pianist, organist, Norma served the Tranquility Methodist Church in Port of Spain, Trinidad, as assistant organist for many years.

After having her primary education at her father's school in Georgetown, Norma proceeded, at the age of eleven, to the St Vincent Girls' High School, where she took an active part in school life. Apart from pursuing her academic studies, she participated in outdoor sporting, guiding and musical activities, attaining the positions of School Prefect and House Captain. Her secondary school career culminated in 1945 with her success in the London Matriculation examinations.

Her channelling into librarianship began in 1946 with her attainment of a "B" Certificate from the Regional Library (British Council) Schoo!. She served from 1947 to 1953 as Librarian at the St Vincent Public Library, then from 1953 to 1954 as Senior Assistant Librarian at the Trinidad Public Library. In 1957, she was appointed As­sistant Librarian, Grade I, at the Central Library of Trini­dad and Tobago, where she worked in the Cataloguing, Accessions, Reference and Circulation Departments, and was, for some time, responsible for administering six branch libraries in south Trinidad. Norma assumed duty in 1960 as Librarian at the Federal Supreme Court Lib­rary. After the break-up of the West Indies Federation, she was assigned to the Law Library of the Trinidad and Tobago Court of Appeal. She started this library from scratch, and built it up over a period exceeding two dec-

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ades. She also created "mini-libraries" .lor each jUdge. Her experience has caused her to be well versed in her area, and her retirement has left the judges of tht Appeal Court minus their own personal researcher.

In 1960, Norma attained her ALA - Certificate of Associateship of the Library Association of Great Britain - and has since been ever vigilant in spotting andc.reating opportunities for keeping abreast of developments in modern libraries. In 1973, this vibrant lady of the velvet voice persuaded her government to sponsor her on a visit and familiarization tour of Canada and the United States of America. She was able to visit the law libraries of McGill University, York University and the Supreme Court (Court of Appeal Division) in Canada, and the law libraries of Columbia University and the Appellate Div­ision of the Supreme Court (Court of Appeal) in the United States.

In 1983, Norma was again sponsored on a six-month tour of attachment to law libraries in the United States. This was originally to have been a one-year scholarship programme, but was eventually approved for only six months. The venerable Norma was, however, able to pack into the six months the work of one year, visiting twenty-six American libraries. Included among these were, notably, (i) the California Western School of Law Library, where she participated in the Internship Program from 15 June to 12 August, and out of which came her publication The Current Status of. Law Libraries in Trinidad and Tobago and their Future Development; (ii) the Arthur J. Morris Law Library at the University of Virginia, to which she was attached from 1 September to 30 November (CARALL's own Larry Wenger is a professor at this university); and

(iii) the law libraries at the Library of Congress and the Supreme Court ofthe United States, from 1 to 14 Decem­ber. Among the others visited were the Boalt Hall Law Library at the University of California, the Hastings Col­lege of Law Library and Stanford University, all in Califor­nia.

During her stint at the Virginia Law Library, Norma's visit was highlighted in an article in the Virginia Law Weekly, in which mention was made of her having raised four sons while making a full career as Librarian - just another facet of a valiant person who describes herself as "very, very religious", and whose faith must have been responsible, to a great degree, for her coming through her illness victorious.

Norma is now carrying out the duties of Commissioner of Affidavits from her home at 541 Toucan Crescent, Maloney Gardens, and is also actively engaged in com­munity work. At the moment, she is organizing a library for the Maloney Gardens Community Council, of which she is a trustee and an executive member.

And so we hail Norma, the first Secretary of our Caribbean Association of Law Libraries, having served unstintingly from 1984 to 1986, and wish her all that is good. We have missed her smile, her advice and the support of her physical presence at our last two Annual General Meetings, for her humaneness has never suffered at the hands of her professionalism. We pray that she may still be able to join us at future meetings.

Leonie M.M. Asgarali Senior Library Assistant Hugh Wooding Law School

THE CARIBBEAN ASSOCIATION OF LAW LIBRARIES

4th Annual General Meeting and Conference

The Caribbean Association of Law Libraries will hold its 4th Annual General Meeting and Conference in Georgetown, Guyana, July 26-28,1988. The theme of this year's conference is 'Standards for Collection Development in a Caribbean Law Library'. The venue will be the Guyana Pegasus Hotel. Persons interested in attending should contact: Miss Paula Jordon, Law Librarian, University of Guyana, P.O. Box 101110, Turkeyen Campus, Greater Georgetown, Guyana.

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A Profile of Ethelwyn Celestain

T he name Ethelwyn Veronica Celestain has been for a long time the most formidable name in law librarianship in Trinidad and Tobago. She is known to legal prac­titioners and librarians as Ethel Celestain, and to those of us fortunate to have been touched by her life, simply and affectionately as "Mikey".

As there are many names by which she is known, so too there are many facets to the life and accomplishments of Ethel Celestain. Wife, mother, librarian, widow, and now retiree, "Mikey" truly epitomizes the persona conceptual­ized in the local parlance, "Woman is Boss".

