The story of the Charter of Rights (Pt 1)

I attended Gordon House on Tuesday, March 22 for the passage of the Bill to enact a Charter of Fundamental Rights and Freedoms. I had been invited to attend because of my role in initiating the charter. While waiting on the proceedings to commence, I contemplated how this historic legislation originated. Eventually, I left after three hours of waiting in vain for history to unfold, because of a critical 5 p.m. appointment to which I had to attend.

In 1989, the Jamaica Labour Party (JLP) lost the general election. This left me as prime minister with a decision to make as to whether I should use the opportunity to retire from political life. What weighed heavily in my final decision to continue was the deep distress I had felt over the years concerning unjust and often brutal treatment which ordinary people had to suffer under the guise of law and order, or in the process of partisan distribution of state benefits. I realised, too, that apart from forceful protests, I had not offered any solutions to deal with these vexatious human-rights problems. As a consequence, this concern was one of the principal reasons I had for continuing in political service in order to have time to focus on human-rights issues. In Volume I of my autobiography, My Life and Leadership, I wrote:

"This provided a substantial basis for extensive constitutional reforms which would be introduced in the '90s to free 'we the people' from the excesses of political empowerment, so that one master would not be changed for another but that 'we the people' would become masters of our own. The realisation of that dream would become one of the driving forces of my career."

In my Budget presentation in Parliament in 1991, I cited some of the abuses occurring and called for the establishment of a constituent assembly, that is, a select group of persons comprising political representatives and members of civil society, to review the Constitution. The next year, this proposal was accepted and a Constitutional Reform Commission was established.

This commission sat under the chairmanship of Mr Justice Kerr. But when it completed its review and reported in August 1993, the treatment of human rights had been completely omitted. As a consequence, I instructed the Opposition JLP not to sign the report. This led to my strenuous call for a new commission to be devoted entirely to the review of the human-rights section of the Constitution, Chapter III. After mounting a strident campaign for a second commission, there was agreement to proceed under the chairmanship of the highly respected constitutional authority, Dr Lloyd Barnett. This commission reported in February 1994. It was this Constitutional Commission that produced the proposals submitted to Parliament for approval of human-rights reforms in Chapter III of the Constitution.

A joint select committee of both Houses of Parliament was appointed to review the proposals. This was completed in May 1994 after hearing 32 submissions from the public. The bill, however, was not submitted to Parliament until December 1, 1998. The process was drawn out over a long period. So long indeed that I had to secure the voluntary services of a former solicitor general, Ewart Forrest, who I asked to draft a bill based on the agreed amendments for me to table in the House of Representatives. On completion, that bill was presented by me but the leader of the House, Dr Peter Phillips, refused to allow it to be debated as the Opposition had no right to table legislation. This attempt, however, spurred Government to table a bill on the legislation required for a Charter of Rights. But the bill did not reflect the agreed positions reached in the joint select committee of Parliament. It presented the Government position only in several key areas of discussions. The bill was withdrawn and, after a period of time, a new bill was presented for Parliament to consider.

Years had passed until this point was reached, and many years more would be added, before this bill passed through the select committee to set the stage for Parliament to resume. With further time passing and no action, I drew attention in the press to the time lag as a deliberate strategy to avoid approval of an instrument which would curtail abuse of the rights of the people by the state.

Prime Minister Bruce Golding, in January 2008, named a small team of Dr Lloyd Barnett, Shirley Miller from the Ministry of Justice, who had responsibility for the legislation, and myself to prepare a list of disagreements which still existed in the select committee. These could then become the focus of special attention to expedite the legislation. The shortlist included the death penalty, which became another drawn-out discussion. But at any rate, the parliamentary select committee was once again at work and proceeding toward conclusion of the review of the bill with a view to early debate in the House of Representatives.

The Bill for the enactment of a Charter of Fundamental Rights and Freedoms was ready for debate in 2009, at which time it began a long stay in Parliament with prescribed periods for further delays between approval of the House and Senate, as required by the Constitution. This sojourn ended in the House of Representatives on March 22 when the decision was made to approve the bill with full support of all present. The bill was approved last week in the Senate, after which the legislation will be routed to the governor general for his assent. At that point, Jamaica will have a Charter of Fundamental Rights and Freedoms, after a long journey of 17 years.

The journey may have been a necessarily long one to cautiously secure justice for all. In Jamaica, law and order are considered essential for a civilised society, but justice is not. Law, order and justice are supported widely as concepts virtually by all, but for the great number of underprivileged people in the society, justice is perceived to be denied. From this broad perception flows not only the loss of rights and freedoms, but in a much bigger sense, the wider society of underprivileged people feel the impact of a reinforcement of rejection which widens the national divide between 'we' and 'them'.

Split in national identity

Few people in the society recognise the implications of the split in national identity. Little do they know that the 'we' are the ones who try to keep the values of law and order because 'we' feel a sense of protection, but it is not the same for 'them', who have a much more arbitrary concept of law and order because they have far less to protect. This divide makes it difficult to appeal to any sense of moral right or wrong and attempted solutions which go this route of moral suasion have little hope of success. Being a second-class citizen in one's own country and third-class in most others can be a traumatic experience for Jamaicans, one which translates into feelings of reluctant support for principles held by first-class citizens, resulting in a resolve to live with the more loosely construed principles of the world of second-class citizens to which they have been wrongly condemned.

This is the fundamental shortfall of justice which the Charter of Rights would seek to correct in order to bring balance to the society and create a new order of harmony.

Edward Seaga is a former prime minister. He is now chancellor of the University of Technology and a distinguished fellow at the University of the West indies, Mona. Email columns@gleanerjm.com and odf@uwimona.com.