Fri | Nov 17, 2017

Gordon Robinson | Constitutionally speaking

Published:Sunday | July 2, 2017 | 12:00 AM

It's dawning on some lawyers and parliamentarians that Jamaica is constructed and regulated by a written Constitution. For more than 50 years, we've pressed on regardless, assuming EVERY nook and cranny of English common law; EVERY nuance of English law; EVERY decision of EVERY English court is gospel, according to the motherland that defines, delineates and disseminates Jamaican law.

They say everything can be replaced.

They say every distance is not near.

So I remember every face

of every man who put me here.

In my time as a Supreme Court hack, I've cringed as lawyers and judges alike submit on and decide cases with exclusive reference to English authorities. For decades this hasn't resembled reality, especially since England joined the EEC in 1973 and subsequently committed to the EU/ECHR rendering English 'authorities' more and more irrelevant to Jamaica. But, after years of my spitting in the wind, I recently see light bulbs turning on all over the place.

I see my light come shinin'

from the west down to the east.

Any day now, any day now,

I shall be released.

Others have spoken in defence of the Constitution, but, like me, they were treated as boring, miserable meddlers wanting to dilute the power of Parliament which one parliamentarian insisted was sovereign. Queen Elizabeth II is sovereign of Britain; British Parliament is supreme. Jamaica is sovereign, but its Parliament is neither sovereign nor supreme. Jamaica's supreme law is a written Constitution and anything inconsistent with that document is void.

One unrepentant, persistent constitutional warrior over time has been the great Frank Phipps, QC. In July, 2015, he published a seminal article in the JAMBAR Journal in which he argued, with clarity and authority, that Parliament flouted the Constitution for years without penalty. He was able to show instances in which ordinary legislation had effectively amended the Constitution without undertaking the process set out in the Constitution for amendment. In one famous instance, Parliament's lazy ignorance of the Constitution slipped by even the Privy Council unnoticed.

 

WAYS TO AMEND SECTIONS

 

In an article titled 'Legislative authority total but not absolute', Phipps (assisted in the research by Veroneque Blake, then a law student awaiting call, now a JD practising in Philadelphia) explained:

The Constitution sets out specific ways to amend specific sections. Many require special majorities or even a referendum;

The Constitution also provided (before the new Charter of Rights) certain reasons that would enable laws to be passed in apparent breach of the Constitution.

They say every man needs protection.

They say that every man must fall.

Yet I swear I see my reflection

somewhere so high above this wall.

For example, extradition, prima facie, breached the freedom-of-movement provisions in the Constitution, but an exception was permitted where the law provided for removal of a person from Jamaica to be tried or punished outside for a criminal offence.

Phipps explained that the Privy Council (in Trevor Forbes v DPP and another [2007] UKPC 61) found The Extradition Act, which is purely procedural and assumes extradition is lawful, to be constitutional because providing the procedure by which a person may be extradited didn't contradict the Constitution. But the act doesn't state the purpose for which extradition is permitted, which would bring it in line with the constitutional exception. It would seem straightforward enough that if I give you the right to break my rules for a particular purpose, you must state that you're doing it FOR THAT PURPOSE if you're breaking my rules.

The Extradition Act fails to state any purpose consistent or otherwise with the constitutional exception, but the Privy Council assumed the purpose. That act, passed by a simple parliamentary majority without stating the purpose, has successfully snubbed its nose at the Constitution.

Now yonder stands a man in this lonely crowd;

A man who swears he's not to blame.

All day long I hear him shouting so loud

Just crying out that he was framed.

 

FREEDOM OF EXPRESSION

 

Phipps gives other examples, and I urge every young lawyer to find the JAMBAR issue and read the article twice. Phipps also cites The Interception of Communication Act 2005 blatantly in breach of the constitutional right for freedom of expression guaranteed in the Constitution. There are so many exceptions to freedom of expression that one might say the right was excepted to death, but the act, again passed by a simple majority, fails to state ONE of the many exceptions permitted as the reason for its passage. The Constitution says one thing, The Interception of Communication Act another. We're left to hug it up and guess why.

Yet, as Phipps points out:

"The Criminal Justice Amendment Act 1963, the first intrusion on a constitutional provision for rights after Independence, expressly stated 'public morality' as the purpose for in camera hearings authorised by that statute. That was an exception to the right to a public hearing provided in the Constitution. The Gun Court Act 1974 stated its purpose at Section 13: 'in the interest of public safety, public order or the protection of private lives ...' as authority for in camera hearings.

So Parliament knows how to do it. In recent times, it can't bother. Is this a sign MPs are less mature today than yesterday?

This is even more significant since the new Charter of Rights, which is drafted USA style with an unambiguous mandate that "Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes those rights", with the proviso "save only as may be demonstrably justified in a free and democratic society". The multifarious exceptions to citizens' fundamental rights included in the former Chapter 3 (Fundamental Rights and Freedoms), are gone although some exceptions to freedom of movement/liberty (during a state of emergency) and ensuring sex remains taboo (especially between consenting male adults) do remain. Consistent with our national hang-up, the only pre-existing laws 'saved' from being unconstitutional are sexual-offence laws. We're so transparently bigoted.

But this isn't about sex. The rights are all enforceable in court against the government and individuals, plus most pre-existing laws aren't 'saved', so the microscope can be whipped out to scrutinise many of our taken-for-granted laws. For example, the grossly unjust INDECOM ACT, whereby policemen are forced to give statements to their future prosecutors for crimes as serious as murder, is offensive to common sense and also unconstitutional. If Patrick Powell has the right to remain silent, why not police?

Every citizen is guaranteed freedom of expression; equality before the law; and the right against self-incrimination. Why must policemen give statements on incidents that could end up in court with them as defendants? Why shouldn't INDECOM be forced to investigate in the same way police must investigate ordinary citizens and prosecute if they can prove a case?

There are many pre-charter laws and bills currently before Parliament which must now be reviewed against these new constitutional provisions that, as Phipps argues, aren't "cut-and-paste" provisions but fundamentally different, and come with zero protection for most pre-existing laws. If those laws are contrary to the Constitution and fail to express any permitted, sustainable purpose, they must be struck down.

I see my light come shinin'

from the west down to the east.

Any day now, any day now

I shall be released.

Bob Dylan, one of USA's finest lyricists, wrote I Shall Be Released in 1967, though the first officially released track was recorded by The Band in 1968. The song was performed at The Band's 1976 farewell concert with Dylan, Joni Mitchell, Ron Wood and Ringo Starr, among others. In 1977, outstanding Jamaican group the Heptones recorded a cover ("I see Jah light come shining") and, in 1993, Judy Mowatt, one of Jamaica's most under-rated voices, released a beautiful interpretation on her album Rock Me.

This is what Dr Peter Phillips said during debate on the introduction of the new Charter of Rights:

"It sets out a new constitutional doctrine almost. Fundamentally, it places sovereignty clearly and unequivocally with the people rather than Parliament. And it effectively circumscribes, for the first time really, the exercise of the powers by Parliament, and by other agencies of the executive, in that they may pass no law and may not undertake any action that is not ... demonstrably justified in a free and democratic society."

Amen, Doc. Now, let's see you put actions where your mouth was. Will you work assiduously towards converting the rest of the Constitution to "a new constitutional doctrine" so that OUR people, with whom you say the Charter of Rights "places sovereignty clearly and unequivocally", will no longer suffer a restricted democracy imported from a country ruled by a Queen, but enjoy full democratic traditions made in Jamaica for Jamaicans?

Peace and love.

- Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com