Mon | Oct 22, 2018

Gordon Robinson | Constitution 101

Published:Sunday | February 11, 2018 | 12:00 AM

Written constitutions are driven by three fundamental philosophies, namely constitutional supremacy, separation of powers, and the protection of citizens' fundamental rights and freedoms.

Written constitutions exist for the purpose of circumscribing governments' powers for the protection of citizens. This purpose is defeated if governments can willy-nilly take steps, whether in pursuance of some British notion of 'parliamentary sovereignty' or being 'democratically elected to run the country', contrary to, or exceeding, the constitution's restrictions. Government is elected by the people, for the people. It is NOT a monarch.

So citizens' protection against government comes from a written constitution whose fundamental safeguards can't be changed by government alone or trampled by government action. To ensure this, it's not only understood, but expressly provided: "... If any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void."

The new Charter of Rights states categorically that no State organ can take any action to infringe our fundamental rights.

So it matters not what you say, if what you DO infringes constitutional supremacy or in any way flies in the face of any of the constitutional fundamentals, you're acting unconstitutionally. Anything you think says the opposite is an illusion that you must dispel.

The Privy Council declared in 1975 (Hines v R or 'the Gun Court Cases'), per Diplock LJ:

"[Constitutions] differ fundamentally in their nature from ordinary legislation ... . They embody what is in substance an agreement reached between representatives of the various shades of political opinion in the state as to the structure of the organs of government through which the plenitude of the sovereign power of the state is to be exercised."

This is a solemn agreement that no election can terminate or suspend.

 

Separation of Powers

 

For those who believe everything is as it appears and context is irrelevant, this fundamental principle of written constitutions shatters that superficial belief. Nowhere in Jamaica's Constitution is this principle expressed.

In the Gun Court cases, the Privy Council declared that a review panel to set the terms of an initial sentence of 'indefinite detention' was unconstitutional because that function was assigned under the Constitution to the judiciary. The creation of the panel was an attempt by the executive to exercise the duties of the judiciary, and, therefore, unconstitutional.

Diplock LJ: "... [T]he application of the basic principle of separation of legislative, executive and judicial powers ... is implicit in a constitution on the Westminster model."

He based this on the way the Constitution was drafted with each of these vital state organs given separate chapters, separate modes of creation and operation, and separate objectives. Constitutional principles are often not obvious. They can depend on contextual and historical references.

We should've understood for 40-plus years that interference by the executive (Cabinet/

ministries/government agencies) in the affairs of the legislature (Parliament/Senate) is a fundamental breach of the Constitution, no matter what we think we see wherever. The need for this critical protection of citizens is more intense because Jamaica's reality is that the executive and legislature are for all practical purposes the same. Since Jamaica's executive and legislature are indistinguishable, independence of the judiciary becomes extra sensitive and NOTHING that appears to interfere with our last bastion of protection should be tolerated.

In affirming the primacy of this separation, Lord Diplock emphasised that the constitution established a regime that provided, in respect of the higher Jamaican judiciary, "that their independence from political pressure by Parliament or by the executive in the exercise of their judicial functions shall be assured by granting to them such degree of security of tenure in their office as is justified by the importance of the jurisdiction that they exercise".

Lord Diplock went on to find this independence was assured by the provisions enacting: "They can only be removed from office upon the advice of the Judicial Committee of Her Majesty's Privy Council in the United Kingdom given on a reference made upon the recommendation of a tribunal of inquiry consisting of persons who hold or have held high judicial office in some part of the Commonwealth."

Separation of powers isn't assured by intent or by word of mouth. It's assured by "such degree of security of tenure in their office as is justified by the importance of the jurisdiction that they exercise" and "independence from political pressure by Parliament or by the executive". Full stop!

 

Fundamental Rights

 

The fundamental 18th-century difference between the white supremacists in USA and those in Great Britain was that the American white supremacists despised foreign rule, especially where it touched their pockets. So when Britain imposed adjusted import duties by the Tea Act 1773, Americans, whose national philosophy has always been based on worship of the Almighty Dollar, blew several gaskets and went to war for Independence. Had America lost, several now revered as 'founding fathers' would've been hanged for treason. Nothing like a little morbid motivation to concentrate the mind!

It's not widely known that when USA won independence, American white supremacists (oops, sorry, 'founding fathers') enacted a written constitution that didn't include a bill of rights. Lip service regarding "all MEN are created equal" was just political bullcrap. On the face of it AND in real life, it excluded women AND in real life it excluded slaves (some of who were kept and the women raped by one famous founding father). Even today, it can be argued that blacks aren't treated as if they were 'created equally'.

Mass protest resulted in the US bill of rights being included by way of constitutional amendment.

Jamaica doesn't have this history. We didn't fight for Independence. Our founding fathers risked nothing more than Colonial Office disapproval if we didn't toe the line. I heard or read somewhere (I honestly don't remember the culprit's identity) that we weren't handed a Constitution from Britain but drafted our own. RUBBISH! Historians will confirm that our Constitution, like almost every single one for former colonies, was drafted by the British Colonial Office and handed to us for tweaking. Our Constitutional Commission met for no more than four months and most of the 'tweaks' were driven by Norman Manley's iron will and legal acumen. Then it was returned to the Colonial Office for approval. Jamaica's Constitution was passed into law by a British 'Order in Council'.

So, originally, our bill of rights was subjected to many and varied exceptions and further made subject to existing law. As a result, despite the philosophy and expressly included principle of constitutional supremacy, a law forcing the Judiciary to sentence convicted murderers to death wasn't considered unconstitutional BUT when we passed our own post-independent statute to the same effect, it was struck down as unconstitutional. Several other pre-existing laws, passed by Britain and 'received' by Jamaica, were inviolable, despite directly contradicting our so-called 'constitutional rights'. Even when England repealed these archaic laws, they remained law in Jamaica because we didn't pass new acts dispensing with them.

This is why our new Charter of Rights, which isn't perfect (e.g., still subject to religious bigotry), is revolutionary and goes a far way to righting colonially imposed injustice endured for over 50 years of alleged 'independence'. This is why it's so important for a free, independent and completely separate judiciary to have the exclusive right to interpret these new rights and to ensure they're enforced for the protection of the governed, not at the pleasure of the governors.

Those still clinging to the not-so-plain words of the Constitution's Section 99(1) and then citing Supreme Court decisions that assert judges are to enforce fundamental human rights to support an argument that this is a judge's ONLY function are missing the point by schoolyards.

Even assuming judges only protect human rights, the question is, against whom? Government, of course! When you have a contract with Government to deliver 200 motor cars for the JCF and a legal dispute arises having nothing to do with fundamental rights, who'll decide whether you or the Government is in breach? Judges, of course! Any judge told by any prime minister or member of any Cabinet to perform or else isn't independent, no matter how strong his actual resolve may be.

Justice must not only be done; it can't only be promised; it must be SEEN to be done. Justice won't rely on entreaties to 'trust me' or pleas for the benefit of the doubt. Justice is blind and deaf. Only if you BEHAVE as if you respect the rule of law will I trust you not to open the door for future not-so-trustworthy prime ministers to saunter through.

Peace and love.

- Gordon Robinson is an attorney-at-law.

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