Ethelwyn was born on the Belvidere Estate, Antigua, W.I. As a young girl attending the Antigua Girls' High School, Mikey's love for and interest in books propelled her even then into the school library, where, with only an idea of what librarianship was all about, she assumed charge of the school library.

Later that germ of an idea was given an opportunity to bear fruit with the offer of a six-month scholarship by the then Eastern Caribbean Regional Library Services. This scholarship brought her to Trinidad, the headquarters of the Eastern Caribbean Regional Library Services then under the direction of Dr Helen Gordon Stewart. It is said that Dr Stewart was a dynamic and untiring individual who

brimmed over with drive, energy and enthusiasm for lib­rarianship, and who expected no less of her trainees. It appears that these were infectious qualities possessed by Dr Stewart, for today, looking in retrospect at the profes­sionallife of Ethel Celestain, one could employ the iden­tical adjectives to describe her ambition and dedication to the profession.

The course of training offered by this Eastern Carib­bean Regional Library Services and to which our then pioneer Ethel Celestain was exposed involved both the theoretical and practical aspects of librarianship. Its aim was to give recipients a sound basis in librarians hip with a view to their return to their respective territories, where they would then establish a free public library with assis­tance from the Carnegie Foundation. Mikey reminisces that, under the direction of Dr Stewart, she learnt the rudiments of "circulation routines, the make-up of a book, book binding, library public relations", and worked on the Book Mobile as part of an attachment to the Central Library Services of Trinidad and Tobago.

The year 1948 was a significant milestone in the history of librarianship both for the Eastern Caribbean Regional Library Services and for Trinidad and Tobago. It was in that year that the British Council assumed responsibility for the Eastern Caribbean Regional Library Services and the most significant consequence was that a Library School was established in Trinidad to prepare those per­sons interested in librarianship, and especially those who had already attended the six-month course at Eastern Caribbean Regional Library Services Headquarters in Trinidad, to write the professional examinations of the Library Association of Great Britain. Completion of this course of study led to the award of Associate of the Library Association (ALA). It was in this year that Ethel Celes­tain completed the Associateship and accepted employ­ment with the Eastern CAribbean Regional Library Services.

It was a whirlwind appointment, for during this tenure Mikey reminisces that she visited St Kitts, Nevis, St Vin­cent, Montserrat, St Lucia and Antigua to assist with the establishment and organization of public libraries in these islands.

In 1955 Ethel Celestain joined the Central Library Services as a senior librarian and assumed responsibility for the Branch Library Services. This assignment took her

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I

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to La Brea in South Trinidad, where she organized a Branch Library, to a tour of duty in Tobago, where she established the Charlotteville Branch Library and as­sumed responsibility 'for the Scarborough Headquarters Library.

In 1958-59 Ethel Celestain was sent to Canada for professional attachments to the Toronto Public Library and the Osgoode Hall Great Library.

In 1960 she was transferred to the Supreme Court Library in Trinidad and Tobago, there to begin her career in law librarianship and from which she retired in 1987 after twenty-eight years of service to the judiciary. Mikey wrote of the situation in which she found the Supreme Court Library at the time of her assumption of duty. "Rows and rows and rows of dusty, disorderly volumes littered the floor ... no shelving, no furniture, ne rien. Out of this chaos the library found its genesis, a library today of which I feel proud". She states further, "This early collection comprised roughly seven thousand volumes and was entrusted to the care of Mr Duncan, a former orderly of one of the past Chief Justices". Such was the state of law librarianship in Trinidad in 1960. Her story continues, "The arrival of a female qualified librarian was a source of consternation and curiosity to a then male-dominated profession. I believe both Mr Duncan and the legal frater­nity were waiting to see if we could, or would, survive".

And survive she did. For twenty-eight years Ethel Celestain presided over the Supreme Court Library, knowing it virtually like the palm of her hand. During her tenure, the collection grew steadily from 7,000 volumes to 85,000 volumes altogether.

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The jurisdiction ofthe library was expanded to include responsibility for a Court of Appeal Library, which was started in 1962 with the era of Independence. Later, law libraries were established in San Fernando and Tobago, as subsidiaries of the Supreme Court Library. This expan­sion brought with it centralized technical services to over­see the ordering, processing and distribution of legal material throughout this law library network. In addition, each judge now has a basic collection of books in his chambers, and Court of Appeal judges are supplied with a selection of titles, all of which are supplied and control­led by the Supreme Court Librarian.

With this growth came an increase in staff and the introduction of technology. Staff increased from one qualified librarian (Mikey) to five and from one library assistant to six and from one messenger to two.

Such was the state of advancement of the Supreme Court Library upon her retirement after twenty-eight years of nurturing by the capable and efficient Ethel Cel­estain.

Altogether, Ethel Celestain has given some forty years in the service of librarianship. She now looks forward to a time of quiet and personal fulfillment, and the oppor­tunity to do all that had not been possible as a working person. We wish her peace, prosperity, good health and God's blessing.

