Mon | Nov 20, 2017

Is the Constitution a sham?

Published:Friday | March 21, 2014 | 12:00 AM

By Peter Espeut

A Constitution is a set of fundamental principles or established precedents according to which a state is governed. The Constitution of Jamaica is a shackle which binds both Jamaican citizens and the Jamaican Government.

Three years ago, the Parliament amended the Constitution of Jamaica to add a Charter of Fundamental Rights and Freedoms. Section 13(2)(b) states, inter alia, that "no organ of the state shall take any action which abrogates, abridges or infringes those rights". Sounds like a shackle to me.

Paragraph (3) of Section 13 defines the 19 fundamental rights and freedoms of every Jamaican which the Jamaican State must defend. The fundamental right listed as (L) reads as follows: "The right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage."

Therefore, if the Jamaican Government takes any action which infringes on the right of every Jamaican to "enjoy a healthy and productive environment", they would be in breach of the Jamaican Constitution. Being shackled by the Constitution, the courts should be able to prevent the Government from committing such a breach.

Of course, breaches of this section of the Jamaican Constitution by the Government and its agencies take place all the time. For example, the failure of the Government to take steps to prevent rum distilleries from polluting our rivers with dunder, and the bauxite and cement companies from polluting the air. Topical is the dump at Riverton blazing away (as it does several times each year), billowing smoke across several residential areas affecting tens of thousands of Jamaicans.

SAFE PLACES TO BREED

I wonder whether it would make a difference if affected Jamaicans were able to bring a constitutional motion or class-action suit against the Government. It would, if the Constitution were a shackle.

Because of their constitutional environmental obligations, from time to time, the Government of Jamaica creates areas for special environmental protection. Under the Forestry Act, the Government has created forest reserves like the Hellshire Hills to protect the forest. Under the Fishing Industry Act, the Government has created fish sanctuaries like the one at Galleon Harbour (between the Goat Islands and the Hellshire Hills) to ensure that fish have safe areas to breed.

And under the Wildlife Protection Act, the Government has created game sanctuaries (like the Goat Islands) to protect wildlife from being killed, or to prevent game from being hunted and eaten.

The Natural Resources Conservation Authority Act, passed in 1991, provides for the creation of national parks (land only), marine parks (sea only), and protected areas (both land and sea) for the purpose of promoting environmental conservation and sustainable development.

With funding from USAID, the Government of Jamaica hired a consultant, Dr Conrad Douglas, to identify and recommend areas worthy of such designation. He identified the Hellshire Hills, Portland Ridge, and the marine space between them (Portland Bight) - among others - as priority areas for conservation. And on Earth Day (22 April) 1999, the Portland Bight Protected Area (PBPA) was created by the Government of Jamaica.

At 724 square miles, it is Jamaica's largest protected area, containing agriculture (for example, Monymusk), industry (for example, Jamalco), ports (for example, Port Esquivel), and about 50,000 residents in 49 settlements, in addition to wildlife and valuable ecosystems like forests, wetlands and coral reefs.

The intention was never to forbid development activity with the PBPA, but rather to make the area a model of sustainable development - development which would greatly improve the local economy, thus increasing local prosperity, but have nil or minimal impact upon the natural environment.

Human settlement and economic activity can coexist with wildlife and healthy ecosystems. Because of this, a successful application was made to UNESCO for the PBPA to be designated a biosphere reserve. The PBPA was to be a model for environmental conservation, poverty reduction, and sustainable prosperity.

Such a project would admirably guarantee residents of the PBPA "the right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage". The Government of Jamaica is to be commended for supporting these plans to ensure that the constitutional rights of Jamaicans are protected.

But what if some "organ of the state" should seek to "abrogate, abridge or infringe" the environmental rights of Jamaicans? Don't you think Jamaicans should resist any such unconstitutional actions? I, for one, wish to be shackled by the Jamaican Constitution.

Peter Espeut is a sociologist and consultant in sustainable rural development. Email feedback to columns@gleanerjm.com.