The challenge of the charter

Along Jamaica's journey on the Independence road, up to the passage of our new Charter of Fundamental Rights and Freedoms, there have been pivotal moments. I wish to recall one such moment.

In the 19th year after the experiment began in 1962, in December 1980, a new government assumed office. What I want to recall is the first act of the new head of government, and his first policy utterance.

His first act was to have the Cuban ambassador, Ulysses Estrada, declared persona non grata. Within the environment of the Cold War, such an act was easily explained and understood. The first words of policy, however, resonate to this day: bring in the dollars, no questions asked.

Such a declaration of policy, today, would be in direct conflict with the laws that prohibit any action based upon it, such as money-laundering legislation. It certainly would not have been compatible with the spirit and intendment of the Charter of Rights and what is justifiable in a free and democratic society.

In effect, it could never have been a common-sense policy option. Even so, that declaration of policy was, perhaps, not sufficiently challenged at the time. That was 31 years ago.

The minds of the generation of young Jamaicans of that time would come to be influenced and conditioned by that policy initiative of the administration of the day. And, what is more, the "acquisitive age", anchored on the axis developed by the Western philosophical approach of President Ronald Reagan, Chancellor Helmut Kohl and Prime Minister Margaret Thatcher, served to cement the idea far beyond the shores of Jamaica.

That is a distinct element of the corridor through which we have come during these near 50 years; it is a challenge to how we approach our new charter. The charter cannot be approached merely as a piece of legislation or a constitutional amendment that has been passed, and to be given the royal assent by His Excellency the Governor General, undoubtedly important as that might be.

Any such approach would cause us to miss the boat, once again. It has to be approached as a signpost for Jamaica on which is written: "Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes those rights." It is meant to be a governance game-changing instrument.

The new charter will have to contend with another part of the corridor through which we have come: that element within which the foundation unit of the well-ordered society - the family - became splintered and weakened. The migration phenomenon which led to the age of the barrel children gave rise to that part of the corridor.

We would do well to contemplate the connection between the traditional family unit and the protection and enjoyment of the rights, and responding to the responsibilities, inherent in the provisions of the new charter. One thing is certain: engrafting a "bring in the dollars, no questions asked" policy on to a society with such a dysfunctional foundation unit was a recipe for disaster.

no celebration

Charters or bills of rights assume a reliable basic unit of the society, within which protections are given and responsibilities are understood and acknowledged. There can be no celebration of the passage of our new charter, therefore, without a commitment of meaningful pursuit to refashion and re-create that foundation unit of any ordered societal existence.

Respect for the provisions of our new charter must also come to compel the reorganisation and reform of our justice system. The development of the new provisions has not merely followed the traditional vertical approach of the rights being a contract between State and citizen, with a pledge being given by the State to protect those rights. A wider compass has been employed.

In the new charter, "all persons are under a responsibility to respect and uphold the rights of others recognised in this chapter". In addition to the vertical approach, there is now a horizontal context to the provisions, which place a constitutional duty on every person within Jamaica not to infringe the fundamental rights to which other persons are entitled.

That responsibility is no less important than the right to which the citizen is entitled. So that, an early challenge to our understanding of the new charter is that the balance between the enjoyment and protection of rights, on the one hand, and the responsibilities that are owed to our fellow citizens, on the other, provides the foundation stone for the creation of the just society. It is the lens through which we should see ourselves and, at the same time, the principle on which we must ultimately expect to be judged.

The new charter, then, presents further challenges to the system of the administration of justice. Actions seeking redress for infringement of the rights could increase in number, and in the normal order of things, it is expected that constitutional actions must occupy a place of priority on the judicial calendar.

Backlog in the court system is, therefore, the enemy of the enjoyment of the rights enshrined in the Charter of Fundamental Rights and Freedoms. Failure on the part of the authorities to attack that clog in the system represents a breach of the responsibilities inherent in the provisions of the charter. And, that is a real and direct challenge to what its provisions are meant to accomplish.

The signpost provision of the new charter places a specific duty on the Parliament to "pass no law which infringes those rights". This means that the lawmakers cannot regard themselves as having fulfilled their duty without being satisfied that each piece of legislation is compatible with the charter.

The signpost also places a specific constitutional duty on members of the public service, in that "no organ of the State shall take any action which abrogates, abridges or infringes those rights". That duty is owed to all citizens, who are, in reality, the employers of the functionaries in the public service. And those functionaries wield immense power within the society. Such power must, therefore, be exercised within constitutional boundaries, and our new charter sets the limits of those boundaries.

new influences

The signpost provision has also influenced a new way in which the declaration of periods of public emergency is to be approached and managed. This is an element of the corridor through which we have come on our Independence journey and which has caused unease to not a few members of our society. Parliament is now given far more meaningful oversight powers concerning the process.

A proclamation of a period of public emergency - in which organs of the State enjoy extraordinary powers - may now be declared by the governor general to last only for 14 days, instead of the one-month duration provided for in the Independence Constitution.

Lessons along the journey have also influenced the manner in which any extension of that period is to be put in place and managed. In the new charter, there is the requirement of a two-thirds majority vote in each House of Parliament, thereby importing the signal element of agreement between Government and Opposition. This replaces the provision in which the requirement was for a majority vote of all the members of each House (31 and 11 at present). In that scenario, the Government side held all the keys.

Further, any extension voted by Parliament can only be for a period not exceeding three months, instead of the 12-month period provided for in the Independence Constitution. And, the proclamation of a period of public emergency can only be revoked by a two-thirds majority vote in each House, thereby again, seeking after consensus.

paradigm shift

Throughout these near 49 years on our Independence journey, there has been no shortage of challenges to the development of our democracy and our moves towards the creation of the just society. Our new Charter of Fundamental Rights and Freedoms is meant to present a paradigm shift in the way we govern ourselves and the respect that each citizen must have for the entitlements of others.

The approach of the Canadians to respect for the provisions of their charter is a ready example of how we may proceed along the road in the direction that the signpost points us. This represents a first real and substantial initiative in the process of the reform of our Independence Constitution.

Perhaps, there was no more game-changing place to begin. For, our new charter is based on the understanding that a clear acceptance that the pursuit of the rights to which we are constitutionally entitled must be coupled with an assumption of responsibilities to other persons in the society. That is a strong element of the armour that we must put on in the fight for the attainment of social justice in a democratic society.

It is founded on Article 29(1) of the Universal Declaration of Human Rights: "Everyone has duties to the community in which alone the free and full development of his personality is possible." And that is the most far-reaching challenge of our new Charter of Fundamental Rights and Freedoms.

A.J. Nicholson is opposition spokesman on foreign affairs and foreign trade. Email feedback to columns@gleanerjm.com.