Norman Manley on fundamental rights

This is the third in a series of articles by the writer on the Charter of Rights.

As Jamaica prepared to take its place among sovereign states in 1962, Norman Washington Manley, the chief architect of the development of our Independence Constitution, set out one of the cardinal principles that must govern constitutional practice in the protection of human rights in a democratic society. This has to do with the exercise of functions entrusted to an attorney general.

"The attorney general in England," he advised, "is a person appointed by the government in power. There are no constitutional rules, but it is an accepted tradition that he must use his powers so far as the criminal law is concerned without any political interference whatsoever."

"No rule says so," N.W. Manley explained, "but if it were ever to be discovered that the attorney general listened to, or consulted, the Cabinet about a criminal matter, there would be such an outcry in the country as happened in 1921, when one attorney general was discovered to have done that; and he had to resign.

"I was a student at the Bar; he spoke to the House of Commons and apologised to the House with tears streaming down his face for having failed in his duty, in having consulted the Cabinet in a criminal matter. And it was a political criminal prosecution - prosecution of a communist for an offence."

Principle compromised?

Has that cardinal principle not been utterly compromised, shunted aside and abandoned in independent Jamaica in recent times, even in the very season in which legislative approval was being sought for our new charter?

Respect on the part of governments for the rights to which citizens are entitled has not ever been easily won. The civil-rights movement in the United States represents a modern example of the activist resistance that has had to be employed from time to time to secure protection of such rights. It was indeed that atmosphere of resistance which caused the very first charter of rights - Magna Carta - to be agreed on, and sealed almost 800 years ago.

It must be fully understood, therefore, that when civil and political rights are not guaranteed to all as part of equal protection under the law, or when such guarantees exist only on paper, but are not respected in practice, opposition and even civil unrest will ensue. That sentiment must come quickly to characterise our collective approach to the provisions and the intent of our own new charter. It is an unerring sentiment, buttressed by telling events throughout history.

The development of Jamaica's new Charter of Fundamental Rights and Freedoms could not be properly chronicled without reference to our Independence Constitution. In particular, we would do well to examine how N.W. Manley, then head of government, approached the issue of the people's rights, and his contribution to the debate on the proposals that were presented to the legislature for a new Constitution.

For centuries, the rights to which Jamaican citizens were entitled were those that the common law recognised. For example, the right to vote was not generally guaranteed: it was a privilege enjoyed in conjunction with property rights, thereby keeping the vast majority of citizens outside the loop.

The hand of N.W. Manley rests firmly on the attainment of adult suffrage, now guaranteed in the new charter in the form of "the right of every citizen of Jamaica who is qualified to be registered as an elector for elections to the House of Representatives, to be so registered; and who is so registered, to vote in free and fair elections".

In a democratic society, the right to vote is the ultimate lawful weapon against a government's arbitrary exercise of power and abuse of functions. And this business of those who govern deriving authority from the people was one of the first issues that Manley addressed in his contribution to the debate on the motion in the House of Representatives on Tuesday, January 23, 1962: "Resolved that the House do consider and approve a Report of the Committees of the Legislature to prepare proposals for a Constitution to take effect on Independence."

This was his approach: The people say that we do not always get the best men; that the country wants the best men to be in charge of it. Now, the answer to that is that the system compels people who have an interest in their country to be prepared to come into public life; and as time goes on, one hopes, and believes, and knows that more and more people will be willing to come into public life. And I am not altogether sure that possessing brains and ability are the only criteria for fitness to govern the people. I am not even sure that they are the most important criteria.

But the important thing about the system is that there is no other system that can help to create a basic relationship between the people and the Government. There is no other system, he maintained, that can help to integrate the society to which you belong. Any system which depends upon putting people in charge of public affairs, who do not derive their authority from the support of the people themselves, has that fundamental weakness that it loosens the connection between the governed and those who govern. To that extent, it weakens the very foundations of Government.

In that debate, Manley dealt with human-rights protection frontally. We in Jamaica, he affirmed, now enjoy as a living fact all the fundamental rights that are found in this Constitution. We enjoy and accept, as part of the air we breathe, a system in which the rule of law prevails. We stand on equal footing before the law with all other people in the land. We enjoy these rights as a matter of course, and no one would like to think they would ever be lost.

But, it is to be said at the beginning, and never doubted, that it is not constitutions that preserve these rights. It is the spirit of the people; it is the vigilance of the people; it is the public opinion; and it is the constant awareness of itself; and it is the quality of the leadership that exists. So when you have put into the Constitution these things, let no one imagine that you have secured your future forever, the premier declared.

Radical shift

Perhaps the most radical shift that has been adopted in our new charter is that the rights are declared to be subject to a single general exception which includes the challenge: "save only as may be demonstrably justified in a free and democratic society". This means, for example, that if someone in Jamaica challenges the Government with respect to how it has dealt with the protection of any of those rights, the Government must be prepared to demonstrate that its action or inaction was consistent with how the matter would be dealt with in a free and democratic society.

That approach, it would perhaps be generally agreed, is fair and just, since it is the Government which had acted or failed to act, and is now being challenged. That, however, was not the approach that was adopted in the older constitutions and followed in our Independence Constitution. The approach then was different on two scores.

First, the rights, as drafted, were subject to a series of exceptions; and second, the citizen had the burden of proving the challenge mounted by him: that the Government had infringed his fundamental right.

That approach did not remain unquestioned by Manley and others during the deliberations on the proposals for the 1962 Constitution. For, he was concerned that "these written-in clauses which, having stated a right in broad, sweeping and possibly noble terms, proceed to whittle, cut and trim and carve so that when you read it all, at the end you ask yourself: now where is the right and what are the exceptions?"

The concern has now been addressed in the new Charter of Rights and Freedoms, which includes one general overriding exception, strengthened by a fetter on the power of the authorities, including the lawmaking body, in that: "Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes those rights."

Manley also perhaps apprehended that Jamaicans would one day come to agonise over the issue of capital punishment, noting that there was the proposed section which provides that no one shall be subjected to inhuman or degrading punishment.

"Right at this moment," he said, "one of the greatest commissions of jurists ever assembled in the world is debating the question as to how far capital punishment is consistent with a prohibition of inflicting inhuman punishment. Because, obviously, the highest level of inhumanity that a fellow creature can be subjected to is to have his life taken away. Once you have taken away his life, you have done the most wicked thing to him. He ceases to be a human being."

And, that was an issue that came to present an unavoidable challenge even as our new charter meandered its way through the legislative process.

A.J. Nicholson is an attorney-at-law and opposition spokesman on justice. Email feedback to columns@gleanerjm.com.