The story of the Charter of Rights (Pt 2)

Edward Seaga, Contributor

For the most part, the Constitution is seen by Jamaicans as a protector of fundamental rights and freedoms. Yet few persons are aware of the particular rights and freedoms for which Chapter III of the Constitution makes provision. In great part, this is because of the structure of Chapter III, in which many of the rights and freedoms are qualified by exceptions which allow them to be suspended by the State in the public interest. The result is that the seriated compilation of rights and freedoms is lost in qualifications and circumscriptions scattered over several sections of Chapter III.

To overcome this jumble, I proposed to the newly appointed Constitutional Reform Commission a listing of all rights and freedoms, seriatim, in a simple presentation as a Charter of Rights. This format lends itself to reproduction as a poster for schools to enable awareness of fundamental rights and freedoms to begin at an early age. In the process, several new rights were added. The concept was accepted and I prepared a draft of the proposed Charter of Rights for discussion.

The most critical problem to be dealt with in the reforms was the abuse of the rights in the Constitution because of existing loopholes. One of the matters for discussion which became controversial was whether the fundamental rights and freedoms proposed were absolute and inalienable to the individual. This is based on the concept that all rights belong inalienably to the people and it is the people who selectively grant power to the State to govern with certain rights. Some argue that no rights should be granted by the people to the State. But that would lead to an ungovernable society, and eventually, anarchy.

It is recognised that the State must reserve some authority to qualify the rights and freedoms which citizens hold, subject to safeguards against abuse by the State. This is particularly so in times of peril and emergency. The State rests its need for authority to limit certain rights and freedoms on arguments of justification, in the public interest, to secure:

Public order

Public safety

Public health, etc.

But in the form in which the legislation was presented in Chapter III, the State determines what is in the public interest in times of peril and emergency without allowing any challenge, except by the opposition, which it can easily override. Further, in a state of emergency in 1976, while individuals had a right to appeal their detention, the tribunal before which they would appear was not independent. It was hand-picked by government to give a government response to appeals. In the state of emergency in 1976, the tribunal mostly failed to hear appeals, or to give any response at all after hearings.

open to interpretation

These caveats in the present Constitution, which allowed the State to suspend rights 'in the public interest', were widely drawn and open to varied subjective and political interpretations which allowed for wide-scale abuse by the State. To overcome this problem, a new formulation to limit the restrictions imposed on rights and freedoms was sought by comparison with other constitutions. The Canadian and Trinidadian models proved most suitable, having the benefit of judicial interpretations on which we could rely.

The result was the proposal in the Constitutional Reform Commission for a saving clause in the Bill of the Charter of Fundamental Rights and Freedoms, which provides that "Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes any of the rights and freedoms of the Constitution ... save only for laws which are required for the governance of the State in periods of peril and emergency, or as may be demonstrably justified in a free and democratic society".

This eloquent saving clause would prevent severe abuse by the State of the rights granted to it by the people to suspend particular rights or freedoms 'in the public interest', so that suspension of rights by the State could be only for the purpose of safeguarding the public interest "in times of peril and emergency, or as may be justified in a free and democratic society" and not for government to strengthen its own position to abuse the rights of the people. This would remove the danger now present in the Constitution where there is open abuse by government in determining what is in the public interest without allowing for due process of law. No longer would government have complete power which it can abuse with impunity.

With these formidable changes to the structure of the human-rights section of the Constitution, the protected rights and freedoms agreed were as follows:

a) The right to life, liberty and security of the person and the right not to be deprived thereof, except on the execution of the sentence of a court in respect of a criminal offence of which the person has been convicted;

b) The right to freedom of thought, conscience, belief and observance of political doctrines;

c) The right to freedom of expression;

d) The right to seek, receive, distribute or disseminate information, opinions and ideas through any media;

e) The right to freedom of peaceful assembly and association;

f) The right to freedom of movement, that is to say, the right:

of every citizen of Jamaica to enter Jamaica; and

of every person lawfully in Jamaica, to move around freely throughout Jamaica, to reside in any part of Jamaica, and to leave Jamaica;

(g) The right to equality before the law;

(h) The right to equitable and humane treatment by any public authority in the exercise of any function;

(i) The right to freedom from discrimination on the grounds of -

being male or female;

race, place of origin, social class, colour, religion or political opinions;

(j) The right of everyone to -

protection from search of the person and property;

respect for and protection of private and family life, and privacy of the home; and

protection of privacy of other property and of communication;

(k) The right of every child:

to such measures or protection as are required by virtue of the status of being a minor or as part of the family, society and the State;

who is a citizen of Jamaica, to publicly funded tuition in a public educational institution at the pre-primary and primary levels;

(l) 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;

(m) 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;

(n) The right of every citizen of Jamaica to be granted a passport and not to be denied or deprived thereof, except by due process of law;

(o) The right to protection from torture, or inhumane or degrading punishment or other treatment as provided in subsections (6) and (7);

(p) The right to freedom of the person as provided in Section 14;

(q) The protection of property rights as provided in Section 15;

(r) The right to due process as provided in Section 16; and

(s) The right to freedom of religion, as provided in Section 17.

The 19 itemised rights and freedoms listed above apply to complaints or charges of abuses between the individual and the State. However, in the deliberation of the Constitutional Reform Commission, it was decided to take a giant step into a new area by allowing charges and complaints to be made by individuals against "natural or juristic persons" (see Section 13(5) of the legislation) that is, other individuals or legal entities in civil society and private enterprise. This will now make it possible to exercise constitutional rights against all chargeable parties, public or private, opening a vast new era of jurisdiction and providing virtually complete coverage against the "abrogation, abridgement, or infringement" or the constitutional rights set out in the charter.

I will conclude with a quote from a previous article on the Charter of Rights and Freedoms (published on November 8, 2009):

"The enactment of a Charter of Fundamental Rights and Freedoms; the appointment of a public defender (and the introduction of impeachment proceedings, are proposals designed to broaden and deepen the system of natural justice.) The society in which we live is widely perceived to be unjust, except for the privileged. These reforms will offer a new perspective of a more just society better able to adjust the imbalances and to open wider the doors of equal rights and justice for all.

"Our political culture is dynamic and continuously evolving. Much has changed over the past 50 years. The forces of change must be encouraged and directed towards correcting the ills of a society saddled by the scarcity of benefits, riddled with political abuse, and insensitive to the condition of lives of the poor and vulnerable who constitute the majority of the people.

"With deeper political maturity and broader improvements to the economic base, the happy day will come when the plural society of the two Jamaicas, with little understanding of each other, will blend into one. This is my hope and dream for a new Jamaica, but it is not likely in the immediate future.

"Meanwhile, focus must be on reality, not dreams. The forces of change must be shaped to deal with what can work and be made to work better today with an eye to the future and a vision of tomorrow."

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. Email feedback to columns@gleanerjm.com and odf@uwimona.com.