Changing antiquated laws

In the 1980s, Morris Cargill, the late newspaper columnist in Jamaica, tells of his attempt to pay a traffic fine issued to him for a parking violation in Downtown Kingston, the island’s capital. Not being clear what to do, he went to a police station to inquire and possibly, to pay. The police officers, he said, laughed in his face, humorously mocking him for wasting his time and theirs in trying to settle the $4 ticket.

With that story by Morris Cargill in the back of my head, I too was issued a parking violation ticket in the Parade Area of Downton Kingston not very long after. The female officer told me I could avoid being ticketed if I gave her $20 for lunch. Averse to bribes, and knowing that this was far more than a traffic ticket that I may not even have to pay, I refused. Becoming highly irate, she wrote me up, threw the ticket at me, and, with a few choice, colorful Jamaican words, walked off in a huff.

In less than a decade, the government belatedly recognized what a goldmine traffic violations are and responded with a vengeance. The fines can be steep for certain traffic offences in Jamaica today, worse if it goes to court. The pretense that traffic fines are anything but a money-making scheme was exemplified by a police corporal in Water Square, Falmouth, some years ago. “I’m tryin’ to earn the government some money,” he shouted to a friend who had hailed him from a passing car, holding aloft the book of traffic tickets in his hand.

Up to when the government realized it was missing out on millions due to antiquated traffic fines, laws concerning road traffic violations had not changed much, if any, since Jamaica’s independence in 1962. Other antiquated laws remain on the books, while others were only changed in recent years.

For instance, some laws against flogging and whipping convicted persons were repealed or amended only in March 2013. Among the offences that no longer call for flogging and whipping are obeah (voodoo), larceny and “an offence against a female or a child.”

The 1898 Obeah Laws state that anyone found guilty of the practice of obeah “shall be liable to imprisonment, with or without hard labour, for a period not exceeding 12 months, and in addition thereto, or in lieu thereof, to whipping.” The 2013 change, while not legalizing or decriminalizing obeah, amended the Obeah Act to abolish whipping.

The 2013 Act to Amend the Larceny Act abolished “whipping as a penalty for certain criminal offences; and for connected matters.”

Cat-o-nine-tails
The infamous cat-o-nine-tails used on errant soldiers, seamen and convicted civilians

The Crime (Prevention Of) Act of 1942 distinguished between flogging and whipping. “‘Flogging’ means corporal punishment administered with a cat-o’-nine-tails,” while “‘whipping’ means corporal punishment administered with a tamarind switch.”

The “cat,” a plaited rope with nine strands or thongs, was used in the British navy and army to flog errant seamen and soldiers and became standard punishment for civilians who violated criminal or even civil law in British colonies. It was applied to the back. The tamarind (tambran) switch comprised three strands from the tamarind tree, and the whipping was applied to the naked behind.

Though flogging and whipping were still on the books, it appears they had long gone out of practice as judges did not pass such sentences, which were originally reserved for male offenders. The clause referred specifically to “any male person who, on or after the date of the coming into operation of this Act, is convicted before any court.”

Among the laws getting attention now are those related to ganja (marijuana). While Rastafarians and others have long lobbied for these laws to be repealed, it is the decisions of the Barack Obama Administration in the United States that, more than anything else, spurred action on the subject. The US Federal government under Obama made a formal decision to turn a blind eye to states that legalized the use of marijuana for medical or recreational purposes. Enterprising Jamaicans are seeking to capitalize and the Jamaican government is following suit.

In March 2015, An Act to Amend the Dangerous Drugs Act was signed into law:

so as to provide for, among other things, the modification of penalties for the possession of ganja in specified small quantities and the smoking of ganja in specified circumstances, and for a scheme of licences, permits and other authorizations for medical, therapeutic or scientific purposes.

This changed a 1913 law making the cultivation, use or possession of ganja illegal. Persons caught with even a small quantity faced a lengthy prison sentence. Rastas may now utilize ganja in worship as the 2015 law allows its use for “religious purposes as a sacrament in adherence to the Rastafarian faith.” Its use is allowed for “medical or therapeutic purposes” and for “the purposes of scientific research.”

Ganja may even be grown “on lands designated by the Minister” and can be imported “from any jurisdiction where the exportation of such plant or part thereof to Jamaica is lawful under the laws of that jurisdiction.”

There are complaints that Jamaica needs to update, amend or repeal laws on obeah, rape, abortion, prostitution, rights of gays and lesbians, blasphemy, defamation, and land tenureship and ownership, among many others.

As an example, it is difficult for a man to be charged for marital rape if the following do not apply: they are separated, are undergoing divorce proceedings, a court injunction is held against him, or if he has a known sexual disease. If the law is interpreted strictly as written, he cannot be charged for rape if he forces himself on her otherwise. Leanne Levers echoes the law’s critics. “This reinforces the archaic, sexist view of women as the property of men and promulgates the acceptance of normalization of violence against women.”

Usually, government amends or changes laws only when its hands are forced, or when it sees opportunities to increase revenue. Otherwise, most laws, no matter how antiquated, outdated or irrelevant, may remain on the books. It is the responsibility of civil society to know what the laws are and to agitate for change.

Eron Henry’s article, Broadening the mind, freeing the spirit, is under consideration for the 2017 NUHA Foundation Blogging Prize. He is author of Reverend Mother, a novel.

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