Jamaica's new charter

The Gleaner has encouraged and invited commentary on the new Charter of Fundamental Rights and Freedoms. This has to be seen as a developmental initiative on the part of Jamaica's oldest newspaper, for knowledge of, and adherence to, its provisions and its spirit and intendment constituted the essential raison d'etre for the development of the document.

It is a historic document in the sense that it is meant to form the basis of the contract which will guide the relationship between those who govern and those who are governed in Jamaica for the foreseeable future. It is the heart of a pledge by which the officials and functionaries of the State, of the one part, agree to protect the rights that are enshrined therein, and the citizens and all who happen to be in Jamaica, of the other part, agree that they will obey the laws of the land.

In that sense, every bill (or charter) of rights is recognised as historic documents: they are agreements which seal the framework and the terms for the critical role that they must play in developing our form of democratic government subject to the rule of law. And none more so than the foundation stone of all such documents - Magna Carta - which, as we shall see, has had the most powerful influence on the constitutional developments of those countries, such as Jamaica, that have conventional, written, entrenched constitutions.

There is yet another sense in which Jamaica's new charter is an historic document: it represents the first fulsome expression of legislative approval for the reform of our Independence constitutional arrangements. It is true that we had moved, during the 1990s, to rationalise the entitlements for Jamaican citizenship, but it must be agreed that this new Chapter III of our Constitution takes pride of place in that regard.

The timely reform of our Constitution was foreseen by Norman Washington Manley, the architect of the independence document. He was not comfortable with the human rights being stated "in broad, sweeping and, possibly, noble terms" and then "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 where are the exceptions?"

We will, therefore, also closely examine his contribution in the House of Representatives on Tuesday, January 23, 1962 at Public Business, Item No. 1: "The premier to move - Resolved that the House does consider and approve a report of the committees of the legislature to prepare proposals for a Constitution to take effect on Independence".

It is also generally agreed that the agenda for constitutional reform was placed firmly on the table for public discussion by Michael Manley, as prime minister, during the decade of the seventies, on the day that the four sevens clashed. On that day, at Stony Gut, St Thomas, the birthplace of National Hero Paul Bogle, Michael Manley trumpeted the appropriateness of Jamaica ceasing to have a monarchical system of government and becoming a republic within the Commonwealth.

He sought to make the link between "allegiance" to a foreign monarch and a denial of selfhood and sovereignty.

discontinue appeals

It is not surprising, therefore, that soon after his second coming as prime minister, the words of the pledge in the Oath of Allegiance were changed to "be faithful and bear true allegiance to Jamaica". What he had to say at Stony Gut should, therefore, be recalled.

During the regime of the 1980s, nothing was heard on matters relating to constitutional reform, until in the winter of the administration, in 1987, when the Cabinet, under the leadership of Prime Minister Edward Seaga, and including the present prime minister, decided that the time had come for Jamaica to discontinue appeals to the Judicial Committee of the Privy Council and for the establishment of a Caribbean Court of Appeal.

The then prime minister dispatched his attorney general, Oswald Harding, to a meeting of CARICOM attorneys general, with that mandate of the Cabinet, and Jamaica's attorney general faithfully carried out the mandate. The outrageous reneging on that Cabinet decision by the Jamaica Labour Party and its rebellious attitude of finding no room for cooperation and consensus with the previous administration on moving forward the process of reform cannot be ignored, if the historic sense of the development of Jamaica's new charter is to be properly understood.

And so, the People's National
Party did reassume the reins of power in 1989, and this heralded a process whereby all future People's National Party election manifestos would address the party's stance in pushing forward the constitutional reform agenda.

By mid-1995, the Parliament was placed in a position to debate and accept wide-ranging recommendations contained in a report from a Joint Select Committee on Constitutional and Electoral Reform, chaired by David Coore, the then attorney general, concerning the reform of our constitution. This was after two constitutional commissions, under the chairmanship of the late Justice James Kerr and Dr Lloyd Barnett, had conducted widespread discussions across Jamaica, relating to the reform agenda.

Prime Minister Michael Manley and his successor, P.J. Patterson, had, therefore, set the reform agenda firmly on course. The areas for reform were expansive, but there were three specific items which were required to be addressed with a view to patriating our Constitution arrangements.

The first was severing the umbilical cord from the monarchy and the adoption of a republican form of government, with our own indigenous president as head of state. This item, as we shall see, would come to represent a roadblock in the path of the reform process. The recommendation of the Coore-led Joint Select Committee was roundly rejected by Bruce Golding, who had been a member of that select committee, had presented no minority report, and proceeded to give that rejection as a reason for leaving the Jamaica Labour Party to form a new political party, the National Democratic Movement.

deliberations

The second specific item to be addressed was the development of a new Charter of Rights to replace the Fundamental Rights and Freedoms provisions in Chapter III of the Independence Constitution. The road towards achieving that goal was paved by the deliberations and report of the Barnett Commission and accepted by Parliament in 1995, when the recommendations of the Coore Committee were debated. Roadblocks were placed in the way to reaching that goal, by the then Opposition declaring itself to be in an "oppose, oppose, oppose" mode.

The third specific item to be addressed, if we were finally to patriate our Constitution, was for Jamaica to de-link from the Judicial Committee of the Privy Council and have the Caribbean Court of Justice as our final court of appeal. This item, we recall, had gained Cabinet approval in the late 1980s, and had, indeed, been a decision of a CARICOM Heads of Government Meeting, right here in Kingston, under the chairmanship of Jamaica's then prime minister, Hugh Lawson Shearer, from as far back as 1970.

We will come to discuss how these three specific items are inextricably intertwined, but for the moment, it is necessary to make mention of another inescapable issue which must be addressed with the utmost urgency if Jamaica's new charter is to have real meaning in the governance process in a democratic society subject to the rule of law.

We recall that our Constitution, and in particular, adherence to the protection of our fundamental rights and freedoms on the part of the Government, represent a contract between the State and the citizen. To have real meaning for the citizen, therefore, there is the requirement that there be swift and meaningful sanctions to be imposed on those high officials and functionaries in the service of the public who choose to abrogate those fundamental rights.

The recommendation that was made by the Kerr Commission and accepted by Parliament was that a process of impeachment be firmly established within our constitutional arrangements. The passage of the Bill entitled An Act to Amend the Constitution of Jamaica to provide for a Charter of Fundamental Rights and Freedoms will not likely come to mean much to the citizen if government ministers and officials can feel free to renege on their obligations contained in the contract.

The very season within which the bill received final legislative approval should serve as a salutary reminder of the inescapable requirement for swift, robust and meaningful sanctions in the form of a process of impeachment. As the lawyers would say, such a process is a sine qua non for trust and confidence to come to be reposed in what the terms and conditions of Jamaica's new charter are aimed at, in the interest of the development of our people.

It is considered necessary, therefore, for a series of articles to be presented in response to The Gleaner's invitation concerning the development of Jamaica's new charter. There is, of course, much food for thought on the subject matter; but in my view, for a proper appreciation of its meaning and relevance to Jamaica's development, we must begin with the foundation agreement which was forged between King and subject at Runnymede, near London, England, in the form of Magna Carta, almost 800 years ago.

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