Mrs June Renie Librarian Hugh Wooding Law School

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COMMENTARY The Real Estate (Dealers and Developers) Act, 1987

T he history behind the Real Estate (Dealers and Dev­elopers) Act, 1987, and the Real Estate (Dealers and Developers) Regulations, 1988, is in contemporary terms, a long and interesting one. As far back as 1969, a bill was drafted "to make provision for the registration of Real Estate Dealers; the licensing, regulation and control of Real Estate Brokers and Real Estate Salesmen; and the regulation of dealings in land in certain development areas".

To say that this law has come rather late is a gross understatement. It is almost a case of the proverbial horse having already gone through the gate; or is it? TheDuffus Report 1975/1976 speaks volumes on the parlous state of affairs that existed at that time with respect to real estate dealers and salesmen and land developers. I quote from the Interim Report No.2 of Sir Herbert Duffus at page 1:

As the inquiry progressed it become abundantly clear that hundreds of purchasers of land and homes in these private schemes had paid their deposits with little or no prospects of obtaining land or homes or the return of their money.

The fact that legislation had been drafted years before the Duffus Commission is indicative of the fact that the government of the day recognized the very unsatisfactory state of affairs that existed with respect to real estate dealers and developers and the public. The fact that a Commission ofInquiry had to be set up to enquire into the parlous state of affairs speaks for itself. Yet it has taken approximately twenty years for legislation to be enacted.

Very recently the Act has come under some rather scatl).ing criticisms by attorneys, real estate dealers and developers. It has been attacked as being badly drafted and "conceived by people who are unfamiliar with the

Peter Carson Attorney-at-Law, Lecturer: Norman Manley Law School

detailed workings of private sector housing develop­ments". Neither criticism is in my view valid. Certainly the existing Act is the final product of a number of earlier draft bills by competent draftsmen. The other criticism was clearly made in ignorance of the background to the Act. In fact, in 1982 an Interim Board was set up by the government to finalized proposals for legislation and this Board had representation from all the relevant bodies and associations. Furthermore, a large committee had been set up to make recommendations on the Duffus report as far back as 1976. This committee had representations from every facet of real estate and land development activity.

A third criticism, that the Act is draconian and un­necessarily bureaucratic, when considered in abstract might appear to be a fair comment. Unfortunately, the experiences of the past twenty years has made this neces­sary. Again I quote from the Interim Report No.2:

There was evidence that some realtors operate as developers, and that some developers form their own marketing companies and operate as realtors as well as developers - different legal entities - but basi­cally the same persons. One of the results stemming from this practice was that the purchaser is in a scheme often found himself dealing with several com­panies whose directors and shareholders were the same in each company but each company was never­theless a different legal entity and when things went wrong it became very difficult to isolate one company from the other and to pinpoint liability.

Having regard to all the circumstances it was the view of Sir Herbert that:

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Apart from the evidence taken so far from pur­chasers and from developers I have had the benefit of the views of several organisations and persons in­timately concerned with land housing development in Jamaica and without exception all are agreed that legislation for the strict control of developers is long overdue.

The long Title to the Act states as follows:

An act to make provision for the licensing, regula­tion and control of persons engaged as dealers or salesmen in Real Estate dealings; the regulation of dealings in land in development schemes; and for matters related thereto or connected therewith.

The act is therefore directed at essentially three cat­egories of persons - real estate dealers, real estate sales­men and land developers.

A real estate dealer is defined as:

(a) a person who, on his own account, engages in the practice of real estate business; and

(b) an individual who is

(i) a member of a partnership; or

(ii) a director or officer of corporate body, which itself engages, on its own account, in the practice of real estate business.

A real estate salesman is defined as an individual:

... who engages in the practice of real estate busi­ness in whole or in part, as an agent of, or subject to the direction, control or management of, a real estate dealer.

An examination of both definitions show that the phrase "real estate business" is at the crux of an under­standing of the activities of both persons. Section 3 of the Act is an extensive definition of real estate business which appears to me to be as all-embracing as is possible. Any person who appraises auctions, sells, exchanges, buys, leases, or rent land, or offers or attempts or agrees to do any of these things with respect to land, or advertises in writing or orally that he is in the business of doing these things, or manages land as consultant or agent and does so for valuable consideration, whether expressly or im­pliedly promised, is treated as been engaged in the prac­tice of real estate business. The only exceptions are owners or part owners, persons acting under a power of attorney, attorneys-at-law when acting in there profes­sional capacity, persons engaged in the administration of an estate, persons employed as a manager of an apartment building or complex and public officers acting in the course of their official duties.

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For the purposes of the Act land includes a building or part of a building or any goods or chattels with respect to the land or building.

A developer is defined as a person "who carries on, whether in whole or in part, the business of the develop­ment of land".

Not surprisingly, the definition of development is also very comprehensive. It means:

the carrying out of building, engineering, or other operations on, over or under land, or the making of any material change in its use or in the use of any building or other land for the purpose of disposal of such land or any part thereof in any development scheme.

