‘The rule of law will be paramount’
Published:Sunday | January 15, 2012 | 12:00 AM
Martin Henry, Contributor
In her shining second inaugural address, Prime Minister Portia Simpson Miller, among several other commitments given to us, said, “On my watch, I pledge that the rule of law will be paramount.” What does that mean? The prime minister did not elaborate. And most people think the rule of law just means law enforcement and fighting crime.
The concept of the rule of law is of ancient pedigree, but no one has given it greater standing than the great British jurist of the 19th and early 20th centuries, A.V. Dicey, through his multi-edition monumental work, Introduction to the Study of the Law of the Constitution.
Britain does not have a written constitution, which is not to say it does not have a constitution. Britain is the home of constitutional government, and we have inherited that tradition as a cornerstone of our legal culture. Culture Minister Lisa Hanna must bear in mind the European contribution to our culture and heritage through language, institutions and practice, the law being by no means the least of the lot.
It’s a fair guess that the majority of our elected representatives have no real knowledge of the written Jamaican Constitution much less of its historical and legal philosophical origins. Prime Minister Portia Simpson Miller wisely included in her first Cabinet meeting last Monday a seminar on the operations of Cabinet in the Government of Jamaica. Similar awareness building should be done for parliamentarians on matters such as the role of Parliament and parliamentarians, and the Jamaican Constitution and constitutional government – and, of course, on the rule of law.
Dicey opens his chapter on ‘The Rule of Law: Its Nature and General Applications’ with the observation that: “Two features have at all times, since the Norman conquest [1066 AD], characterised the political institutions of England. The first of these is the – undisputed supremacy throughout the whole country of the central government.”
The rise of the garrisons in our political culture, or as the last prime minister chose to relabel them, ‘zones of political exclusion’, has ended up challenging the supreme authority of the government of the Jamaican state over the whole country. The Tivoli Gardens clash in May 2010 between armed paramilitaries defending the community leader against the armed forces of the state seeking to execute a warrant for his arrest made this very obvious in deadly fashion.
Supremacy of law
The second feature of the political institutions of England, according to Dicey, “and which is closely connected to the first, is the rule or supremacy of law. That ‘rule of law’ ... which forms a fundamental principle of the constitution has three meanings, or may be regarded from three different points of view,” Dicey explains:
First, “[the rue of law] means ... the absolute supremacy or predominance of regular law, as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government.”
Second, “It means ... equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. [It] excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals.”
Third, [the rule of law] expresses the fact that the law of the constitution is not the source of the rights of individuals but merely a recognition of what the American Declaration of Independence, steeped in the tradition of the English Common Law, called “Unalienable Rights”.
Just prior to promising that, on her watch, the rule of law will be paramount, the prime minister had sworn in the oath of office to uphold the Constitution and the laws of Jamaica. The prime minister and her Government could hardly do anything greater to make the rule of law paramount than simply to rigorously uphold and defend each and every provision of the new Charter of Rights and Freedoms for each and every citizen.
No political influence?
Her appointee to the office of attorney general, MP Evon St Patrick Atkinson, a highly experienced jurist, has the responsibility of advising the Government on the lawfulness of its proposed policies and actions. Mr Atkinson has given the assurance that politics will not influence his advice, which will be guided purely by the Constitution. It is my carefully considered layman’s view that the events which led to the Manatt-Coke commission of enquiry in which Atkinson co-starred for the political party now in Government, and which, more than any other case, brought him to national prominence, had substantial issues inimical to the rule of law attached to them, including the infringement of the constitutional rights of a citizen under foreign duress.
I really like the very simple way in which an online instructional document out of Canada, a sister Commonwealth country and former English colony, explains the lofty principles of the rule of law: “A cornerstone of our system of Government,” the document says, “is the rule of law. It means that everyone is subject to the law; that no one, no matter how important or powerful, is above the law ... [And no one is below the protection of the law either].
“None of these has any powers except those given to it by law: by the Constitution Act, or its amendments; by a law passed by Parliament; or by the common law of England, which we inherited, and which ... remains the basis of our constitutional law and our criminal law, and the civil law.
“If anyone were above the law [or below the protection of the law], none of our liberties would be safe.
“What keeps the various authorities from getting above the law, doing things the law forbids, exercising powers the law has not given them? The courts. If they try anything of the sort, they will be brought up short by the courts.”
This is an area where Jamaica has a significant rule-of-law problem and where the prime minister and her Government have some serious corrective work cut out for them in defence of the rule of law. The courts want to be above public criticism. They cannot be. For all kinds of reasons, the entire justice system is failing to prosecute too many people who believe they are above the law and failing to protect the rights of too many people falling below the protection of the law.
