(This is a lightly edited version of an address given by Professor Vasciannie to the 25th Anniversary Dinner of the Advocates Association of Jamaica on October 29, 2016, at the Spanish Court Hotel in New Kingston).

…I should perhaps not dwell on the functioning of the courts today. The challenges – coming primarily from longstanding underfunding of court infrastructure and from reluctance to expand the complement of judges (especially at the Court of Appeal level) – are well known.

Some of the challenges giving rise to the backlog in the courts arise from the limited number of courtrooms available for trial. Some challenges may come from what has been described as a “culture of delay”. Others arise from the interplay between prosecutors, defence counsel, judges and the State.

I offer no conclusion on where primary responsibility may lie; but the current situation is not consistent with our collective desire to have a modern, efficient justice system for all Jamaicans – did I read recently that the backlog is now approaching half-a-million cases, up from 400,000 in 2013? Given your daily familiarity with this issue – its causes and consequences – I will be guided by the research of the Advocates Association on this topic.

THE TRENCHES

So, what should I talk about? It occurs to me that I could give a short report from legal academia – for, as you know, there have been various developments in this sphere in recent years. What is the current situation concerning the study of law in Jamaica? What are some of the issues being encountered by those who wish to become members of the legal profession, and how are these issues being addressed?

There seem to me to be at least three sets of issues to be considered, namely: (a) social or contextual matters, (b) structural matters, and (c) curriculum matters. As I say, these matters touch and concern students and would-be students; but I also think they pertain to the future of the legal profession in Jamaica.

LADDER OF OPPORTUNITY

To begin with social or contextual matters, we are all aware of the past. On one view of our history, the majority of our citizens are in a constant struggle “up from slavery”. We are the products of a plantation system, and while our society has undoubtedly made progress, there are still many rivers to cross. The late Rex Nettleford and Louis Lindsay would constantly remind us that we are one or two generations removed from the canepiece.

AND WHAT’S THE SIGNIFICANCE OF THIS FOR LAWYERS?

Well, the persons who constitute the bulk of the legal profession today are the inheritors of the struggle from slavery. As such, we must be mindful of others who are coming along the path we have taken. We must aspire – without hesitation, without reservation – to offer the ladder of opportunity to others. That is the challenge for our generation of lawyers.

But, my recommendation – to aspire without hesitation and without reservation to help others – may well prompt hesitation and reservation among some lawyers. They say, for instance, that increase in the number of lawyers we have witnessed in recent years has resulted in a decline in standards.

I do not believe this to be the case. My view from the trenches, so to speak, is that the quality of the typical law graduate today at the start of her or his career matches the quality of the typical graduate from earlier times. In the nature of things, this assertion is not easily amenable to proof; but I would like to raise three considerations on this point.

STANDARDS

First: today’s graduate will have much greater access to precedents, statutes and modern facilities than was the case when we were students. As a result of the information technology revolution, young lawyers in Jamaica have greater access to authorities today than we did when we were embarking on the profession.

Some law teachers today will admit that we have to be very careful as we teach; one slip, and the student will “google” your position, and put you to the test there and then.

In the 1980s, for instance, not all students of property law would recall whether a lease of land could be frustrated, and some would need to head to the library for confirmation. Today, you simply need Internet access to provide an erudite response to this question. Our students today have that facility.

COMPETITION

Secondly: law students about to enter the profession tend to be driven by a strong sense of competition. Perhaps this is an inevitable consequence of the increase in numbers pursuing law.

For argument’s sake, a generation or two ago, if you took the LLB degree from UWI, you were almost guaranteed to get a job. Now, there is no such guarantee, and consequently, students are on the starting blocks with a view to creating a positive impression. More is at stake in the present environment, and this has helped to create a rising tide.

ANECDOTAL

Thirdly, on the question of standards, anecdotal evidence may be mentioned. Last month, I attended the launch of Dr Leon HoSang’s excellent book on campaign finance reform in Jamaica. Dr HoSang has dedicated all the proceeds of this book to the Norman Manley Law School.

And in the course of introducing the book, Dr HoSang expressly noted that the quality of the students, past and present, of the Norman Manley Law School is extraordinarily high – higher than that of counterparts from the United Kingdom.

MOOTING PRIDE

I have long held the view advanced by Dr HoSang, and the Law School had the opportunity to test it for a few years. In the three or so years from 2009 to 2012, the Law School won the World Human Rights Mooting Competition in Pretoria, South Africa (with Nancy Anderson and Dorcas White among the coaches of the teams). In one of the years, the team beat University of Sydney in the finals, and in another, they beat Yale Law School.

In that same period, Law School teams, with different members (so no person, however good, took part on more than one team) won the Brown-Mostein Interviewing Competition (with perfect scores), the Caribbean Court of Justice Moot Court Competition, and the Frankfurt Investment Law Mooting Competition.

In various years, the Norman Manley Law School team also placed in the top 16 of the Phillip Jessup International Law Moot Court Competition, taking a position among the top four from among more than 250 law schools, beating Oxford and London colleges along the way. The School also reached the top eight in the DM Harish Competition in India, and was in the top four of the Frankfurt competition in our first year of entry.

