Frank Phipps, the wily, old attorney with whom this newspaper doesn't always agree but whose intellectual feistiness we cherish, raised an intriguing issue at a Gleaner Editors' Forum last week which, if it holds true, could spell a legal and constitutional conundrum for the Government.
Mr Phipps' essential claim is that when the Charter of Fundamental Rights and Freedoms was passed by Parliament in 2011 to replace the old Chapter 3 of the Jamaican Constitution, it did not save, or perpetuate, many laws that were in place at the time that may have, in certain circumstances, abridged certain of the rights covered by the charter.
The starting point, perhaps, is Section 26 (8) of the newly repealed Chapter 3 of the Constitution that came into force at the time of Jamaica's Independence in 1962.
It says: "Nothing contained in any law in force immediately before the appointed day shall be held to be inconsistent with any of the provisions of this chapter; and nothing done under the authority of any such law shall be held to be done in contravention of any of these provisions."
That declaration is, on the face of it, all embracing.
Nearly half a century later, the new Section 13 (2) of the Constitution, which is part of the new charter, guarantees a raft of rights "subject to sections 18 and 49, and to subsections (9) and (12) of this section, and save only as may be demonstrably justified in a free and democratic society ...".
This appears to limit the continuation, after the passage of the Charter of Rights, of those laws that may impinge upon the freedoms guaranteed by charter.
The referenced Section 18 declares that marriage in Jamaica can only be between one woman and one man, and Section 49 deals with the processes for amending the Constitution.
Section 13 (9), on the face of it, provides the basis for derogation from:
The right, provided for in 13(3) (f), of all citizens of Jamaica to enter the country, with the right to move freely and live anywhere within its borders;
The right, as per Section 14, to liberty, except where that liberty is abridged in specific circumstances, such as the execution of a sentence of a court; and
The obligation for proceedings of courts to be public.
On the basis of Mr Phipps' thesis, therefore, it might be unconstitutional going forward, to say, extradite an individual, a process that deprives that person of his freedom, in a circumstance where he has not been convicted by a court and therefore not the subject of the execution of a sentence.
Think of Christopher Coke, and the public enquiry into his extradition by the former administration, where Mr Phipps was a representative of the then governing Jamaica Labour Party. Other cases may be on the horizon.
This newspaper, of course, does not possess the competence to pronounce on the ultimate validity of Frank Phipps' assertions, but he does appear, as they would say in circles, to have a prima facie case.
We expect that, at some point, these arguments will reach the courts for resolution.
In the meantime, it would be worthwhile to hear the views of the justice minister and the attorney general on whether the Parliament erred on this one.
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