Editor’s Note: Part I of this series was published on May 22. The piece was titled The Constitutional Review Process: Is the minister giving false hope? You may read it here http://leadershipreimagination.com/uncategorized/the-constitutional-review-process-is-the-minister-giving-false-hope/
I am not a historian but the political history of the United States of America, from the period of the war of independence straight to the civil war and reconstruction does fascinate me immensely. The leading figures, and of course, the unique role played by the enslaved, offer parallels to the kind of leadership that we are burdened with in Jamaica at this time in our on-going experiment with nation building.
The Drafting of the American Constitution
In terms of the characters, I wish to single out the likes of Alexander Hamilton, George Washington and Fredrick Douglass. In the case of Hamilton, the man credited with establishing the forerunner to America’s Central Bank, it is to be noted that he was the author of 51 of the 85 instalments to the Federalists Papers. The contributors to the Federalists Papers (James Madison, John Jay and Alexander Hamilton) were really the defenders of the draft constitution that emanated from the Federal Convention which took place in Philadelphia between May 25 and September 17, 1787. The unintended consequence of that Convention was the drafting of the American Constitution and the abolition of the Articles of Confederation. Ultimately the States ratified the Constitution with Hamilton being one of the delegates for New York. Thus by September 17, 1787 the Federalists Papers were first published after the Convention and served to drum up public support for the Federalists’ case in a manner that would leave readers very certain about how the Union would be governed as distinct from the independent confederation of States that were in existence up to the ratification of the new Constitution.
The need for a rationale for the revision of the Charter of Rights
My objective is not of course to delve into the subject matter of the essays that were published but rather I wish to use that constitutionally significant moment to remind the Chair (we have not seen or heard a single word from the other Chair -Rocky Meade) that she (Marlene Malahoo-Forte) has an inherent duty as the Minister responsible to set out her thoughts on the various sections of the constitution that she and the prime minister (PM) are telling us are in need of reform. For example, we are being told that the Charter of Rights (section 13) is to be revised but we have not been told which of our rights will be expanded or abridged. We have not been told the reason why there is this need to revise the Charter of Rights when we have had less than a generation with it serving us. The Supreme Court had its first real look at the Charter in the case of Julian Robinson v Attorney General and following that seminal case, there have been a few more cases but certainly it would be an exaggeration to suggest or say that we have had all the rights under the Charter considered by the Judiciary. We do not know, for example, in what way the Charter of Rights has altered the compulsory acquisition by the State of the property owned by private individuals, and we are yet to see how the Charter impacts on the right to family life or class discrimination.
In light of this rather limited consideration by the Supreme Court of the Charter, the Minister and by extension the PM, are obliged to produce a document that sets out the thinking of the government on this most fundamental issue. This will undoubtedly help us to understand what is driving this impetus in the context of a constitutional review process that is being conducted with a high degree of both secrecy and obfuscation. Canada has had a comparatively long history of having a Charter of Rights (since 1982) and of course its predecessor The Bill of Rights (1960), and its Supreme Court, certainly during the Harper years (2006-2015) has had numerous opportunities to consider the Charter and how it impacts on various aspects of Canadian life. Thus, we have seen consideration of the mandatory minimum sentences for violent crime, legislation designed to fight the illicit drug trade and a consideration of the legislation which was held to violate the rights of sex workers. An examination of the responses by the Canadian government to the rights affirming decisions of the Supreme Court will reveal that the response was certainly not to amend and water down the Charter rights, but rather it went back to the drawing board on each occasion and through rigorous debate, it came up with legislation that was compliant having regard to the guidance offered by the Judiciary.
This is to be contrasted with the response of the Holness government: its initial response to the National Identification System (NIDS) decision was to lambast the Judiciary and threaten appeal. A responsible government would have learned the first lesson: acknowledge that the flawed legal argument advanced by the then Attorney General (who is now the Minister of Legal and Constitutional Affairs) disclosed a failure to appreciate how the Charter had altered the human rights jurisprudence in Jamaica. Secondly, had it had the sense to put the Bill to a Joint Select Committee there would not have been a wasting of taxpayer’s money and scarce court time. We saw the same knee jerk reaction by the government, and its surrogates, when its approach to the State of Emergency was found wanting by the High Court: the play book was consulted, and we were told that the Judiciary is using the Charter to hamper the government’s crime fighting strategy. Those who knew better, thankfully fought back with sound legal arguments: be imaginative and stop attacking the Bench and the Charter. Seemingly unable to employ creative imagination we are now being told that the Charter needs to be amended.
The importance of a Constitutional Guide Document
Another significant reason why the nation should be provided with a Constitutional Guide Document is this: the Charter is not a deeply entrenched provision of the constitution and thus the general public will not have a direct say on the reform proposals as amending the Charter does not require a referendum. The rights guaranteed in the Charter are not absolute but given the centrality of these rights, no government should be allowed to water down these rights unless the proposals are set out for full consideration and debate in the public sphere. Of course, and one cannot be misleading, any proposed change to the Charter will be put to a parliamentary vote and the Opposition in the Senate, with its blocking third, will be uniquely positioned to derail any plans that seeks to cut down the Charter, to get to the Devil.
Ultimately this government will have no excuse if it fails to conduct a review process that draws from the examples of other countries that have successfully amended their constitutions as there are numerous historical precedents from which it can select if it is serious about amending the constitution in a participatory way. However, as we have seen from the Town Hall meetings, hubris is driving this process. The people and the Opposition will reject any half-baked amendment or any that seeks to water down the rights of the citizens. This would be unfortunate given that there is a consensus that our colonial constitution needs to be repatriated. The people, however, want an amendment process that is transparent and participatory.
Matondo K. Mukulu is a practising Barrister.