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UTech and the question of law

BY Stephen VasciannIe

Sunday, October 01, 2017

The University of Technology, Jamaica (UTech), has offered a law degree programme (LLB) to suitably qualified students since January 2009. This programme has been available through the Faculty of Law.

The first Dean of the Faculty of Law was Kent Pantry QC, a former Director of Public Prosecutions in Jamaica. The second Dean was Oswald Harding QC, a former Attorney General of Jamaica. And the third, still in the position, is Alfred McPherson, a former Director, Land Titles/Registrar of Titles in the National Land Agency of Jamaica.

Law degree

Today, students in the Faculty of Law at UTech labour under an unfair burden. The burden arises as follows:

If you graduate from UTech in law, even if you are the top student in the class, you are required to take an entrance examination to enter the Norman Manley Law School. That, in itself, may seem fair enough — the Law School may prescribe an examination to ensure quality, and possibly, too, to regulate numbers entering the school.

A major problem arises, however, because the entrance examination system is discriminatory. It is discriminatory in the sense that students from the University of the West Indies (UWI) are not required to take the entrance examination in order to gain a place in the Norman Manley Law School. If you graduate from UWI in law, you are entitled to automatic entry into the Norman Manley Law School. As long as you have the UWI law degree, even if you are the weakest student in the class, you are exempt from the entrance examination to enter the Norman Manley Law School.

One rule for UTech, another rule for UWI.

Discrimination

Is this discriminatory situation justifiable in principle? Some persons argue that UWI's privileged position is justifiable because UWI has a longer track record and it represents the status quo. True, the Faculty of Law at the UWI, at Cave Hill, Barbados, has been in place since the early 1970s; but as a matter of history, the Faculty of Law at UTech was set up before the UWI, Mona, introduced its full three-year law programme. And yet, UWI, Mona law graduates have automatic entry, while UTech students do not.

Not only that, students from many universities which predate the UWI — even universities established in the 14th century or so — are required to do the entrance examination, while UWI people are not. So, time of establishment is not be the critical factor.

Oxford/Harvard

Others suggest that the distinction between UWI and UTech turns on quality. The argument here is that UWI has had a tradition of excellence in law which is unmatched by the relatively new UTech Faculty. To be sure, the UWI Law Faculty has indeed been a place of excellence in the Caribbean.

The question, though, is whether this justifies the elevation of UWI to a privileged position always and everywhere. The system in place assumes that no UWI student has to prove him or herself, while every UTech has to do so.

And the entrance examination system goes further. It requires every non-UWI student to take the examination. Surely, you could think, a First Class Honours graduate from Oxford may be presumed to have proven herself, and need not do the entrance examination. You would be wrong.

What about a summa cum laude graduate from Harvard Law School? Would she be eligible for automatic entry? The answer is no. The system does not turn on whether or not your law faculty has a tradition of excellence. It turns only on whether you attended UWI.

No evidence

It should also be noted that persons implying that UWI graduates are automatically better than UTech tend not to present any evidence for that perspective. Rather, the position is built on the unsubstantiated premise that UWI teaching and UWI students must be better than UTech students. It is also built on the assumption that teaching and learning standards are higher at UWI. To some extent, these are measureable considerations, but there is no evidence that the Norman Manley Law School or its governing council has sought to measure these factors in the course of retaining the discriminatory treatment against UTech.

My view on the quality debate — having had the good fortune of teaching law at both UWI and UTech — is that the automatic assumption that every UWI student is, by definition, better than every UTech student is plainly wrong. Several UTech students have attended the Norman Manley Law School, and have performed very well; and UTech has a good core of lecturers in law committed to high standards in ways that are indistinguishable from the commitment of UWI lecturers.

Too many lawyers

Some persons seem to accept the basic point that the system may be perceived as discriminatory, but seek to justify this by suggesting that “there are too many lawyers in Jamaica.” Or, they say, if UTech can produce lawyers, there will be an oversupply of lawyers. In response, I would mention three considerations.

In the first place, let us assume for the sake of argument that there are too many lawyers. Why does this putative oversupply of lawyers mean that UTech students should be restricted in their entry to law school while UWI students are not?

