Editorial | Test constitutionality of retroactive law

KD Knight's recommendation that the Government compensate operators of public passenger vehicles, who, for a quarter of a century, paid fees that the Transport Authority (TA) had no legal authority to impose, is a commendable, and perhaps, moral position. However, it would probably be of greater value, not only to the persons directly affected, if Mr Knight volunteered, pro bono, his personal time and expertise, and, if possible, those of his law firm, to challenge the constitutionality of the law, approved by the Senate of which he is a member, indemnifying the government against legal action for damages.

To be clear, public passenger transport operators, especially those who own and, or drive buses and route taxis, is not a group to which this newspaper is naturally inclined. They run a nasty business. Mostly, they ignore the road code, race each other between bus stops in competition for fares and, by their abhorrence of order, put the lives of other motorists and commuters at risk. But, sometimes you overlook your dislikes and prejudices in protection of large principles, which, in this case, is ensuring that our Government is diligent in matters of good governance and the preservation of constitutionally-guaranteed rights and freedoms.

Under the Transport Authority Act, the minister has the power to establish regulations governing the functioning of the agency, including at section 18(1)(b), for "prescribing fees". But, between December 1989 and December 2015, or 26 years, successive transport ministers, across administrations, including ones in which Mr Knight served, failed to establish, as required by law, these regulations.

Yet, the Transport Authority imposed fees for various services, which operators were required to pay. In thousands of cases, it is believed, people were prosecuted for failing to meet the "obligation" or had their vehicles impounded, for which retrieval required a fine. All of those impositions were illegal.

That is why the Government took to Parliament the legislation to declare the actions "to have been validly, properly and lawfully done to all intents and purposes and with the effect of them being authorised by the principal Act". In the event all persons "liable to be legally proceeded against", including "the Queen's Most Gracious Majesty, Her Heirs and Successors" were, by this law, ostensibly "freed, acquitted, discharged and indemnified".

Unlike America's, Jamaica's Constitution doesn't expressly prohibit ex post facto law, and we expect Government lawyers to argue that the supremacy of Parliament allows it that right of action if it is demonstrably justified for an operation of a free and democratic society. The Government hasn't, thus far, made that case, or offered any intellectual defence for its action, although we presume it will make an economic case.

What we believe to be unassailable, however, is that people lost property, to wit money, without the provision of law that, as is required at section 15 (1) (b) of the Constitution, "prescribes the principles on which compensation therefore is to be determined and given".

In the event, the persons who claim a right over property of which he has been dispossessed is entitled "a right of access to a court" in an attempt to establish and enforce his presumed interest and to seek compensation. Those rights are short-circuited by last week's law, whose validity can now only be tested in the Constitutional Court.

That is a course of action we recommend, not out of wish to have an economic penalty imposed on the Government, but rather to insist on a purposeful approach to governance and to seek the court's guidance on the ambit, and circumstances, within which governments can resort to retroactive laws.