Can we trust our legislators with our rights? (Pt 1)

Frank Phipps, Contributor

THERE WAS a time in Jamaica when there was no guarantee for the protection of individual rights and freedoms; it was a case of 'the government gives and the government takes away protection'. After 50 years of independence and, with an amendment to the Constitution for a Charter of Rights, it is fitting to look back and see what has changed.

The 1962 Jamaica Constitution with the protection for fundamental rights and freedom provides, at Chapter 111, that those rights and freedoms be subject to respect for the rights and freedoms of others and the public interest; and there's the rub: the demands for the public interest will often impinge upon the rights and freedoms of the individual. There will then be a challenge for reconciling the conflict between those rights that must be respected and the interest of the community at large that must be safeguarded. The legislative authority to make laws for the peace, order and good government of the country must, therefore, include measures for maintaining a fair balance between the public interest and the rights of the individual. The extent of legislative authority to alter the fundamental rights of the individual is to be determined by what is in the 1962 Constitution for maintaining the balance.

The United Kingdom (UK) Parliament passed the Jamaica Independence Act for the transfer of Legislative Powers from the UK Parliament to the Parliament established in the Jamaica Constitution by the Order in Council 1962. The first schedule to the Act reads,

"Nothing in this Act shall confer on the legislature of Jamaica any power to repeal, amend or modify the constitutional provisions otherwise than in such manner as may be provided for in those provisions."

The caveat on legislative authority makes it clear that the transfer of power to a Parliament in Jamaica was total but not absolute.

Altering fundamental rights

Section 49 of the constitution provides a special procedure for laws that alter the fundamental rights and freedoms declared at Chapter 111 where "alter" is widely defined at 49(9)(b) to include repeal, amend etc; otherwise, the legislation is void for being inconsistent with the Constitution (section 2). The procedure requires two periods of at least three months each to elapse in both Houses and, in addition, not less than a two-thirds majority vote of all the members of each House for a Bill to become law. In the event of a failure to get the stipulated two-thirds majority in the Senate, subsection 5 requires the Bill to be referred to the people of Jamaica for a decision. The procedure ensures that final authority to alter the provisions for the individual's rights and freedoms should rest with the people of Jamaica and not with the Parliament. This is what the Charter of Rights was enacted to enforce after it had been undermined by our legislators during the fifty years of independence, when several laws were passed by a simple majority vote to take away the protection of the fundamental rights at Chapter 111.

The critical question is whether the procedure adopted for enacting the respective legislation complied with what is laid down in the Constitution at section 49 for altering the provisions at Chapter 111.

Extradition

Experience teaches that Jamaica is not an island where crime is concerned and we are reminded in the United States of America v. Corona, 48 C.C.C. (3d) 193 at 215 the Supreme Court of Canada: The investigation, prosecution and suppression of crime for the protection of the citizen and the maintenance of peace and public order is an important goal of all organised societies. The pursuit of that goal cannot realistically be confined within national boundaries. (Kimberly Prost the Department of Justice, Canada, 1998).

The Extradition Act 1991 was passed to permit the transfer of persons from Jamaica to be tried or sentenced in a foreign country for specified offences, or a transfer to Jamaica for a similar reason. The Act removed the provision at section 16 (1) of the Constitution that guaranteed the protection of Freedom of Movement, which includes immunity from expulsion from Jamaica.

The legality of the Act was questioned in PC Appeal 2 of 2007, Trevor Forbes v DPP and another [2007] UKPC 61, delivered 8 Nov. 2007, where the Board said,

However, section 16(3) says:

'nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision ...'

'And then there are a number of paragraphs of which the relevant one is para 16(3) (e):

e. 'for the removal of a person from Jamaica to be tried outside Jamaica for a criminal offence ...'

It appears to the Board that the Extradition Act 1991 is a law which makes provision for the removal of a person from Jamaica to be tried outside Jamaica for a criminal offence and, therefore, falls within the terms of section 16(3)(e).

Consequently, it is not inconsistent with section 16, and that appears to the Board to be the end of the matter.

This decision confirmed the legality of the procedure of a simple majority vote by the legislature to amend the constitutional provision for the protection of immunity from expulsion from Jamaica.

Interception of communication

The next example is the Interception of Communication Act 2005, that alters the provision for Freedom of Expression at section 22(1) of the Constitution:

Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, and, for the purposes of this section, the said freedoms include the freedom to hold opinions and to receive and impart ideas and information without interference, and freedom of interference from his correspondence and other means of communication.

Subsection 2 of the section provides the authority for a law to make exceptions to the protection but no exception is invoked in the Act, as was done for the 1963 amendment to the Criminal Justice Amendment Act - probably the first post-independence incursion on a constitutional protection.

The irregular assortment of the multifarious limits at subsection 2 for exceptions to the protection is mind-boggling:

(a) for a law which is reasonably required to alter the protection (i) in the public interest or (ii) for the purposes of protecting the reputations of others, confidential communication, the authority of the courts or regulating the means of communication or entertainment;

(b) for imposing restrictions on public officials.

Where the Act does not specify for what purpose the law is reasonably required to alter the constitutional provision, it is open to abuse and runs uncomfortably close to asserting parliamentary sovereignty over our rights. The legislation can be used for nefarious purposes as exceptions to the protection for freedom of expression; for example, to interfere with persons holding minority opinions, or persons who impart unpopular information in the press or by other means of communication. This exception involves a constitutional protection, not an executive safeguard. Without specifying the purpose, the Act should best have been enacted by the procedure at section 49 in order to have the imprimatur of the Constitution.

One of the grounds of appeal in Donald Phipps v. R [2010] JMCA Crim. 48 was the illegality of the Interception of Communication Act but the Court of Appeal applied the decision in R v Forbes for an exception to deny that challenge. Leave to appeal to the Privy Council was granted but the constitutionality of the legislation was not pursued there. See Phipps v DPP & AG [2012] UKPC 24 delivered 27/6/12. In the result, Act had effectively removed the protection for freedom of expression.

To be continued.

Frank Phipps Q.C., is an attorney-at-law.