Charter of Rights and Freedoms in context - Pt II
Published: Sunday | November 8, 2009
Notwithstanding the broadening and deepening of human rights to which the State must commit itself in this exercise, perhaps the most significant new feature in the Charter is to be found in the final declaration:
"We further declare that any person whose right, freedom or entitlement here stated has been abrogated, abridged, infringed or denied whether by action of the State or by the act of any other person or body may seek redress before a court of law."
The provisions governing human rights in the Constitution, at present, are applicable as safeguards only against abuses by the State. The operative words in this declaration making an abuse by "any other person or body" justiciable, expand the range of protection beyond the scope of governmental abuses only, to any abuse of fundamental rights and freedoms by any source. This is an enormous expansion of the protective covering as envisaged in the new Charter of Rights and Freedoms. It now makes it possible for citizens whose rights have been abused to seek redress in a court of law against not only Government, but any civil authority or person as well.
state of emergency
Police work to clear debris used by residents in Franklyn Town to block the road following the alleged shooting of a man by a member of the Jamaica Defence Force on June 20. The residents are calling the shooting a travesty of justice and blocked the roads to express their anger. Proposals in the new Charter of Rights and Freedoms now make it possible for citizens whose rights have been abused to seek redress in a court of law against not only Government, but any civil authority or person as well.
A crucial protection of human rights provided in the amendments proposed in the constitutional reform process, was the new regime for the declaration of a state of emergency.
No longer would it be possible to sustain a state of emergency (public emergency) for longer than two weeks without approval by two-thirds majority in each house of Parliament. This would require consent of the Opposition to obtain two-thirds majority in the Senate. Nor can any extension of the period exceed three months at a time. Additionally, the basis on which an emergency is declared can be challenged in a court of law. Further, any individual detained would have a right of review within six weeks, not six months, and the hearings would be by a tribunal whose findings must be accepted by the authorities.
The reforms also distinguish between a period of public disaster and a period of public emergency (state of emergency), the former being applicable to natural disasters, such as hurricanes, earthquakes, or epidemics of infectious diseases.
The abuse of the constitutional provisions for the declaration of a period of public emergency (state of emergency), which occurred in 1976, would no longer be possible under this new regime. Protection of human rights would be secure against abrogation, abridgement and infringement, except for reasons of a public emergency which threatens subversion of democratic institutions, as agreed by more than two-thirds majority of all members of each House of Parliament and determined, if contested by a court of law.
The Charter of Fundamental Rights and Freedoms could be acknowledged as a model instrument of justice by comparison with other constitutional charters of human rights elsewhere in the world particularly because the reforms would succeed in exercising control of specific rights previously abused by the State. But there is much more still to be done to shift the balance of power more assuredly from the State to the individual.
Many will contend, and with some justification, that even the most comprehensive and far-reaching Charter of Rights and Freedoms is in large part empty, but well meaning declarations, if it cannot be enforced on behalf of the poor and disadvantaged who are mostly defenceless against abuses of their fundamental rights and freedoms. This was envisaged by the Opposition when I presented proposals in the 1992-93 Budget Debate advancing measures which would provide the services of a new constitutional officer, an advocate general, specifically as a prosecutor of abuses of Fundamental Rights and Freedoms by the State.
I select from that presentation to the House of Representatives in 1992 the relevant argument in support of the creation of the position.
"When our Constitution was being drafted, the manner of appointment and the functions of the attorney general were the subject of much discussion. Some felt that politicians should have full control over wide aspects of the administration of justice. It would be dangerous, it was felt, to place in the hands of civil servants a subject which might have important political repercussions. Another view was that, in Jamaica, political tensions are sometimes high and, having regard to strong party political considerations, it was undesirable to have a politically appointed attorney general possessing all the powers of his British counterpart.
The compromise we took then was to give the responsibility for the administration of criminal justice to the director of public prosecutions, who would be free from political control. The attorney general could then serve as principal legal advisor to the Government as expressly stated in the Constitution. In addition, he would have numerous other functions derived from both statute and custom.