Even when the Norman Manley Law School team did not win, our contestants filled our hearts with pride. Their brilliance and commitment recommended them in the highest class.

PRACTICE

When I add to this list, all the young lawyers who are flourishing in practice throughout the various courts in Jamaica, Belize, BVI, St Kitts & Nevis and beyond; and when I add that in the three or four-year period from 2009, something in the order of 15 students of the Law School took prestigious scholarships to the UK (Rhodes, Commonwealth, Cambridge Caribbean Trust, Chevening); and when I add that all these students took their degrees from Cambridge, Oxford, LSE, Queen Mary University of London; and when I add that some students have continued postgraduate work at Harvard, New York University, University of Buffalo, North Carolina, and elsewhere, I have to say that standards are holding up quite well.

The conclusion for me, then, is that standards have been on the rise, and I thank Jacqueline Samuels-Brown, QC, for guiding the Council of Legal Education with good judgment and balance in this time of high achievement at the Law School.

Every generation tends to believe that its students were the strongest. And some will shout this out. Objectively, though, we should judge our students not by where we have reached after years of practice; rather, we should recall where we were when we started out.

But, to be sure, I have not exhausted the standards question; for, it has many dimensions, and must include the matter of whether the weakest students in one generation still meet the requirements of the bar. What I wish to say tonight, however, is that we can have excellent students coming into the profession even with an expansion in the number of lawyers.

EXPANSION

The expansion of numbers also raises the question of whether we are approaching saturation point. There is no unequivocal study on this matter, though some lawyers say that this is a real problem. If we believe in the free market – as the IMF and World Bank have encouraged us to do – we must expect that some lawyers will have to adjust their expectations and career goals.

In other fields of endeavour, Jamaicans have been known to migrate in search of career opportunities. This, I believe, is an option for lawyers as well, and I note that it has happened over the years with movement within Caricom, and to North America, in particular.

Generally, therefore, on the social point, my perspective is that we should encourage the opening up of opportunities for students through education. Persons who become lawyers will have a considerable stake in our society, and, for the most part, will work towards making a good living and to contributing to the wider society.

STRUCTURE

This takes me to the second cluster of issues – those relating to structure. By “structure” I intend to consider the question whether the arrangements for the teaching of law work to enhance the quality of our students and the objectives of our society.

Two important developments should be noted in this area. To begin with, after more than 30 years, the near monopoly in the teaching of law by the UWI, Cave Hill, was brought to an end.

Within the UWI system, it is now possible for Jamaican students to read for the LL.B. at Mona. For some lawyers, this may not be a welcome development. They remember the regional camaraderie fostered at Cave Hill central, and they reflect on the outstanding quality of the library. Some, too, reminisce fondly about Professor Carnegie, Dean Burgess, Simeon McIntosh (the “jurisprude”), Professors Kodilinye, Fiadjoe and others. This was the high tide, they say.

VIRTUES

Of course, centralisation at Cave Hill had its virtues, but there were also drawbacks. For one thing, studying at Cave Hill required the student to assume financial costs that would not arise if she or he remained at home in Jamaica. For another, having to live in Barbados generally ruled out the possibility of retaining part-time occupation while reading for the prized LLB.

In some respects, too, the Jamaican in Bim was required to finance the goal of regionalism as an individual. If the same, or a similar, level of education in law could be obtained in Jamaica, why was it necessary to go to Barbados, some students asked.

Moreover, the putative advantages at Cave Hill could possibly be reproduced at Mona and St Augustine, so that instead of having one centre of legal excellence for the Caribbean, there could be at least three – hence, the birth of Mona, with a Library that cannot match Cave Hill, but which is improving with the passage of time.

REGIONALISM

Permit me, at this juncture, to speculate on one unintended consequence of the centralisation law studies at Cave Hill for more than thirty years. At Cave Hill, the academics tended, understandably I believe, to concentrate on regional legal problems – this was in keeping with the regional model, and with UWI’s commitment to serving the entire Caricom community.

Given that time and research opportunities are limited, however, this meant that the Cave Hill lecturers could not really concentrate on Jamaican legal problems. The result – the unintended consequence – was that Jamaican legal problems were arguably not given the full attention they deserved. I have not examined this thesis in careful detail, but I think there is something in it.

Enter Howard Hamilton, Lord Gifford, Dr HoSang, Ralph Codlin and others who have taken to write from their position at the Jamaican bar. This is to be encouraged.

UTECH

The second significant structural development has been, of course, the development of the Law Faculty at the University of Technology. The UWI and the University of Technology have co-existed, and competed in some senses, for several years; so, from my personal standpoint, there is virtue in the development of the Law Faculty at UTech. The administrators at UTech identified a need, and sought to fill it. In so doing, they provided opportunities for persons to become lawyers.

Against that background, the students at UTech are perfectly entitled to feel a sense of exasperation concerning how they have been treated. In short, students at UTECH must take an Entrance Examination in order to gain a place at the Norman Manley Law School. This is in contrast to their counterparts from the UWI, Mona, UWI, Cave Hill or UWI, St Augustine.