The responsibility for registering these categories of persons and monitoring their activities has been given to the Real Estate Board. The powers of the Board are set out extensively in Sections 5 and 9. Section 5 provides, inter alia:

The function of the Board shall be to regulate and control the practice of real estate business - the disposition of land in development schemes and the operation of such schemes and, ...

(a) to consider and determine applications for

(i) registration of real estate dealers and real estate salesmen; and

(ii) licences and the renewal of licences to engage in the practice of real estate business as real estate dealers and real estate salesmen;

(b) to monitor the activities of developers; ...

(d) to hold and conduct such examinations of ap­plicants for registration as real estate dealers or real estate salesmen as it thinks necessary or desirable.

Section 9 provides as follows:

The Board shall have the power to enquire into or appoint any person to enquire into:-

(a) the practice of any real estate dealer or real es­tate salesman; or

(b) the activities of any development in relation to the development scheme.

With respect to the practice of real estate business, Sections 10-25 of the Act and Regulations 2-16 of the Real Estate (Dealers and Developers) Regulations contain the main provisions.

Essentially, a person who wishes to practice as a real estate dealer or salesman must first be registered and issue with a licence. Section 10 of the Act provides, inter alia:

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a person shall not engage in the practice of real estate business or in any branch of such practice

(a) in the capacity of a real estate dealer unless he is the holder of a valid licence ....

(b) in the capacity of a real estate salesman unless he is:-

(i) the holder of a valid licence ....

(ii) an employee or agent of a duly authorized real estate dealer.

In the case of a real estate dealer, Regulation 10 sets out the qualifications required in order to be qualified to be registered and therefore licenced:

10. Subject to the provisions of Section 48 of the Act, no person shall be qualified to be registered as a real estate dealer -

(a) unless he

(i) holds a degree or diploma in Land Economy and Valuation Surveying from the College of Arts, Science and Technology;

(ii) has passed the Royal Institution of Chartered Surveyors final examination in General Prac­tice, Land Agency and Agriculture or Plan­ning and Development;

(iii) holds a degree or diploma in Estate Manage­ment, Land Economy or Land Management which would have entitled the holder to be exempted by the Royal Institute of Char­tered Surveyors from the institution's final examination;

(iv) has successfully completed the Real Estate Dealers course of the College of Arts, Sci­ence and Technology;

(v) possesses such other qualification as may be approved by the Board; or

(vi) is pursuing a course of study leading to the award of a qualification referred to in any of the preceding sub-paragraphs and has for a period of one year immediately before the date of commencement of the Act been en­gaged whole time in the practice of real es­tate business as a real estate dealer; and

(b) has, except in relation to a person described in paragraph (a) (vi):-

(i) completed a period of attachment of at least one year in the office of a real estate dealer who has been approved by the Board for the purpose;

(ii) satisfied the Board in oral examination that he has gained the necessary practical ex­perience in the practice of real estate busi­ness; and

(iii) pass such written examination in local land law as the Board may require him to sit.

In addition, however, the Act imposes certain restric­tions on the character and general suitability of persons applying for registration as a dealer. Thus Section 21 provides as follows:

21 (1) A person shall not be qualified for registra­tion as a real estate dealer if:-

(a) in the case of an individual

(i) he does not possess the prescribed qualifica­tions for such registration; or (ii) he is under the age of eighteen years; or

(iii) he has had an order in bankruptcy made against him which remains undischarged; or

(b) in the case of a body corporate:-

(i) a resolution has been passed or an order made by a court of competent jurisdiction for its winding-up;

(ii) any proceeding has been taken whereby its property may be distributed among its cred­itors;

(iii) a receiver has been appointed for any of its property;

(iv) if at least one of its directors do not possess the prescribed qualifications for registra­tion; or

(v) any of its directors are otherwise disqualified for registration, as individuals under para­graph (a).

An examination of the foregoing demonstrates that fairly stringent academic requirements have been im­posed. More so, when it is remembered that prior to the Act, there were no statutory requirements laid down for a person to practice as a dealer. This is bound to create some reaction.

On the other hand of course, a real estate dealer is now legally recognized as a professional and, as is the case of all other professions recognized by law, qualifying stand­ards have to be clearly set out.

With respect to real estate salesman the requirements to qualify as such are less stringent. Nevertheless, regula­tion 11 provides as follows:

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11. Subject to the provisions of Section 48 of the Act, no person shall be qualified to be registered as a real estate salesman unless he:-. (a) has successfully completed the Real Estate

Salesmen course of the College of Arts, Science and Technology;

(b) possesses such other qualification as may be ap­proved by the Board; or

( c) is pursuing a course of study leading to the award of a qualification referred to in any of the preceding sub-paragraphs and has for a period of one year immediately before the date of commencement of the Act been engaged whole time in the practice of real estate busi­ness as a real estate salesman.

