Editorial | Beady eye on constitutional reform

The larger point made by this newspaper in these columns on Saturday bears repeating. Jamaicans must watch carefully the proposal, articulated by the legal and constitutional affairs minister, Marlene Malahoo Forte, for the overhaul of Jamaica’s Constitution, especially in relation to the document’s Charter of Fundamental Rights and Freedoms.

As we alluded to previously, while the current focus seems to be on narrowing the base from which the courts can provide bail to accused persons, the issues are fundamentally more far-reaching, with the potential weakening of the foundation upon which our liberal democracy rests. Further, the messenger of the reforms, Minister Malahoo Forte, deepens our disquiet. It was she who, as the attorney general, argued in 2016 that “fundamental rights and freedoms guaranteed to Jamaicans may have to be abrogated, abridged, or infringed” in the fight against crime. That view appears to have become the ingrained philosophy of the security establishment, and was publicly embraced a year ago by the then chief of defence staff, Lieutenant General Rocky Meade, in his lament that Jamaica did not “have an appetite to forgo, temporarily, some of our rights, in order to secure the right to life”.

Since its promulgation in 1962, Jamaica’s Constitution has been through several additions and deletions. None, however, involved deeply entrenched clauses, so as to require the public’s endorsement via referenda. The most fundamental of these changes was the 2011 insertion of the Charter, a clearer elaboration of the rights and freedoms enjoyed by citizens, and which cannot be abridged “save only as may be demonstrably justified in a free and democratic society”.

EXTRICATING FROM MONARCHY

More recently, the big constitutional question has been about Jamaica extricating itself from the monarchy and establishing the country as a republic. Queen Elizabeth II would no longer be our head of state. On this, there is political consensus and national support. Indeed, when the Duke of Cambridge visited Jamaica in March, Prime Minister Andrew Holness advised him that Jamaica is “moving on”. The only issue to be settled on this matter at a philosophical level is how the president would be elected – whether with both Houses of Parliament sitting jointly or separately.

Therefore, when Ms Malahoo Forte addressed Parliament last week, she was expected to set out a time frame for the tabling and debate of the relevant bills and, after their passage, the referendum. Instead, she announced “a thorough and comprehensive review of the 1962 Constitution, including the 2011 Charter of Fundamental Rights and Freedoms, as well as recommendations for reforms made by various constitutional reform commissions and committees in the past, to ultimately implement an ambitious reform agenda, settled by consensus”.

That, at best, is a years-long exercise. Therefore, the issues should be decoupled. Legislative and other action to remove the monarchy should begin immediately, symbolically starting the process in the jubilee year of Jamaica’s Independence and, if possible, concluding it before it ends.

On the broader questions of constitutional reform, Jamaicans should pay close attention to the proceedings, watching for deals that may be struck by politicians, despite their current posture at this time. But, with respect to Ms Malahoo Forte and the bail question, there is an important context to be noted.

Jamaica, admittedly, faces a crisis of crime, especially of homicides. More than 1,400 murders a year places the island near the top of the global league table for per capita homicides, at near 50 per 100,000. In recent years, the Government’s preferred crime-fighting tool was the declaration of states of public emergency (SOE), which give the security forces extensive powers of search and detention. However, in September 2020 a court ruled to be unconstitutional. Among the court’s findings was that the authority of the minister to determine who or how persons were detained infringed upon the separation of powers.

Ms Malahoo Forte has been an obvious member of the ‘drastic measures’ wing of the policy discourse.

RULED UNCONSTITUTIONAL

Recently, the Government has touted changes to the law covering bail aimed, obviously, at responding to the complaints by the police that accused persons who receive bail often commit other crimes, including intimidating, or killing, witnesses. While the specifics of the amendments have not been disclosed, Ms Malahoo Forte’s declaration last week that “if yuh on murder charge, you cannot be at large, and, if yuh on gun charge, yuh cannot be at large” suggests an intent similar to what was attempted in a 2010 legislation that was ultimately ruled unconstitutional.

Under those laws, the accused person had the burden of satisfying the court that bail should be granted, rather than the prosecution showing why bail should be denied. The prosecution was also given the right to appeal against the granting of bail. Further, for certain offences, an accused, if he or she had a previous conviction for that offence, could be held for up to 60 days, but would be brought to court at seven-day intervals to determine if the detention should continue. The court held that many of the provisions in the law offended constitutional rights to liberty, the presumption of innocence until proven guilty, and a fair hearing with reasonable time before a competent court.

As we noted on Saturday, Jamaica’s crime problem fuels anxieties which may cause citizens to accept the undermining of liberties. Often, the assumption is, you are insulated from the dangers of such actions – because of social status or wealth. That, however, is the case until you are not.

At the time of General Meade’s urged that people eschew their rights and freedoms and trust the goodwill of the state. We recall what happened in 1970s Argentina, when the military junta did the same thing. Then it started first disappearing radicals, then the political Left and criminals. Soon, it was everyone.

We do not claim that the same would be on the cards in Jamaica. But the principle remains. That is why any action to change Section 13 of the Constitution, the Charter of Fundamental Rights and Freedoms, requires our scrutiny.