One such function is guardian of the public interest with power to institute judicial action, other than in criminal proceedings, against anyone, even a minister of government, as protector of the public interest. The attorney general is, therefore, called upon to divest himself of political partisanship, in carrying out a number of important functions, when appearing as guardian of the public interest.
But as we all know, the attorney general in the eyes of the public, no longer plays the role of an impartial officer of the system of justice, and, as we have seen, party political considerations do override the public interest. This has happened in governments under both political parties. It is time to correct this deficiency in our system of public law - even more so in light of the need to intensify the process of political democratisation.
This broad proposal is to remove from political control and functions the powers of the attorney general which deal with the protection and enforcement of public rights such as fundamental freedoms, environmental and consumer rights".
It is on this basis that I proposed the establishment of the post of advocate general which has been accepted, with a change of title to public defender. The enabling provisions would allow prosecution by the public defender in cases of far-reaching importance which would establish legal precedence on which class actions suits could be based. Successful prosecutions could greatly deter acts of political victimisation.
We turn now to the question of accountability. We presume that an advocate general, now renamed public defender, or a party with sufficient interest in a matter, will proceed to seek redress from the State on questions of abuses of human rights or other violations. We presume too, that the court may find against the State and impose penalties. But what we have often encountered in the past are instances where the State abuses its own laws and ignores the finding of the courts, or the State defaults on its own critical obligations.
What is the recourse? In the case of non-elected officials, transfer, suspension, fine or dismissal? In cases in which a clear obligation exists on the part of an elected official to act, the recourse is to remove the offender by the electoral process. In neither case is the remedy effective, in a practical sense."
Once more, I return to my presentation in the Budget Debate of 1992-93 for the far-reaching remedy which was proposed - the impeachment of public officials.
This proposal was presented to the Constitutional Reform Commission on human rights where it was accepted.
Impeachment proceedings would be applicable to members of Parliament, or senior officials, including the most senior, elected or non-elected, charged with wrongdoing, crime or misdemeanour in office, along the following lines:
The non-performance of something which the person charged is under a duty to perform - which may or may not be a statutory duty;
Abuse of privilege of office, e.g. misleading Parliament;
Abuse of statutory power or official authority;
Conduct demeaning to office;
Corruption or misappropriation of public funds or property.
The penalty of impeachment is the loss of office and the fact that the accused is found guilty does not prevent criminal or other proceedings from being pursued. Impeachment proceedings will be by a special panel named by the Head of State of members of the House of Representatives and of the Senate, three each from the majority and minority parties after hearings by a special joint select committee of Parliament.
The problem arising after the panel is selected is to name a chairman. Neither party would agree for a member of the other party to chair since this would produce a numerical advantage with three members and a chairman for one side. The answer to that problem is to use the political ombudsman as the chairman since the holder of that post is selected impartially.
The adoption of a Charter of Fundamental Rights and Freedoms, the appointment of a public defender and the introduction of impeachment proceedings are proposals designed to broaden and deepen the system of natural justice. The society in which we live is widely perceived to be unjust, except for the privileged. These reforms will offer a new perspective of a more just society better able to adjust the imbalances and to open wider the doors of equal rights and justice for all.
Our political culture is dynamic and continuously evolving. Much has changed over the last 50 years. The forces of change must be encouraged and directed towards correcting the ills of a society saddled by the scarcity of benefits, riddled with political abuse, insensitive to the condition of lives of the poor and vulnerable who constitute the majority of the people.
With deeper political maturity and broader improvements to the economic base, the happy day will come when the plural society of the two Jamaicas, with little understanding of each other, will blend into one. This is my hope and dream for a new Jamaica, but it is not likely in the immediate future.
Meanwhile, focus must be on reality, not dreams. The forces of change must be shaped to deal with what can work and be made to work better today with an eye to the future and a vision of tomorrow.
Edward Seaga is a former prime minister. He is now the pro-chancellor of UTech and a Distinguished Fellow at the UWI. Email: email@example.com