In addition, Section 21 (2) disqualifies any applicant for registration as a salesman if:-

(a) he is under the age of eighteen years;

(b) he does not possess the prescribed qualifica­tions for registration as a real estate salesman; and

( c) he has had an order in bankruptcy made against him which remains undischarged.

Having satisfied the requirements of Regulations 10 or 11, as the case may be, and not being otherwise dis­qualified under Section 21, the dealer or salesman must apply to the Board under Section 13 of the Act to be registered as such. Under Section 14, if the Board is satisfied that the applicant is worthy of registration it will approve the registration with or without conditions at­tached to such registration. In this regard the Board has been given considerable power in the determination of the suitability or otherwise of each applicant. Under Section 14 (3), registration will entitle the applicant to receive a certificate of registration.

As indicated earlier however, registration still does not qualify either dealer or salesman to practice as such. Having received a certificate of registration an applicant must apply under Section 10 of the Act for a licence. It is to be noted, however, that while registration as a dealer entitles the applicant for a licence as a dealer to be granted such a licence upon payment of the fee, the granting of a licence to salesman is conditional upon he or she being employed by a licenced dealer and of course payment of the fee. Currently the life of a licence appears to be three years by virtue of Section 20 (3).

There are two other very significant features of the legislation. Firstly, the Act requires by Section 24, that clients money received by a dealer or salesman be held on trust for the person entitled to receive it. It is now there-

24 - Caribbean foumal of Legal Infonnation

fore illegal for a dealer or salesman to use any such money except for the purposes for which it was received.

Secondly, by Section 25, the Act requires that every real estate dealer open and maintain a clients' account with an authorized [mancial institution. Any dealer who fails to do so is guilty of an offence. In addition to the provisions in the Act, Regulations 12-16 of the Regula­tions, set out detailed rules for the keeping and operating of such account. These include the right to lodge money other than clients' money to such an account; the require­ment to inform the Board by written notice, each time a withdrawal is made setting out the circumstances of the withdrawal; the keeping of detailed records and accounts of every transaction involving the clients' account, and the auditing of each client's account. The provisions of reg­ulations 12-17 are without a doubt cumbersome, but un­fortunately necessary.

With respect to developers, the Act interestingly is drafted in rather general terms. Sections 26-33 impose a number of requirements on "any person" who is a "ven­dor" of land the subject of a development scheme. The use of the universal person seems somewhat inappro­priate since Section 35 requires that every person who proposes to carry out any development of land under a development scheme shall, before commencing such scheme, apply to the Board for registration as a developer.

Nevertheless, the provisions of Section 26-35 are in keeping with the recommendation of Sir Herbert Duffus that very strict control of developers should be instituted.

Section 26 requires that before the vendor of land, the subject of a development scheme, enters into a prepay­ment contract, he must be registered as a developer, the land must be free from any mortgage or charge except with an authorized financial institution, all approvals required by any law for carrying out the development scheme have been obtained, and he has deposited with the Board cop­ies of all approvals given under the Local Improvements Act and the Town and Country Planning Act and all plans, drawings and specifications referred to in such approvals.

Section 27 provides that no person shall advertise for sale any land or building in a development scheme unless 26 has been complied with and that the advertisement states when and from whom the approvals required by Section 26 were obtained, where the relevant plans, draw­ings and specifications may be inspected, and where the land is located along with a description of its physical features. Further, regulation 18 (1) requires:

18 (1) An advertisement for sale of land in a dev­elopment scheme shall contain in addition to the information required pursuant to Section 27 (2) of the Act the following particulars

( a) the name and address of the advertiser;

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(b) the dimension and gross covered floor area of each type of building unit in the scheme;

( c) the composition of the walls, flooring and roof of each building;

(d) the sale price of each type of building unit;

(e) whether the contract includes an escalation clause;

(f) the estimated time of commencement and com­pletion of the scheme.

Section 28 requires that a signed copy of every prepay­ment contract shall be forwarded to the Board by the vendor within 14 days of its execution by the parties thereto.

Sections 29-33 are to my mind the most important provisions in the Act with respect to the protection of purchasers who make deposits on land or building the subject of a development scheme.

Section 29 requires that all money paid by a purchaser to a vendor under a prepayment contract be paid into a trust account with an authorized financial institution. Thereafter the person making such payment shall furnish to the Board a report of such payment stating the contract to which such money relates.

In addition, regulation 17 of the Regulation states:

17 (1) Subject to paragraph (2), the report re­quired pursuant to Section 29 (2) of the Act upon every payment of moneys into a trust account shall contain in addition to the particulars referred to in that provision, the following particulars:-

(a) the development scheme to which the payment contract relates;

(b) the name of the vendor under the contract;

( c) the name of the fmancial institution with which the trust account is maintained and the number of the account;

(d) the name and address of the purchaser under the contract;

(e) number of the building and, if separate, the lot or strata lot in the development scheme;

(f) the amount of money received from the pur­chaser;

(g) the purchase price of the building and, if separate, of the lot or strata lot;

(h) total payments to date into the account in respect of the development scheme.