On the face of things, the prevailing arrangement seems to discriminate against UTECH students. It also appears to discriminate against all non-UWI students.

LOW ADMISSION RATE

The First Class Honours degree holder in law from, say, London University, or the summa cum laude graduate from Harvard Law School, has to take this examination, while the student who walks over the pass degree line at UWI is automatically exempt from the Entrance Examination.

Not only that, the number of places at the Norman Manley Law School to be allocated from the Entrance Examination is decidedly low. In a recent year, following the marking of the Entrance Examination papers, seven non-UWI students were offered places from a group of more than 200 candidates. This number was increased to 17 after expressions of concern were noted.

The reasons for this low rate of success in an Entrance Examination should be examined, if not by the Bar Association, then by the Government of Jamaica.

The current arrangements for entry for non-UWI students to the Norman Manley Law School are unsatisfactory. They appear to discriminate, they are apparently irrational, and it is not a proper defense to say – year after year – that the fault lies with Caricom Heads of Government.

ALTERNATIVE

A better alternative is for all students to take a final examination for access to the Bar at the end of four or five years’ study of law. This method could be brought in on a grandfathered basis, so that current UWI students will not feel that the rules of the game have changed on them in mid-stream.

In the meantime, it is not difficult for the Norman Manley to admit increased numbers from UTech. This could be done by more efficient streaming of students and by increasing the number of tutors at the school.

COST OF EDUCATION

Another structural point bearing on the level of opportunity provided for our students concerns the cost of education. A significant number of students, in law and in other disciplines, are obliged to withdraw from classes owing to cost considerations.

There are some students who believe that they should be able to go through University without incurring student loans; those students will need to learn that their actions have consequences.

But there are others who, for one reason or another, are unable to garner student loans: there may be, for example, a change in the employment status of a parent. The system needs to become more flexible to accommodate such students.

The system should also provide loan funds to an extent that basic living expenses are covered throughout the time of studies.

GENEROSITY

I thankfully mentioned Dr HoSang and his generosity earlier. It should be noted that Dr HoSang is not alone in this regard. The Law School has benefited from the kindness of numerous lawyers, sometimes, but not always, graduates of the school.

Persons here tonight and others have been prepared to donate towards scholarships, bursaries and other grants. My hope is that the current generation of beneficiaries will remember such generosity and maintain the tradition of kindness.

But, even while we are grateful for acts of private generosity, we should work to ensure that official structures are in place to assist all students to achieve their career goals.

CURRICULUM

Finally, I turn briefly to the third cluster of issues: matters relating to the curriculum. As a result of the longstanding debate on the Caribbean Court of Justice, most of us have been exposed to the concept of “Caribbean jurisprudence.” Indeed, the preamble to the agreement establishing the Caribbean Court of Justice expressly refers to this idea.

Some critics may wonder what “Caribbean jurisprudence” actually means. At one level, it may mean “our jurisprudence” – that is, jurisprudence as determined by the Caribbean Court of Justice will be Caribbean jurisprudence. If this is all it means, then it is a largely unremarkable idea.

It may, however, mean more than that. Specifically, Caribbean jurisprudence may remind us that in fashioning solutions to our problems, we should always remain mindful of Caribbean realities. It may be a way of saying that our methods of solving problems are not necessarily the same as the methods of others. We should be free to determine our own solutions, and our own jurisprudence.

Starting with the premise that we should promote our own ways of addressing legal problems, in light of our history and cultural realities, there is a considerable role for both the advocate and the legal academic. Both should be encouraged to push forward the frontiers of the law, by advancing bold interpretations in some areas.

ETHICS

It is also important that we stress the teaching of ethics at all levels of legal training. Currently, students do ethics at the Norman Manley Law School. This is valuable. They should, however, also do a course in ethics upon entering the Faculty of Law. That way, they will have an ethical signpost at the beginning of their studies, and another at the end of the studies.

The advocate and the legal academic also have a duty to consider some of the difficult problems that confront our society. Should we not have some general perspectives on the abrogation of rights in the fight against crime?

And, should we not reach towards a philosophy of law that addresses issues of racial or religious discrimination, flogging of students, the death penalty, and other questions? If we have reservations about the free use of marijuana in the society, should we not express them?

On some of these issues, there are some advocates who are prominent, firm, and frequently sound in their analysis. Our legal academics have been less consistently forthcoming on difficult questions.

SPEAK UP!

It may be that some advocates conclude that their advocacy is best advanced in the courtroom, and not in newspaper columns. And, similarly, some legal academics may prefer to publish their views in journal articles read by specialists.

This is all well and good, but it deprives the wider society of the benefit of publicly stated views from scholars. We should speak up more often in the wider society. Otherwise, we may come to be accused of apathy: an accusation that we often place at the feet of succeeding generations.

In closing, my message: advocates and academics must work towards providing greater opportunities for others, and especially the young. And we must speak up more about public, legal issues.

Stephen Vasciannie, CD, is Professor of International Law at UWI, Mona, and former Jamaican Ambassador to the United States of America and the Organization of American States.