The constitutional review process is said to be in its second phase, but it appears as though the Minister is guessing as she goes along. I say that not to be unkind but rather I am reflecting on the fact that we are now being told, after declarations to the contrary, that the issue of abolishing appeals to the Privy Council will be considered as part of the second phase. Of course, as an ardent supporter of abolishing appeals to the Privy Council, I am happy to hear that good common sense has prevailed or will prevail. It never made any sense to have removed the King as Head of State whilst maintaining appeals to His Majesty in Council.
However, I am still disappointed to have also heard the Minister of Constitutional Affairs, Marlene Malahoo-Fortemake two pronouncements on the May 17 2023, at a Town Hall meeting. The first is that she is considering lobbying His Majesty to consider lifting/waiving the visa requirement for those who are travelling to have their cases heard at the Privy Council. This is disgraceful and it reflects the supplicant levels that the Minister and by extension the government would stoop, just because they wish to hold on to some obsession with the Privy Council. Her idea is flawed on a few levels. Firstly, His Majesty does not, as a matter of constitutional convention, get involved in policy matters of his Ministers. Secondly, that would represent a significant breach of a centuries old convention that would undoubtedly cause embarrassment to at both Downing Street and St. James’s Place. The papers would have a field day if that were leaked, and you can just see the headlines in the right-wing British press “Jamaican Murder Convicts no Longer needs a visa to enter the UK”. That would be the end of both His Majesty and the PM.
Whither a Jamaican Final Court of Appeal
The second utterance from the Minister that has me worried is this idea that we should have a Jamaican Final Court of Appeal if we abolish appeals to the Privy Council. This fantasy was first mooted by former prime minister of Jamaica Bruce Golding and all indications are that it was never one that was meant to have been taken seriously beyond the rum bar. However, the Minister seemingly thinks it is one of the options that should be promoted as an alternative to appeals to the Privy Council. It is frankly intellectually dishonest to promote this as an option when we all know that Jamaican taxpayers are financing the Caribbean Court of Justice. Further, this fantasy notion (it must never be called an idea) unlike the Caribbean Court of Justice, which has been in operation for 18 years, has never had the support of a single member of Jamaica’s Judiciary. We have evidence of this in the form of utterances made by retired members (e.g. Justice Seymour Panton) of the Judiciary and listening closely to the statements made in speeches by the likes of the Chief Justice and the President of the Court of Appeal, it is quite clear to those who are sufficiently discerning, that they are anxiously awaiting the day when the Executive will clear the path for them to have open to them the option of being able to apply for higher Judicial office.
A constitutional review guide document
Rather interestingly since the Minister told the nation that phase two will also entail a consideration of abolishing appeals to the Privy Council, alongside the planned review of the Charter of Rights, we have not seen a follow-up document from her Ministry. This follow-up document should set out, for the public, the options, as she sees it. We have not seen any such document for one principal reason: she was making it up as she spoke. This renders her, in my view, as the Co-Chair of the Constitutional Reform Committee (CRC), rather dangerous- dangerous as no sensible policy on constitutional reform can emanate from a lack of critical thought. Dangerous because, as she did in the National Identification System (NIDS) court case, she is willing to flog a dead horse (having a Jamaican Final Court of Appeal) as long as doing so means that she gets to have a microphone in her hand and camera lens directed at her.
This therefore underscores the urgent necessity and obligation on the part of the PM to instruct his Minister to publish a “Constitutional Review Guide Document ” which provides real information to the citizens on not just what areas of reform will be considered at each phase, but each topic must be fully outlined. Citizens can be given this information which they can use to make up their minds as opposed to having a Minister literally making it up as she goes along. Further, this Guide Document should provide citizens with a bibliography of what is contained in the reading pack that is being used by the CRC. The technology does exist for this reading list to be hyperlinked so that citizens can read the documents that the members of the CRC are reading. We are not being allowed access to the deliberations, for reasons known only to the PM and the Minister, and this is undermining to the legitimacy of the CRC. Whilst this exercise in unnecessary secrecy (that’s what it is) continues, we keep hearing that the members are reading a great deal. Why not show us what they are reading?
The plan to review the Charter of Rights
I turn now to the issue of this plan to review the Charter of Rights which has only been in place since 2011- less than twenty years. The Minister in an interview with Former PM Bruce Golding informed the nation that the Charter is being reviewed because there is a need to so do. Of course, she did not clarify what this pressing need is though she gave the impression that the society is somehow clamouring for it.
This haphazard assault on the Charter is without a doubt being influenced by the fact that the government has had a number of its key legislations held to be unconstitutional by the Judiciary, following successful challenges. In this regard the State of Emergency measures and the NIDS Bill come to mind and of course there are others. The government thinks, as tyrants always do, that the best way to fight crime for example, is to water down and abridge the rights guaranteed by the Charter. This is wrong and we should push back on this fallacy. The Charter by introducing the obligation on the State to show that a right restricting measure or piece of legislation is proportionate to the objective being sought represents a progressive move which was hitherto absent from our jurisprudence, which once required the aggrieved party to demonstrate that there was a breach.
The government is busy gaslighting the Charter and the right to bail and in so doing is serving citizens the lie that the reason why it cannot for example, stem the tide on crime, is to do with the Charter of Rights. This is wrong and it discloses indolence on the part of this government as it plunges itself in the mistakes that other governments the world over have made: attacking rights unlawfully as they fight crime. The government can impose restrictions on the rights of citizens if to do so is deemed proportionate to the objective (prevention of crime) and several jurisdictions have used proportionate right restricting legislation to remove criminals from the streets. Most recently the Privy Council concluded that the mandatory minimum sentences are not unconstitutional. These are measures used without a need to water down the Charter. Further, I also think of the control orders that were used in the United Kingdom in its fight against terrorism. These control orders were found in the main to be lawful infringements on the right to free movement. There is too much lazy thinking emanating from both the Ministry of National Security and the Ministry of Constitutional and Legal Affairs and it is this laziness that has caused the Minister of Legal and Constitutional Affairs to be threatening to erode our guaranteed rights.
Charter compliant thinking in policy and law making
If there is to be any amendment to the Charter it is my view that what we should have is a provision requiring the Minister of Constitutional and Legal Affairs to report to Parliament via written statement, his/her satisfaction that a proposed Bill is compliant with the Charter of Rights. This has the potential, if done properly, to strengthen the scrutiny of a policy (before it becomes a Bill) at the time when it is being considered by the Cabinet, thus reducing the possibility of the Bill being challenged under section 19 of the Constitution. This takes place in Canada (and New Zealand) under the Department of Justice Act, and whilst Canada has not had a single such statement (the duty is to say if the Bill is inconsistent with the Charter) a 2016 case (Schmidt) has shed some light on how important that duty is in mainstreaming Charter compliant thinking in policy and law making. Such an approach ought to be the kind of review that the Minister is considering as it will reduce not just litigation risks (and costs) but importantly it has the potential of ensuring that those who are designing crime fighting policy do so in a manner that will achieve success without guessing whether the Bill will be struck down by the Judiciary. Tearing down the Charter is not necessary Minister.
Matondo K. Mukulu is a practising Barrister.