The rights and freedoms of many citizens have been abused by detentions without charge, denial of bail, incarceration without speedy trial, and inhumane conditions of custody both before and after conviction. Justice Lennox Campbell, in the name of the Constitution, has recently and properly thrown out an 11-year murder case for which the accused men had made 38 court appearances without trial.
We can add to these police abuses up to, and including, extrajudicial killings, the non-enforcement of many laws, and the severe difficulties and delays which citizens face in obtaining relief and redress for the infringement of their rights, whether by the state itself or by fellow citizens.
Infringing on citizens rights
The Supreme Court ruled last June on a motion brought before it by a pair of lawyers that that aspects of the crime bills dealing with bail, which had been passed by the Parliament to beef up the fight against crime, were unconstitutional.
To its credit, the PNP, in Opposition, had opposed aspects of the bill on human rights and constitutional grounds. Now in Government and committed to the paramountcy of the rule of law, its Government must make it easier for challenges to be mounted in the Supreme Court to decisions of the legislature and of the executive.
Several laws of Jamaica, particularly in the anti-corruption domain, have reversed the sacrosanct common-law principles of being innocent until proven guilty and of the burden of proof resting with the accuser, not the accused.
Bruce Golding, while prime minister, publicly acknowledged this, but justified its necessity. Not every law is lawful as far as conformity to the superior principle of the rule of law is concerned.
But Jamaica has much to be proud of in the realm of the rule of law, despite fixable shortcomings. Five years into Independence, a founding father and the country’s greatest legal luminary, Norman Manley, delivered an important speech as guest of the Philadelphia Bar Association in 1967.
Manley opened his address saying, “I will talk to you a little about the rule of law as it has contributed in my country to our emergence as a nation of stability with a great potential for preserving the forms and spirit of democratic society.”
Manley went on to say: “Any country that can maintain by force of developed public opinion confidence in, and respect for, and a determination to maintain, the rule of law, is safe from the extremes of dictatorship – is safe from all those hysterical and unreal fears that lead to the distortions of prejudice which erupt in conduct that itself is a denial of any civilised maintenance of the rule of law.”
Today is Martin Luther King Day (celebrated tomorrow as a public holiday) in the United States. King and Manley travelled together on the same flight to Ghana’s independence celebrations in 1957. They exchanged correspondence. And Norman Manley recalled, in tribute to Martin Luther King after his assassination, King’s declaration of how much he felt like a real human being and a man in Jamaica when he visited. His own country, Declaration of Independence, Constitution, and mouthed adherence to the rule of law notwithstanding, was in the throes of the civil-rights movement led by King himself seeking equality and justice for blacks and other minorities.
■ Martin Henry is a communication specialist. Email feedback to columns@gleanerjm.com and medhen@gmail.com.
Britain does not have a written constitution, which is not to say it does not have a constitution. Britain is the home of constitutional government, and we have inherited that tradition as a cornerstone of our legal culture. Culture Minister Lisa Hanna must bear in mind the European contribution to our culture and heritage through language, institutions and practice, the law being by no means the least of the lot.
It’s a fair guess that the majority of our elected representatives have no real knowledge of the written Jamaican Constitution much less of its historical and legal philosophical origins. Prime Minister Portia Simpson Miller wisely included in her first Cabinet meeting last Monday a seminar on the operations of Cabinet in the Government of Jamaica. Similar awareness building should be done for parliamentarians on matters such as the role of Parliament and parliamentarians, and the Jamaican Constitution and constitutional government – and, of course, on the rule of law.
Dicey opens his chapter on ‘The Rule of Law: Its Nature and General Applications’ with the observation that: “Two features have at all times, since the Norman conquest [1066 AD], characterised the political institutions of England. The first of these is the – undisputed supremacy throughout the whole country of the central government.”
The rise of the garrisons in our political culture, or as the last prime minister chose to relabel them, ‘zones of political exclusion’, has ended up challenging the supreme authority of the government of the Jamaican state over the whole country. The Tivoli Gardens clash in May 2010 between armed paramilitaries defending the community leader against the armed forces of the state seeking to execute a warrant for his arrest made this very obvious in deadly fashion.
Supremacy of law
The second feature of the political institutions of England, according to Dicey, “and which is closely connected to the first, is the rule or supremacy of law. That ‘rule of law’ ... which forms a fundamental principle of the constitution has three meanings, or may be regarded from three different points of view,” Dicey explains:
First, “[the rue of law] means ... the absolute supremacy or predominance of regular law, as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government.”
Second, “It means ... equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. [It] excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals.”
Third, [the rule of law] expresses the fact that the law of the constitution is not the source of the rights of individuals but merely a recognition of what the American Declaration of Independence, steeped in the tradition of the English Common Law, called “Unalienable Rights”.