(2) Particulars specified in sub-paragraphs (a), (b), (c), (d) and (e) of paragraph (1) need not be stated in the report if they are contained in any pre-

payment contract to which the payment relates a copy of which has been forwarded to the Board pursuant to Section 28 of the Act.

Section 30 provides that money paid into such account shall be held on trust for the person legally entitled to it, and this of course, could be the developer/vendor upon completion or recession of the contract.

Section 31, which is a substantial section, sets out in detail how money in a trust account shall be dealt with. These provisions include the procedure to adopted if money in a trust account is withdrawn from one account and deposited in another account, the right to use a dep­osit to pay stamp duty and transfer tax with respect to the relevant contract and the right to use up to 90 per cent of the deposit after proper certification by a quantity sur­veyor or architect not connected with the scheme, for payment of materials supplied and work done with respect to a building or works which is the subject of the contract. It also requires that a change be created by the owner of the land in favour of the Board guaranteeing the repay­ment of all amounts received by the vendor pursuant to the contract entered into between the parties. Such a change shall rank in priority before all other mortgages and charges on the land except unpaid rates and taxes and a mortgage or charge created in favour of an authorized financial institution to secure repayment of amounts ad­vanced by that financial institution in connection with the construction of any buildings or works on the land which shall rank equally with the charge to the Board.

Section 33 provides that where a vendor defaults in completing any pre-payment contract in accordance with its terms and condition, and the Board is satisfied that the development scheme the subject ofthe contract has failed, the Board shall collect all money held in the trust account, enforce any charge which there may be in favour of the Board and be entitled to sell the land which is the subject of the scheme. The section further provides that if the land is sold that the proceeds of sale shall be used equally to satisfy any charge in favour of the Board and any mortgage specially treated under Section 31. Thereafter, the balance if any, is to be paid to the persons entitled thereto.

Section 34 is very interesting. It requires that an auth­orized fmancial institution with which a trust account is maintained shall take reasonable steps to ensure that withdrawals are not made from a trust account except in compliance with Section 31 and the institution is required to comply with any requirement of the Board made upon it under Section 33 (a).

Further, with respect to developers and development schemes, Section 35, a substantial section, requires every person who proposes to carry out a development scheme to first apply to the Board for registration as a developer, lodge with the Board a statement with his name, his ad-

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dress the location and area of the land to be used for the development scheme, and any other information that may be prescribed; and in the case of a company, the address of its registered office and the names and addresses of all its directors. Of course, an application must be accom­panied by the fee.

Subsection (4) states the disqualifying grounds in res­pect to an applicant, which are:

(a) in the case of an individual:-

(i) has been convicted at any time of any offence involving fraud or dishonesty in relation to real estate matters; or

(ii) has had an order in bankruptcy made against him which remains undischarged; or

(b) in the case of a body corporate if:-

(i) a resolution has been passed or an order made by a court of competent jurisdiction for its winding-up;

(ii) any proceeding has been taken whereby its property may be distributed among its cred­itors;

(iii) a receiver has been appointed for any of its property; or

(iv) any of its directors is an individual referred to in paragraph (a).

Subsection (5) requires the payment of an annual fee by a developer unless the Board is satisfied that he has ceased to be such. Subsection (6) defmes a development scheme for the purposes of Section 35 as follows:

(6) This section applies to all development schemes where the number of lots into which the land is, or intended to be, subdivided exceeds five, or where the number of strata lots comprising building units constructed or intended to be constructed in the development scheme exceeds five, or where the per­son carrying out or proposing to carry out the dev­elopment scheme is also carrying out,or has within the preceding twenty-four months carried out, another development scheme of whatever size."

The Act, by way of ensuring that its provision will be adhered to, provides for the appointment of Inspectors with wide ranging powers intended to assist the Board in the monitoring of the activities of real estate dealers, salesmen and developers.

To this end, Section 38 permits an Inspector to request information of any applicant for registration as a real estate dealer, salesman or developer or any applicant for a licence or renewal of a licence as such, to supply in writing such information as relates to the applicant's prac-

26 - Caribbean Journal of Legal Infonnation

tice of real estate business or in respect of a development scheme as the Inspector may require. Further, he may direct any person by written notice, to produce any docu­ment at such time and place as he specifies in the notice.

Section 39 (1) gives an Inspector General powers:

(a) to make such examination and enquiry as may be necessary for ascertaining whether the provisions of this Act or the regulations made thereunder are being or have been complied with;

(b) to exercise such powers as may be necessary for carrying out the provisions of this Act and any regulations made thereunder; and

(c) if authorized thereto by a warrant issued by a Justice of the Peace, to enter at all reasonable times any premises or place where he has reasonable grounds for believing that such documents as are required pursuant to Section 38 (3) maybe found, and to examine or take possession of any such documents.

