Charter of Rights and Freedoms in context (Part 1)
Published: Sunday | November 1, 2009
The review of the Constitution of Jamaica is seen differently by various people:
a routine review after more than three decades;
an opportunity to close gaps and generally tie up loose ends;
a change of system of government from monarchical to republican; or
a complete review of earlier thinking, with an open mind.
The Jamaica Labour Party set this review in a wider frame of reference. We insisted that a wide cross-section of citizens should be engaged in the process of constitutional reform. Hence, my proposal in the House of Representatives as leader of the Opposition in 1991, for a constituent assembly reflecting this cross-section. The establishment of a broad-based Constitutional Reform Commission followed in 1992, in keeping with the call for broad representation. This was the first in a series of steps designed to open the constitution for broader and deeper thinking.
The Constitutional Reform Commission established by Parliament submitted its report on August 23, 1994. The Opposition refused to sign the report because the commission failed to deal with the human rights section, Chapter III of the Constitution. A second commission was demanded by the Opposition. This was appointed with a new chairman, Dr. Lloyd Barnett Q.C., constitutional authority, to deal with human rights and freedoms. The report of this second Constitutional Reform Commission was presented to Parliament for debate on November 22, 1995. I outlined my concept of the framework for constitutional reforms in this debate:
"Attempts to focus on constitutional reforms in the past have been met with an apathetic yawn, lack of understanding and disbelief that the system, as we know it, should be changed for one we don't know; or impatience with the thought that time and effort are being spent on matters which are not high on the agenda of immediate concern.
We are today, where we were in the late 1930s, in the tumult of emergence of a new Jamaica; in the late '50s, struggling with the dilemma of federation and independence; and throughout the '70s, amid the divisive shift from an open to a closed society. Now we are at another crossroads searching again for a new dynamic to refocus our energies. As we see it, it is this new dynamic unleashing fresh energies, which must be the sublime goal of the process of constitutional reform.
The valve to unleash new energies to propel the country forward to the end of this decade and century was rooted in the turmoil and abuses of the 1970s. It was in that decade that Jamaicans awoke to the realisation that the constitution of Jamaica, drafted for independence in 1962, was devised for a much kinder and gentler nation. Certainly it was written in the shadow of those unwritten understandings governing the United Kingdom which ensured that British subjects needed no written charter. Everyone knew where the lines of misconduct were drawn and, if the letter of the law did not spell out precisely the limits of power, no one would use laxity of the law to abuse the parameters of power because that simply wouldn't be cricket.
Long and great traditions established the permissible boundaries of tolerance. As a young nation we have no such long and great traditions of our own. We borrow from other nations those values which govern society and reject what we wish, when we wish to abuse the system. That plainly was the mode followed to instigate the most draconian violation of human rights in our nation's history when the infamous State of Emergency was declared on June 19, 1976, on the flimsiest of grounds to justify the meanest of ends - political survival. Jamaicans learned then, that our Constitution was elastic and could be stretched to shape many unconstitutional conveniences.
We learned too, in that year, that something had to be done to limit the elasticity of our Constitution which is not so much defective in what it says, but that it speaks in a soft voice where a stronger, firmer and more definite position should be stated."
For the most part, the Constitution is seen by Jamaicans as a protector of fundamental rights and freedoms. Yet few persons are aware of the particular rights and freedoms for which Chapter III of the Constitution makes provision. In great part, this is due to the structure of the Chapter in which some of the rights and freedoms are qualified by exceptions which allow them to be suspended in the public interest. The result is that a clear compilation of rights and freedoms is lost in qualifications and circumscription scattered over several pages.
To overcome this jumble, I proposed to the newly appointed Constitutional Reform Commission a listing of all rights and freedoms, seriatim, in a simple presentation as a Charter of Rights. This format lends itself to reproduction as a poster for schools to enable awareness of fundamental rights and freedoms to begin at a critical age. In the process, several new rights were added. The concept was accepted and I prepared a draft of the proposed Charter of Rights for discussion.
One of the matters for discussion which became controversial, was whether the fundamental rights and freedoms proposed were absolute and inalienable.
It is recognised that the state must reserve some authority to qualify the rights and freedoms which citizens require, subject to safeguards against abuse by the state. This is particularly so in times of peril and emergency. The state rests its authority to limit certain rights and freedoms on arguments of justification in the public interest to secure:
public health, etc.
