Can we trust our legislators with our rights? (Pt 2)

Published: Sunday | January 13, 2013 Comments 0
The Supreme Court on King Street, Kingston. - Norman Grindley/Chief Photographer
The Supreme Court on King Street, Kingston. - Norman Grindley/Chief Photographer

Frank Phipps, Guest Columnist

The provision to secure the protection of law for every person charged with a criminal offence is at Section 20 of the Constitution, where there is no provision in the section for a law as an exception to the protection or to limit the right, the right unrestricted.

S. 20 (6) Every person who is charged with a criminal offence -

(d) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before any court and ... .

The 1995 amendment to the Evidence Act provides at Section 31D for the admissibility in evidence of a statement in a document as evidence of any fact, provided certain conditions are met.

The effect of the amendment is to alter the constitutional provision at Section 20 (6) for a right to the defence to challenge the maker of the statement on the facts stated therein. The act remains as an ordinary law passed by a simple majority vote to alter a constitutional provision after there has been evidence that the provisions of the act have been abused by the creation of false statements from fictitious persons.

The act was challenged in several cases where the decisions to uphold its validity were based mainly on the fairness of the trial rather than the legality of the procedure used to enact the legislation.

In the three examples considered (also see Part 1 last Sunday), the judiciary had sanctioned the legislative practice that regarded the protection of individual rights as inconsequential for the procedure that altered a constitutional provision. The practice caused much anxiety in some quarters, with expressions of resentment and indignation for what was called the hijacking of rights.

RIGHTS AND FREEDOMS

The fundamental rights and freedoms of the individual that are entrenched in a written Constitution (unlike the UK Constitution) are regarded as far too precious to be brushed aside by the unrestrained power of the transient membership in the legislature. This concern was expressed in both Houses of Parliament when deliberating the Charter of Rights. Prime Minister Bruce Golding, in the House of Representatives, said:

"... The Constitution makes provision that Parliament can pass any law, which violates any provision, of the Fundamental Rights chapter of the Constitution, so long as in the view of Parliament, it is necessary to do so for the purposes of public safety, public morality, a whole range of things, which is really giving Parliament carte blanche to say, well, you know, whatever may be the fundamental rights of the people, if it suits us, if we feel that it is necessary for public safety, public health, public morality, we can override that.

"And, therefore, a great deal of focus was given to how do we strengthen that, so that, that becomes a firewall against governments, whether present or future; Parliament, whether present or future, how does that become a firewall against the ability of a parliamentary majority to effect legislation that would undermine the value of the Fundamental Rights chapter?

In the Senate, the leader of opposition business, Senator A.J. Nicholson, said:

"Norman Manley addressed that too. ... It was spoken to as long ago as 1962, and this is what he said: 'Now, Mr Speaker, another matter has been much discussed, and that is the position of the clauses on human rights.

'I have listened with deep interest to the very powerful and moving utterances which have been made in this House deploring the dry realistic atmosphere of which the written clauses, which having stated a right in broad, sweeping and possibly noble terms, proceed to whipple [sic], cut and trim and carve, so that when you have read it all to the end, you ask yourself, now where is the right and what are the exceptions?'

To address the imperious practice that constitutes a threat to democracy, a Charter of Fundamental Rights and Freedoms was introduced to "provide more comprehensive and effective protection for the fundamental rights and freedoms of all persons in Jamaica." The introduction of the charter leads to a consideration of the second of the two issues identified in Part 1: how individual rights are treated after the Charter of Rights.

CHARTER OF RIGHTS

The question of a major reform of the Constitution to include the protection of fundamental rights and freedoms was first presented to Parliament in 1991 by then Opposition Leader Edward Seaga, when he placed it on the parliamentary and public agenda during his Budget presentation. Seaga's proposal was for a Constituent Assembly to consider and make proposals for comprehensive constitutional reform.

Instead, Parliament established a parliamentary commission to deliberate on constitutional reform and prepare a report focusing on a Charter of Fundamental Rights. A report was prepared and presented to Parliament where it was referred to a joint select committee of both Houses.

In 2005, then Prime Minister P.J. Patterson presented a bill titled 'An Act to Amend the Constitution of Jamaica for a Charter of Rights and connected matters', and in 2006, after Patterson's bill fell off the parliamentary agenda, Prime Minister Simpson Miller presented another bill similar to Patterson's. The next legislative stage for the charter was after a change of government in 2007 when Prime Minister Golding presented a new bill in 2008 that became law in 2011 for a new Chapter 3.

The new Chapter 3 made substantial changes to what existed before, both in substance and in form. A brand new set of rights were identified for the people of Jamaica; some provisions of the original Chapter 3 were repeated - with or without modification, new ones added, and at least one former one omitted.

Dr Peter Phillips, in making his contribution to the debate on the bill for charter, said, "It sets out a new constitutional doctrine almost. Fundamentally, it places sovereignty clearly and unequivocally with the people, rather than Parliament. And it effectively circumscribes for the first time, really, the exercise of the powers by Parliament, and by other agencies of the executive, in that they may pass no law and may not undertake any action that is not - to quote the phrase - demonstrably justified in a free and democratic society."

The bill was sent to the Upper House for approval, where Senator Nicholson made similar observations when asking whether members would have adequate time to consider, debate and pass the Charter of Rights bill. He reasoned, "What we are doing is uprooting an entire chapter of our Constitution; this is a seminal moment. So we just want to be assured that the citizens are not going to be short-changed by some Senate." Nothing came of this concern, and the bill became law on April 11, 2011.

The charter is different to the original Chapter 3 and, importantly, it made substantial changes to the provisions for the protection of rights, especially at the new Section 13 (2):

(2) 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 -

(a) This chapter guarantees the rights and freedoms set out in subsections (3) and (6) of this section and in sections 14, 15, 16 and 17; and

(b) Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes those rights.

Of greater importance, however, is the omission of a saving clause in the charter, similar to the saving clause that was provided at Section  26 (8) of the original Chapter 3, to preserve the efficacy of previous legislation.

The declaration in the Charter for rights is:

13. (1) Whereas -

(a), (b), (c)

the following provisions of this chapter shall have effect for the purpose of affording protection to the rights and freedoms of persons as set out in those provisions, to the extent that those rights and freedoms do not prejudice the rights and freedoms of others.

The words in bold realise the intention to replace all what was in the original Chapter 3. The legislation effectively wiped the slate clean of all that was there before for fundamental rights and freedom; it was not a cut-and-paste exercise. Clearly, by this declaration Parliament did not intend that pre-existing protection of rights or the limitations to those protections should carry over from the previous Chapter 3 into the Charter, unless where specifically reserved.

The charter specified the laws that are reserved to carry over from the original Chapter 3 into the charter. These are:

at subsection (7) for laws relating to unusual punishment;

at subsection (8) for the laws for capital punishment,

at subsection (9) for periods of public emergency, and;

at subsection (12) for laws relating to named offences; and

at Section 49 for altering the Constitution.

This proves that there was no intention to carry over from the original Chapter 3. The limitations in the charter are right specific; they do not operate outside the provision for a specified protection so as to carry over from the original Chapter 3 to the new charter.

When the charter provides at Section 13 (2) (b) that "Parliament shall pass no law and no organ of the state shall take any action which abrogates, abridges or infringes those rights", it is difficult to accept that the three acts (including that cited in Part 1 last week) can survive the full and complete repeal of the original Chapter 3. Where our legislators go from here is everybody's business and anybody's guess.

Frank Phipps, QC, is an attorney-at-law. Email feedback to columns@gleanerjm.com.

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