THE JOINT Select Committee of Parliament examining the Charter of Rights bill could determine as early as this Thursday against whom citizens can pursue breaches of their constitutional rights.
While the draft bill advocates that citizens can pursue breaches of their fundamental rights "against any authority in the country performing any function that is public in nature", a subcommittee of the Joint Select Committee has suggested that the draft has not gone as far as the Constitution Commission, which had recommended that the protection of those rights should extend as far as between citizen and citizen.
The recommendations concerning the Charter came out of the deliberations of both the Constitution Commission of the early 1990s and a Joint Select Committee on Constitutional and Electoral Reform. Attorney-General A.J. Nicholson said the proposed document seeks to enumerate "far broader rights to which the citizens of Jamaica are entitled -- far broader than those contained in the Fundamental Rights clause in the Constitution".
Mr. Nicholson told The Gleaner last week that "in deciding whether that protection should be given (between citizen and citizen), we have to see how other countries approach it, that's what we have been doing."
He explained that several models were being looked at, including that adopted by the Canadians, which says the right should be between citizen and government. In Canada, matters brought by one citizen against another are contested in a normal court instead of the Constitutional Court. A similar approach is adopted in the United Kingdom, Mr. Nicholson said.
While the committee is yet to decide on the Jamaican approach, the Attorney-General has hinted that the South African model, whereby citizens can bring action against "organs of the state", could be adopted. If Jamaica goes this route, then utility companies, although privately-owned, could be sued because they provide public functions.
A sticking point for the Committee is whether, in the pursuit of these rights between citizen and citizen, the Constitutional Court would become bogged down with such matters. Opposition member Delroy Chuck has suggested the setting up of an administrative court, as obtained in Germany, to review alleged breaches of fundamental rights to prevent overload in the Constitutional Court.
Government member Ronald Thwaites is in favour of citizens being able to take other citizens and companies to court where their rights have been infringed. Mr. Nicholson said "it's a real knotty problem which we must decide at the beginning. The real question is, to whom does the Charter apply.
"The Committee is dead set on deciding that more citizens should be brought on board as far as the pursuit of their rights is concerned," he said, adding that more avenues should be opened up for them to do so.
Mr. Nicholson is hoping that members of the subcommittee will be present when the Committee meets on Thursday and that a decision will be taken on how to proceed. Members of the subcommittee include constitutional lawyer Dr. Lloyd Barnett and former Solicitor-General Dr. Kenneth Rattray.