In other words, if we bar UTech students from access to law because there are too many lawyers, we are merely compounding the discrimination against UTech. If we wish to limit lawyers entering the profession, the fair thing to do is to have everyone — UWI and all — take an entrance examination. Then the numbers will be subject to regulation on the basis of merit and performance, not on law faculty of origin.

Missing criteria

Secondly, the assumption that there is an oversupply of lawyers needs to be considered. Persons say there are too many lawyers, but do not present a conception as to how we assess whether there are too many. What are the criteria to be used? There could be too many lawyers on Duke Street, Kingston, but not enough in other parts of Jamaica.

It is also to be remembered by there there will be employment opportunities in other parts of the Caribbean and North America for lawyers, as there are for other persons. Again, there is no comprehensive study of the question of oversupply — only assertion without evidence, not the type of methodological approach that provides clear answers.

In this regard, too, persons who refer uncritically to the oversupply of lawyers may need to come to terms with the problem of the backlog in the courts. Not to put too fine a point on the matter, the Jamaican court system has not kept pace with the demands being placed on the system. Thus, you may have to wait years to have your civil matter addressed.

This situation seems to be incompatible with the notion that there are too many lawyers; for it is the availability of lawyers, judges and infrastructure that determines the rate at which cases are resolved. It is an easy observation that an increase in the number of persons at the bar should contribute to cutting the backlog.

Many possibilities

Thirdly, law is an area of activity which opens itself to multiplicity of options. In the Caribbean, we tend to assume that lawyers all perceive themselves as young Perry Masons, Matlocks, or persons in “Suits”, who flock to the courts. But the reality is different: law provides openings in the entertainment world, sports, academia, insurance, banking, business planning, politics, media, public policy analysis and implementation, arbitration management, and in many other areas. Thus, when we talk of oversupply, we need to identify the market we have in mind.

Fourthly, persons excluded from the bar on the basis of oversupply arguments may legitimately question whether this exclusion is justifiable. We subscribe to market principles, and various international agencies, as well as local groups, take the position that competition is a good thing.

The attempt to restrict the supply of lawyers is contrary to the competitive ethos we promote in theory. According to elementary demand and supply analysis, if there are too many lawyers, the price for legal services will go down. This will lead to benefits for consumers of legal services and will promote greater efficiency among lawyers.

Opportunity

Moreover, we should not forget that in closing the door of opportunity to a bright student we will be placing a permanent barrier to the self-fulfilment and personal development of a member of society. This amounts to the society failing to meet its core objective of promoting development. “You may work towards your development, but just not in law, my good friend.”

I question, therefore, the premise that there are too many lawyers; I also argue that, even if there are too many lawyers, this is not a reason to bar UTech law graduates from entry to the Norman Manley Law School on the same terms as UWI graduates.

Straying?

Some persons who oppose granting equal access to UTech graduates also argue that UTech is straying from its core mission. The university, they say, should concentrate on training specialists in the area of technology and nothing else. My view is that this is an unduly narrow reading of UTech's mission and purpose.

To begin with, UTech has traditionally had programmes that go beyond pure technology — the institution was once the College of Arts, Science and Technology. It has never been a “technology only” institution. Also, the governing statutes of the university contemplate that UTech will work to preserve and cultivate “knowledge” and “culture”, terms which embrace more than technology simpliciter. And again, UTech has routinely dedicated about 75 per cent of its programmes to technology; it is committed to emphasizing technological education, but this does not mean it must work exclusively on technology.

Investment

Moreover, assuming arguendo that UTech should not have a law programme, this has no bearing on whether or not the Norman Manley Law School should treat UTech students fairly. The UTech administration has decided that the institution should train lawyers, and the Government of Jamaica has invested in helping to finance the education of some of these law students. These students should be allowed to achieve their objectives and the Government should realise its investment. Simply to say that UTech should stick exclusively to technology is at best an ideological imposition lacking foundation.

If, as I believe, the current system needs to be changed in order to ensure fairness and equality for UTech students, how could this be done?

The treaty

The current arrangements for the professional study of law in the Commonwealth Caribbean are governed by the Treaty establishing the Council of Legal Education. It is this treaty which grants automatic entry to UWI students, and no others. So, if we wish to change the system, we may need to amend the treaty.

