Tue | Dec 6, 2016

Can constitutional rights be easily aborted?

Published:Sunday | January 25, 2015 | 12:00 AM

During the drafting of the 1962 Constitution by the Joint Commission of the House and Senate, the areas that detained the committee in its deliberations were:

1. Chapter III: Fundamental Rights and Freedoms, and

2. Chapter VII: The Judicature

There were two aspects of chapter III that were hotly debated. There was the view that while it was good to state the fundamental rights, those rights should not be accompanied by enforcement provisions. In support of this argument, the position of David Coore, esteemed attorney and government senator, was that "to give justiciable rights to the citizen would be a derogation from sovereignty". In other words, citizens should not have rights that could be enforced by a court, believe it or not!

Neville Ashenheim, opposition senator, argued for protection of private property, particularly in respect of setting the price of acquisition of private property in instances of compulsory acquisition by government.

The arguments were settled by the grant of rights to a citizen to claim against the government where any of the provisions of Chapter III had been breached by any area of government, including the right to compensation in instances of compulsory acquisition of property.

The next issue that the committee debated heavily was the mechanism for the enforcement of rights. The court system is the natural avenue for the enforcement of rights. Accordingly, we had to make sure that the judiciary, the Supreme Court, Court of Appeal and effectiveness of the Privy Council as the final court of appeal was independent of the executive, as it was the only organ of the State that the principle of separation of powers, which is vital in a democratic country, truly existed.

Good, better, or best

So far as the Supreme Court and the Court of Appeal were concerned, the argument was never the quality of justice or the performance of the judges. It was always a question of good, better, or best. These courts were already in existence, but, we were concerned about whether or not they would continue to enjoy the same level of independence that is crucial to the dispensing of justice under the new constitutional arrangement.

We were convinced that the entrenchment mechanism, together with the establishment of the Judicial Services Commission for the appointment of judges, would give sufficient protection against any encroachment of the independence of the judiciary.

These considerations did not arise in respect of the status of the Privy Council for the reason that the question of its independence, as in the case of the Supreme Court and Court of Appeal, did not arise.

Apart from the unquestionable independence of the Privy Council, consideration must now include recognition that it was agreed by the parliamentary commissioner and the Parliament that all rights that were enforceable prior to the 1962 Constitution should remain in force. Appeal to the Privy Council is one such right that predates the 1962 Constitution.

The Privy Council also serves as the indispensable machine through which appeals to the Queen can be made as the right of a citizen when all else fails. The Royal Prerogative is a right that predates the Constitution of 1962 and which, by decision of Parliament, must be saved. If the Privy Council is to be abandoned, the right of the people to appeal to the Queen would be aborted. The only way in which this right can be aborted is by agreement of the people, that is, by referendum. It is the Privy Council that safeguards the people against a breach of the people's right through appeal directly to the Queen.

I am deeply concerned about the strength of the judicial system, not which court comes from the UK, the Caribbean, or Jamaica.

If I am in a plane high in the sky that is in trouble, I want to know that the pilot is the most experienced possible, not one who is in the process of gaining experience, or is about to start.

Lest anyone should think that I lack nationalism, let me remind them that I was the right-hand campaigner of Sir Alexander Bustamante in the referendum which decided whether Jamaica would be an independent country. For this, I was selected Parliamentary Man of the Year in 1961. My loyalty was to my country first, then and now!

n Edward Seaga is a former prime minister. He is now chancellor of UTech and a distinguished fellow at the UWI. Email feedback to columns@gleanerjm.com and odf@uwimona.edu.jm