In concluding this examination of the Act and Regula­tions it must be pointed out that the Act adequately provides all the necessary supporting provisions to give the Board and the Inspectors the necessary power to monitor the activities of real estate dealers, salesmen and developers and the necessary power to protect the public in their dealings with such persons.

It must be noted that the Act contains a number of penalty provisions some attached to individual provisions and also general penalty provisions set out in Section 44-47. An examination of these will show that many of the penalties are quite substantial.

Further, it must be pointed out that the Act like most statutes of this kind which are regulatory in nature, contain the usual powers given to the Minister to make regulations for the better carrying out of the Act, and provides protec­tion by way of rights to appeal and inquiry by any person of any decision taken by the Board with which they are dissatisfied. To this end Section 41 provides as follows:

(41) Notwithstanding anything contained in this Act the Board shall not refuse any application under this Act unless the Board has afforded to the ap­plicant a reasonable opportunity to be heard in sup­port of his application and any person so entitled to be heard may be represented before the Board by an attorney-at-law or other representative of his choice.

And Section 22 provides that:

22 (1) Any person aggrieved by a decision of the Board to refuse an application by that person for registration under Section 14 or to impose any condi­tion or prohibition in respect of his registration under

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that section or to cancel or suspend his registration under Section 15 or to give any direction or make any order under that section, or to refuse to issue a licence to him under Section 20, may, within forty-two days after the date on which he is served with notice of the Board's decision, appeal against the decision to the Court of Appeal.

(2) The Court shall after considering the appeal give such directions in the matter as it shall think proper and the Board, or as the case may be the appellant, shall comply with such directions.

Finally, a general comment on the Regulations. These Regulations will come into effect in August 1988 and as we have seen contain a number of provisions with regard to the qualifications of real estate dealers, and salesmen as well as the rules for keeping clients' accounts. The Regulations also contain various application forms and interestingly, a pro forma charge. Clearly the Board is taking no chances.

It is reasonable to expect that as time passes and the practical workings of the new system are experienced that regulations under the Act will become the main avenue through which the Board will adjust the system to its everyday needs.

CARIBBEAN LEGAL MISCELLANEA: A Bibliography

CARIBBEAN AREA

INTEGRATION and interdependence: the development and role of subregional organiza­tions in fostering effective sovereignty in the Eastern Caribbean. In 3 Connecticut Journal of Law. Fall 1987. 205-43.

CARIBBEAN BASIN INITIATIVE

The Caribbean Basin Initiative and the IRC Section 936 investment program: a United States answer to the troubled Caribbean region. In 9 University of Pennsylvania Journal of Interna­tional Business Law. Fall 1987. 741-85.

CARIBnEAN COURT OF APPEAL

POLLARD, B.T.I. A Caribbean Court of Appeal - a reality? In The Young Attorney 1987. 16-22.

DOMESTIC RELATIONS

BENKA-COKER, Pamela. [Commentary on] Sec. 19 of the Divorce Act. In Jambar. Vol. 11, No. 1, March 1988. 3-5.

GRENADA - POLITICS AND GOVERNMENT

BARRITEAU, Eudine. The Alliance crumbles: the political situation in Grenada after the

resignations of three government ministers. In Bulletin of Eastern Caribbean Affairs. Vol. 13, No.4, Sept./Oct. 1987. 38-42.

KITCHIN, Arthur. Legal farce in Grenada. In The YoungAttomey 1987. 11-13.

GUYANA - POLITICS AND GOVERNMENT

MARS, Perry. The 1985 Guyana elections in retrospect. In Bulletin of Eastem Caribbean Af­fairs. Vol. 13, No.4, Sept./Oct. 1987. 29-37.

JUDICATURE (RESIDENT MAGISTRATES) (AMENDMENT) LAW - JAMAICA

CUNNINGHAM, Headley. A look at the Judica­ture (Resident Magistrates) (Amendment) Act, 1987. In Jambar. Vol. 11, No.1, March 1988. 5-7.

LABOUR DISPUTES - JAMAICA

GITTENS, Donald. From wrongful dismissal to un­fair dismissal: R v The Ministry of Labour, In­dustrial Disputes Tribunal, Devon Barrett et al. Ex parte West IndiesYeast Co. Ltd. In T7le Young Attorney 1987. 39-44.

Caribbean Journal of Legal Infomtation - 27

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LANDLORD AND TENANT LAW - JAMAICA

HYLTON, Lance. Recent developments in the law of landlord and tenant in Jamaica. In The Young AttorneY 1987. 45-50.

LAW AND SOCIElY

DeMERIEUX, Margaret. Public order acts as restraint on fundamental rights and freedoms in the Commonwealth Caribbean. In 16Anglo­American Law Review. Ja./Ap.1987. 58-75.

DeMERIEUX, Margaret. Setting the limits of fun­damental rights and freedoms in the Common­wealth Caribbean. In 7 Legal Studies. March 1987. 39-61.

LEGAL AID

ANDERSON, Nancy. Legal services for the poor in the Commonwealth Caribbean. In The YoungAttomey 1987. 30-32.