These caveats in the present Constitution were widely drawn and open to varied subjective and political interpretations which allowed for wide-scale abuse. To overcome this problem, a new formulation to limit the restrictions imposed on rights and freedoms was sought by comparison with other constitutions. The Canadian model proved most suitable, having the benefit of judicial interpretations on which we could rely.
The result was the proposal in the Constitutional Reform Commission was for a saving clause for "the Charter of Fundamental Rights and Freedoms", which would "prohibit the state from passing any law and any organ of the state from taking any action which abrogates, abridges or infringes any of the articles of the charter, "save only for laws that are required for the governance of the State in periods of peril and emergency or as may be demonstrably justified in a free and democratic society."
This would prevent the Government from suspending any right or freedom in the public interest. Some argued that there should be no saving clause, that all fundamental rights and freedoms should be absolute and inalienable, save, of course, for periods of peril and emergency.
In the discussions that followed, we agreed that the construction of the saving clause as drafted, (see above) allowed all rights to be as inalienable as possible without derogating from the need for exceptional treatment "in periods of peril and emergency, or as may be demonstrably justified in a free and democratic society," for which ample judicial interpretation established by precedence exists.
With these formidable surgical changes to the structure of the human rights section of the Constitution, the protected rights and freedoms agreed were as follows:
life, liberty and the security of the person;
freedom of thought, conscience, belief and observance of religious and political doctrines;
freedom of expression;
the right to seek, distribute or disseminate to any other person, information, opinions and ideas through any media;
freedom of peaceful assembly and association;
freedom of movement;
due process of law;
equality before the law;
equitable and humane treatment by any public authority in the exercise of any function;
freedom from discrimination, on the grounds of race, social class, colour, religion, gender, place of origin or political preference;
protection of property rights;
protection from search of the person, respect for private and family life, privacy of home and of communication;
entitlement of every child -
to such measures of protection as are required by the status of a minor or as part of the family, society and the state; and
who is a citizen to publicly funded education in a public educational institution at the pre-primary and primary levels;
entitlement of person with a criminal offence or detained in pursuance of a provision of any enactment to communicate with and be visited by his spouse, partner or family member, religious counsellor and a medical practitioner of his choice;
enjoyment of a healthy and productive environment free from threat or injury or damage from environmental abuse and degradation of the ecological heritage;
entitlement of every citizen who registered to vote, to participate and vote in free and fair elections;
entitlement of every citizen to be granted a passport and not be denied or deprived thereof except by due process of law; and
entitlement of a person who is charged with or detained, in connection with a criminal offence to communicate with and retain an attorney-at-law.
The rights which citizens require of the state, and which the state is committed to grant, will cover many controversial and vexed areas of abuses from which citizens will be protected in the proposed Charter of Fundamental Rights and Freedoms in the Constitution.
These protective articles will constitutionally prohibit such prominent abuses as, inter alia, political victimisation, abuse of children, telephone tapping of homes, environmental and ecological degradation and will commit the State constitutionally to free education through the pre-primary and primary levels and to the holding of free and fair elections.
The Charter of Rights has strength to ensure observance of its provisions, only to the extent that specific criminal and civil law enforce the rights and freedoms. Without this support the Charter would be largely a wish list. But some of the crucial rights in the Charter are not based in criminal or civil law. It was for this reason that the post of public defender was introduced by me to deal with acts of discrimination, victimisation and maintenance of certain aspects of a clean and healthy environment, etc. which are offences under the Constitution. But the legislative reinforcement still requires a further leg to completely safeguard our rights and freedoms. This is impeachment, as previously outlined, which holds high ranking individuals culpable in positions of power who fail to do what they have a statutory responsibility to do or what they ought not to do in performing their responsibilities by misusing their statutory powers. Impeachment is the method used to deal with serious offences of this nature.
The Charter, the public defender and impeachment are the ultimate safeguards of our rights. The process began with the public defender, it is continuing with legislation of the Charter and, hopefully, it will conclude with the enactment of the process of impeachment in due course.
Rev Al Miller (right), pastor of Fellowship Tabernacle Church, confers with Shirley Richards of the Lawyers' Christian Fellowship (LCF), as Church leaders and the LCF joined forces and urged the Joint Select Committee of Parliament, which is examing details for a new Constitution, to allow the group to make a presentation on the proposed Charter of Rights in March 2006. - Rudolph Brown/Photographer
Edward Seaga is a former prime minister. He is now the Pro-Chancellor of UTech and a Distinguished Fellow at the UWI. Email: firstname.lastname@example.org or email@example.com.