The Charter of Rights and our judiciary

Bert Samuels, GUEST COLUMNIST

The removal and replacement of an entire chapter of our half century-old Constitution represent one of the most substantial rewriting of a Constitution in recent history, among modern democratic nations.

Our Constitution has never, since its establishment some 49 years ago, been revisited and changed in such a fundamental way. It is noteworthy to say that, prior to 1962 - the year of our independence - the rights of the Jamaican people were to be found in the common law. During chattel slavery, we were not defined as humans, and following its abolition, we 'assumed' the rights which English men had always claimed, in the absence of a written Constitution, before 1962. The Charter of Rights, in some way, represents the first attempt on the part of our post-Independence Parliament to chart the path along which our own experiences have led us. It was envisaged that, with the passage of time and the benefit of experience, alteration to the Constitution would become necessary.

In a vibrant democracy, with the lapse of time, the wholesale rewriting of the rights of our young nation was, in a way, an inevitable eventuality. Though 2011 in no way compares with the watershed year in the South African experience - when it enshrined a new revolutionary Constitution in 1997 - the passage of this new chapter in our lives is, nonetheless, a most historic event. In fact, the dictatorship of Hitler's Germany, which exacted its massive death toll of victims of the Holocaust and World War II, led to the United Nations' adaptation of the Universal Declaration of Human Rights in 1948. The provisions of this universally accepted safeguard against arbitrary government, mushroomed thereafter, and were incorporated by several nations - new and old - in their respective constitutions.

The preamble to the bill introducing the Charter of Rights speaks to the "wide public consultation and due deliberation" which preceded the debates by our Parliament. This was emphasised, no doubt, as a direct result of the fact that the drafting of our 1962 Constitution in its entirety was the work of a few men, mainly lawyers, who entertained little or no consultation from the public, a fact emphasised and criticised in the work of Dr Trevor Munroe in his doctorial thesis, The Politics of Constitutional Decolonisation (1972).

The Judiciary's responsibility

The preamble goes on to promise that the charter provides more "comprehensive and effective protection" for our rights and freedoms.

The Charter of Rights does put new boundaries on the legislature, which cannot be trespassed on by our executive and/or lawmakers. However, it is hoped that our citizens will not have to be put to the expense and unnecessary suffering of having to challenge legislation which, effectively, derogates from these rights. We also put our trust in our judges that we will have a sufficiently bold Bench, which will not shy away from its responsibility to keep the executive and our Parliament in check. The boldness required is best described in the negative, when a West Indian judge, making his observation that many of his colleagues, who, in pronouncing on the constitutional rights of the citizen, write cowardly judgments which are "full of sound and fury, signifying nothing".

To give meaning to the Charter of Rights and security to the nation, our judiciary should remain out of the reach of the executive, giving true meaning to the words of Lord Diplock of the Privy Council when he said of our judges:

"... That their independence from political pressure by Parliament or by the executive in the exercise of their judicial functions shall be assured by granting to them such degree of security of tenure in their office as is justified by the importance of the jurisdiction that they exercise."

In other words, our judges, if they are to be the true guardians of the Charter of Rights, must be wholly immune from executive or parliamentary pressure.

There is a view that our fundamental rights were already secured by existing laws, that is, the 'Common Law of Jamaica', prior to their incorporation in Chapter 3 of our 1962 Constitution. Chapter 3 and its replacement in the new Charter of Rights are, therefore, declaratory of the common law. Unlike the Westminster system of government, our rights and the rules governing our institutions are to be found in a single instrument, the Constitution. Consequently, whereas in the United Kingdom, Parliament can pass any law it wishes, in Jamaica, the Constitution is sovereign. It is possible, and, in fact, has been previously done (e.g. the laws abolishing the Privy Council and creating the Caribbean Court of Justice as the final court of appeal, which were struck down), that a court can remove a law which is unconstitutional from the law books. The British courts have no such powers.

Opportunity ignored

It would be remiss of the writer to conclude, without saying that we have again ignored an opportunity, contemporaneously with the introduction of the new Charter of Rights, to remove the provisions of Section 61 of the Constitution. This section requires that the bill introducing the Charter of Rights (and all other bills) which deals with the rights, dignity and freedoms of our people, who endured centuries of English-imposed slavery, to be constitutionally forced to recite in the preamble, the following words: "Be it enacted by The Queen's Most Excellent Majesty ... ."

In closing, I must state that the very Parliament which voted the Charter of Rights into existence must commit to be guided by it in good times and in bad times, and be prepared to stand back and allow our Courts to freely pronounce upon and protect the rights which ensure the dignity of a people who removed the shackles of slavery over 170 years ago.

Bert S. Samuels is an attorney-at-law. Email feedback to columns@gleanerjm.com and bert.samuels@gmail.com.