LEGAL PROFESSION

BENKA-COKER, Pamela. Professional miscon­duct - a recent decision. In Jam bar. Vol. 10, No.2, Dec. 1987. 8-9.

LEGAL RESEARCH

GREER, Desmond S. Rationalizing legal litera­ture: possible approaches and techniques. In The Caribbean Journal of Legal Infonnation. Vol. 4, No.2, November 1987. 7-13.

JORDON, Paula. The law librarian as catalyst in the Commonwealth Caribbean legal system. In The Caribbean Journal of Legal Infonnation. Vol. 4, No.2, November 1987. 18-23.

MORRISON, C. Dennis. The dilemma of the legal researcher/writer in the Commonwealth Carib­bean. In The Caribbean Journal of Legal Infor­mation. Vol. 4, No.2, November 1987. 14-17.

28 - Caribbean Journal of Legal Infonnation

MATRIMONIAL PROPERlY

FORTE, Margaret. Matrimonial property: the ex­isting law in Jamaica. In The Caribbean Journal of Legal Infonnation. Vol. 4, No.1, March 1987. 18-22.

MICROFORMS

WENGER, Larry B. Microforms in law libaries: some basic considerations. In The Caribbean Journal of Legal Infonnation. VOl. 4, No.1, March 1987. 11-17.

MONTSERRAT - POLITICS AND GOVERNMENT

FERGUS, Howard. Short issues long on personal abuse: the 1987 Montserrat elections. In Bul­letin of Eastern Caribbean Affairs. Vol. 13, No. 4, Sept/Oct. 1987. 43-51.

ORGANIZATION OF EASTERN CARIBBEAN STATES I

SAMUEL, Wendell. Some economic aspects of OECS political integration. In Bulletin of East­ern Caribbean Affairs. Vol. 13, No.4, Sept/Oct, 1987. 1-7.

POLICE POWERS

SCHARSCHMIDT, D.A. Abuse of powers of ar­rest by the police under the Road Traffic Act. In Jambar. Vol. 11, No.1, March 1988. 7-8.

RECEIVERS

DOWDING, Carl. Receiverships and liquidations. In The Caribbean Journal of Legal Infomtation. Vol. 4, No.1, March 1987. 2-10.

TAXATION

ASHLEY, Paul W. Taxation incentives for interna­tional business - a preliminary analysis of the Jamaican reality. In The YoungAttorney 1987. 25-28.

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PICTORIAL HIGHLIGHTS OF THE 3RD ANNUAL GENERAL MEETING OF THE CARIBBEAN ASSOCIATION OF LAW LIBRARIES, HELD IN JAMAICA, JULY 27 - 31, 1987.

THE THEME OF THE CONFERENCE WAS "TOWARDS A RATIONALIZATION OF A COMMONWEALTH CARIBBEAN LEGAL LITERATURE:'

Welcome address by the President, Mrs. Yvonne Lawrence, at the Opening Ceremony of the Conference.

Keynote address delivered by the Han. Oswald G. Harding, A ttorney-General and Minister of Justice,

Jamaica.

A section of the audience in attendance at the Opening Ceremony, Norman Manley Law School, Jamaica.

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Mrs. Ursula Khan, A ttorney-at-Law, hands over a copy of her book to Mrs. Leonie Asgarali for the Hugh Wooding Law School, Trinidad & Tobago.

The Hon. A ttorney-General's reception: From left - The Hon. Mr. Justice Henderson Downer, Mrs. John Aarons, Jamaica, Mr. Alan Moss, Barbados, Mrs. Elsie Aarons and Miss Stephanie Ferguson, Jamaica.

"The law librarian as catalyst in the Commonwealth Caribbean legal system" is the theme of the paper presented by Ms Paula Jordon, Guyana. Moderator is Mrs. Nonna Amenu-Kpodo, UWI Library, Jamaica.

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Mr. Dennis Morrison, Attorney-at-Law, discusses "The dilemma of the legal writer/researcher in the Common­wealth Caribbean". Moderator is Miss Joan Braithwaite, Faculty of Law Library, Barbados.

A light moment during the Business Meeting, shared by Miss Janice Modeste, Secretary, Mrs. Yvonne Lawrence, President and special guest, Mrs. Albertina Jefferson, Librarian, UWI, Jamaica and President of ACURlL.

Guests enjoy a quiet moment before leaving the hotel: From left - Prof Larry Wenger, U.S.A., Mr. Alan Moss, Barbados, Miss Sarah-Jane Riddell, Antigua, Sir Clifford Hammett, Barbados, Mrs. Leonie Asgarali, Trinidad & Tobago.

Caribbean Journal of Legal Information -31

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The Bar Association reception: From left ~ Mr. Leslie Fenty, Jamaica; Miss Sarah-Jane Riddell and Col. H. St. C. Whitehorne, President of the Jamaica Bar Association.

It's all over! After the week's activities, participants re/X( at the Bar.

32 ~ Caribbean Journal of Legal Infomwtion