The Treaty may be amended by the Caricom Heads of Government. Caricom Heads of Government have amended other regional treaties, so amendment is certainly within the realm of the possible.

The heads, however, will need leadership, and will need to be moved by the sense that the current system is unjustifiable. As to leadership, the problem for UTech is largely a Jamaican one, but it also applies to other countries because, in effect, the Council of Legal Education has a monopoly or near monopoly on the training of lawyers in the Caribbean.

The Caricom Heads may be awaiting guidance from the Council of Legal Education itself, but they are not obliged to do this. They may independently form the view that the current situation is unfair, and rectify the situation.

Inequitable treatment

In deciding whether to take leadership on this question, the Caricom authorities would be well advised to consider the following three points.

First of all, the current approach taken by the Norman Manley Law School under the Treaty may be unconstitutional. In the case of Jamaica, for instance, Section 13(2) of the Constitution guarantees certain fundamental rights, and this may be taken away only “as may be demonstrably justified in a free and democratic society.” One of these constitutionally guaranteed rights is that set out in Section 13(3)(h), namely:

“the right to equitable and humane treatment by any public authority in the exercise of any function.”

My argument would therefore be that the UTech law graduate has been denied the right to equitable treatment vis--vis the UWI law graduate. It is inequitable to require the top UTech student to take the entrance examination while the weakest UWI student is exempt from the examination.

This inequitable treatment comes either from the Norman Manley Law School as a “public authority” or from the Government of Jamaica which, as a “public authority” has sanctioned the inequitable treatment in the Treaty establishing the Council of Legal Education. The inequitable treatment would not be demonstrably justified in a free and democratic society.

Arbitrary?

A second consideration for the Caricom authorities concerns the nature of the Norman Manley Law School Entrance Examination. This examination is presented in the normal “Pass/Fail” format, with a defined “Pass” mark. But it is entirely possible — and has happened — that you could pass the examination, and yet not be accepted into the law school.

This is so because placement at the law school is determined by the classroom space available each year, and because, UWI students have automatic entry. So, for example, if UWI sends 160 students to the law school in one year, but there are places for 170 students at the law school, then only 10 students will be able to gain places on the basis of the entrance examination.

This is problematic because the candidate is required to do an examination without knowing what the point of success will be (that is, the real pass mark). This is contrary to the approach taken to examination assessment in the Caribbean educational system — an examination should have a fixed target for students. Otherwise, it is vulnerable to the criticism that it is arbitrary and unreasonable.

Poor prospects

The third consideration for the Caricom authorities is linked to the second. The student doing the entrance examination will not only be in the dark about the point of success; he or she will also have an exceedingly small prospect of success. In some years, the percentage of students getting into the Norman Manley Law School on the basis of the entrance examination has been less than 10 per cent, and possibly even less than five per cent. These are candidates from UTech, University of London, and various other places, and yet, they cannot meet the moveable target to get into the law school.

In recent years, courts have been increasingly inclined to rely on the concept of “legitimate expectation” in assessing certain administrative actions concerning the rights of individuals. It is not far-fetched to argue that a candidate from a reputable law faculty should have a legitimate expectation that he or she: (a) will know the real pass mark for an examination, and (b) will have a reasonable chance of passing the examination. An examination in which 95 per cent of the candidates fail to achieve their objective — when these are persons equipped to take the examination — is a bit of a lottery.

Changing circumstances

So, Caricom Heads of Government should give careful reconsideration to the system of entrance to the region's law schools. This issue has been subject to much debate. The system may possibly have been fair when it was established in 1971. But times and circumstances have changed, and currently, the system works sharply to the disadvantage of some students, who are justifiably bewildered about the situation.

Ultimately, what is to be done? Ideally, the Caricom Heads should require all students (including UWI students) to pursue a central examination for entry into law school. Respect should be given to the legitimate expectation of the UWI students already in the system. The entrance examination would be a reasonable proposition if every new student from a specified date has to take the examination.

Alternatively, the Government of Jamaica could press for Caricom heads to allow UTech to set up its own law school — the Jamaica Law School. This would be open to UTech law graduates and others on the basis of fair and equitable criteria.

Stephen Vasciannie, CD, a former Jamaica Ambassador to the United State