Paradox of freedom of speech
The recent judicial decision on the constitutional matter involving Andrew Holness and two opposition senators, Arthur Williams and Dr Christopher Tufton, omitted to thoroughly examine the role of the Senate.
The media and the court largely considered only one part of the issue: whether the senators enjoyed the right to express their views without restriction from their party affiliation. The final decision of the Constitutional Court was that full freedom of speech is allowed for senators since the purpose of the Senate, as the Upper House of Parliament, is to be a review chamber of the debates that take place in the House of Representatives. Freedom of speech is, therefore, consistent with the Constitution.
This view is a correct interpretation of the role of the Senate. But it seemingly ignores the other equally important, indeed, more important role of the Senate, as a chamber structured to prevent violations of the constitutional rights and freedoms of the people as set out under Chapter III of the Constitution. So important are the provisions of Chapter III that they were the subject of very lengthy deliberations in the Constitutional Reform Commission which undertook a thorough reform of the legislation. The legislation covers the fundamental rights and freedoms that the people enjoy and which must be protected from violations.
A few of these fundamental rights and freedoms are listed here to convey an understanding of the importance of the critical constitutional provisions:
1. The right to life, liberty and security of the person, and the right not to be deprived thereof except in the execution of the sentence of a court in respect of a criminal offence of which the person has been convicted;
2. The right to freedom of thought, conscience, belief and observance of political doctrines;
3. The right to freedom of expression;
4. The right to seek, receive, distribute or disseminate information, opinions and ideas through any media;
5. The right to freedom of peaceful assembly and association;
6. The right of freedom of movement, that is to say, the right:
a) Of every citizen of Jamaica to enter Jamaica; and
b) Of every person lawfully in Jamaica to move around freely throughout Jamaica, to reside in any part of Jamaica, and to leave Jamaica;
7. The right to equality before the law;
8. The right to equitable and humane treatment by any public authority in the exercise of any function;
9. The right to freedom from discrimination on the grounds of:
a) Being male or female;
b) Race, place of origin, social class, colour, religion or political opinions;
10. The right of everyone to -
a) Protection from search of the person and property;
b) Respect for and protection of private and family life, and privacy of the home;
c) Protection of privacy of other property and of communication;
11. The right of every child:
a) To such measures of protection as are required by virtue of the status of being a minor or as part of the family, society and State;
b) Who is citizen of Jamaica, to publicly funded tuition in a public educational institution at the pre-primary and primary levels;
12. The right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage;
13. The right of every citizen of Jamaica:
a) Who is qualified to be registered as an elector for elections to the House of Representatives to be registered; and
b) Who is so registered to vote in free and fair elections.
When the constitutional reforms were being discussed, the report had to be signed by the participants. I instructed my team not to sign because the report did not cover constitutional reforms of human rights and freedoms. No discussions had taken place on Chapter III dealing with human rights. A standoff followed until Government agreed to establish a second Constitutional Reform Commission to deal only with Chapter III. It required more than 12 years to strengthen or remove the weakness of the 1962 Independence Constitution and to introduce new provisions.
It was recognised in the reform of the 1962 Constitution that these rights and freedoms were so critical to the functioning of governance in the society that special provisions had to be made to protect them. This led to an omnibus provision introduced for the Senate to be charged with the responsibility of preventing, in appropriate circumstances, the occurrence of violations of rights and freedoms that would not be allowed in a free and democratic society.
How is this awesome responsibility to be carried out successfully? The Parliamentary Constitutional Committee of 1962 that created the Independence Constitution structured the Senate to have 21 members: 13 appointed on the government side and eight on the Opposition. It was decided that for any matter introduced for the alteration of Chapter III (Charter of Fundamental Rights and Freedoms), or such other sections of the Constitution as set out in Section 49, approval of both Houses of Parliament would be required. In the case of the Senate, approval would require at least 14 of the 21 votes in that House, which would not be attainable unless at least one of the eight votes held by the Opposition was cast with the 13 votes of Government to create a two-thirds majority.
Consider the fragility of such a scheme where one vote can defeat the purpose to be upheld by the Senate, releasing untold detriment to the system of governance and welfare of the State.
It must be consistent with the Constitution that the Senate should prevent this errant vote from destroying the protective barrier it is constitutionally empowered to retain.
The Constitution is silent on how this is to be done. It was left to the Opposition to devise a scheme of control over the eight votes to ensure that they perform the role assigned to them.
There are but two ways in which this can be done. One is moral suasion to convince the holder of those precious votes of their sanctity, their utmost importance and inviolability. This approval has worked so far, but will not if some unnatural personal feeling is directed by one of the eight at the leader of the Opposition, or some such other unrelated reaction occurs. Although such feelings may have little or nothing to do with the constitutional matter at hand, it still presents a clear and present danger that could imperil the entire country.
A paradox arises here. To restrict a member of the Senate from casting a vote that could open a door to inflict grave injury on the State was rightly ruled by the Constitutional Court to be inconsistent with the Constitution, in the case of the leader of the Opposition, Andrew Holness, who used the device to enforce silence of each senator by submitting an undated letter of pre-mature resignation to him which he could use to abort a threat.
A paradox arises over this conflict of speech as to which would do the greater damage. Which would be more in keeping with the overriding responsibility of the Opposition envisaged by the Constitution to protect the bulwark from being breached, or protection of the right of the individual to speak freely? It seems that we are caught here by the anomaly of the good versus the greater good.
It is a pity that neither the Constitutional Court nor the Court of Appeal recognised the existence of this paradox, even as an obiter dictum, signalling a need for revisiting the structure of the Senate to provide an explicit resolution of this utterly dangerous paradox.