Just prior to promising that, on her watch, the rule of law will be paramount, the prime minister had sworn in the oath of office to uphold the Constitution and the laws of Jamaica. The prime minister and her Government could hardly do anything greater to make the rule of law paramount than simply to rigorously uphold and defend each and every provision of the new Charter of Rights and Freedoms for each and every citizen.
No political influence?
Her appointee to the office of attorney general, MP Evon St Patrick Atkinson, a highly experienced jurist, has the responsibility of advising the Government on the lawfulness of its proposed policies and actions. Mr Atkinson has given the assurance that politics will not influence his advice, which will be guided purely by the Constitution. It is my carefully considered layman’s view that the events which led to the Manatt-Coke commission of enquiry in which Atkinson co-starred for the political party now in Government, and which, more than any other case, brought him to national prominence, had substantial issues inimical to the rule of law attached to them, including the infringement of the constitutional rights of a citizen under foreign duress.
I really like the very simple way in which an online instructional document out of Canada, a sister Commonwealth country and former English colony, explains the lofty principles of the rule of law: “A cornerstone of our system of Government,” the document says, “is the rule of law. It means that everyone is subject to the law; that no one, no matter how important or powerful, is above the law ... [And no one is below the protection of the law either].
“None of these has any powers except those given to it by law: by the Constitution Act, or its amendments; by a law passed by Parliament; or by the common law of England, which we inherited, and which ... remains the basis of our constitutional law and our criminal law, and the civil law.
“If anyone were above the law [or below the protection of the law], none of our liberties would be safe.
“What keeps the various authorities from getting above the law, doing things the law forbids, exercising powers the law has not given them? The courts. If they try anything of the sort, they will be brought up short by the courts.”
This is an area where Jamaica has a significant rule-of-law problem and where the prime minister and her Government have some serious corrective work cut out for them in defence of the rule of law. The courts want to be above public criticism. They cannot be. For all kinds of reasons, the entire justice system is failing to prosecute too many people who believe they are above the law and failing to protect the rights of too many people falling below the protection of the law.
The rights and freedoms of many citizens have been abused by detentions without charge, denial of bail, incarceration without speedy trial, and inhumane conditions of custody both before and after conviction. Justice Lennox Campbell, in the name of the Constitution, has recently and properly thrown out an 11-year murder case for which the accused men had made 38 court appearances without trial.
We can add to these police abuses up to, and including, extrajudicial killings, the non-enforcement of many laws, and the severe difficulties and delays which citizens face in obtaining relief and redress for the infringement of their rights, whether by the state itself or by fellow citizens.
Infringing on citizens rights
The Supreme Court ruled last June on a motion brought before it by a pair of lawyers that that aspects of the crime bills dealing with bail, which had been passed by the Parliament to beef up the fight against crime, were unconstitutional.
To its credit, the PNP, in Opposition, had opposed aspects of the bill on human rights and constitutional grounds. Now in Government and committed to the paramountcy of the rule of law, its Government must make it easier for challenges to be mounted in the Supreme Court to decisions of the legislature and of the executive.
Several laws of Jamaica, particularly in the anti-corruption domain, have reversed the sacrosanct common-law principles of being innocent until proven guilty and of the burden of proof resting with the accuser, not the accused.
Bruce Golding, while prime minister, publicly acknowledged this, but justified its necessity. Not every law is lawful as far as conformity to the superior principle of the rule of law is concerned.
But Jamaica has much to be proud of in the realm of the rule of law, despite fixable shortcomings. Five years into Independence, a founding father and the country’s greatest legal luminary, Norman Manley, delivered an important speech as guest of the Philadelphia Bar Association in 1967.
Manley opened his address saying, “I will talk to you a little about the rule of law as it has contributed in my country to our emergence as a nation of stability with a great potential for preserving the forms and spirit of democratic society.”
Manley went on to say: “Any country that can maintain by force of developed public opinion confidence in, and respect for, and a determination to maintain, the rule of law, is safe from the extremes of dictatorship – is safe from all those hysterical and unreal fears that lead to the distortions of prejudice which erupt in conduct that itself is a denial of any civilised maintenance of the rule of law.”
Today is Martin Luther King Day (celebrated tomorrow as a public holiday) in the United States. King and Manley travelled together on the same flight to Ghana’s independence celebrations in 1957. They exchanged correspondence. And Norman Manley recalled, in tribute to Martin Luther King after his assassination, King’s declaration of how much he felt like a real human being and a man in Jamaica when he visited. His own country, Declaration of Independence, Constitution, and mouthed adherence to the rule of law notwithstanding, was in the throes of the civil-rights movement led by King himself seeking equality and justice for blacks and other minorities.
■ Martin Henry is a communication specialist. Email feedback to columns@gleanerjm.com and medhen@gmail.com.