Martin Henry OUR PARLIAMENTARIANS are holding up our Charter of Rights and Freedoms. The Bill is stuck in the Joint Select Committee. We have been at it since 1999, and this is the third Committee.
Justice Minister and Attorney-General, A.J. Nicholson, who chairs the Committee, is frustrated and has declared Government's intention to fast-track the process. There will be no further lengthy delays in Committee before referring the Bill back to the House for final debate and legislation. But a two-thirds majority is needed for passage. This will require the support of the Opposition in both the lower House where the Government does not now have a two-thirds majority and in the Senate which was constitutionally arranged so that the Government, with 13 of 21 senators, can never have a two-thirds majority. In short, matters of the greatest constitutional significance require the collaboration of Government and Opposition. And that is what we are not getting with the Charter of Rights and Freedoms.
While the Government and Opposition members of the Joint Select Committee for the Charter bicker, citizens yawn, if not totally asleep. Very few of us know or seem to care what Chapter III of the Constitution says about "Funda-mental Rights and Freedoms" much more what the Charter of Rights and Freedoms, which is to replaced that Chapter, has to say. Part of the blame lies with the failure of public education on constitution and citizenship since 1962 by the state itself. Part of the blame lies in the great disinterest of the citizens of a free, democratic and independent nation in these fundamental matters.
What citizens can accomplish in influencing the legislative process has just been forcefully demonstrated with the infamous Anti-Terrorism Bill. A coalition of civic organisations, with the determined engagement of the parliamentary Opposition, forced both a delay in fast-tracking that Bill as intended by Government and the placing of it in a Joint Select Committee.
POWERFUL PARLIAMENTARY MECHANISM
The Joint Select Committee is a powerful parliamentary mechanism. It cuts haste. It allows the full airing of contrary views among Govern-ment and Opposition members before the full Parliament considers a matter for legislation. But most of all for us citizens without a seat in our House of Parliament, the JSC mechanism allows public input into the debate. Typically the Bill in question is converted into a Green Paper, a document for public circulation and the basis for presentations to a JSC.
As we all know, the recalcitrance of the Opposition is not always in the best interest of the people. Opposition parties have their own axes to grind and their own agenda of concern for political power which do not necessarily coincide with the general interest of citizens. The matter has to be carefully checked out.
A point which has come up in the bickering is MP Delroy Chuck's objection in a letter of February 18 to any empowering of Parliament under the Charter of Rights and Freedoms to make any laws that "abrogate, abridge or infringe" rights and freedoms. So it was reported.
Mr. Chuck is a legal luminary. Under such restrictions, Parliament could make no laws at all. Almost by definition a law is a restraint upon absolute freedom. And there are many instances in which the state may have to take temporary measures to further curtail some rights and freedoms to protect the larger interest of all citizens: natural disasters, disease outbreak, war and civil unrest, economic crisis-.
In the whole history of rights, freedoms, democracy and parliament there is this constant tension between protecting and restraining rights and freedoms. There is no final answer. But some broad principles have emerged: The rights and freedoms of minorities must be respected and protected under the law.
RIGHTS AND FREEDOMS
MUST BE BALANCED
The power of the state must be restrained by the law, but not to the point of impotence. Rights and freedoms must be balanced with responsibility, both on the part of citizens and the state. Redress must be available and accessible when rights are unlawfully and unreasonably abrogated, abridged or infringed.
History has taught us some other crucial things about rights and freedoms: Rights and freedoms are best protected among generally law-abiding people under the rule of law. There is a religious word for this, "virtue". The multiplication of rights and freedoms in constitutions offers no guarantee of their protection on the ground without the will and heart of state and society.
The preamble to the Jamaican Charter of Rights and Freedoms now stuck in Committee is magnificent in its intentions: "Whereas all persons in Jamaica are as a people entitled to preserve for themselves and future generations the fundamental rights and freedoms to which they are entitled by virtue of their inherent dignity as individuals and as citizens of a free and democratic society; all individuals having duties to other individuals and to the communities to which they belong, are under a responsibility to respect the rights of others and to strive for the promotion and observance of the rights recognised in this Chapter, the following provisions of this Chapter shall have effect for the purpose of affording protection to the rights and freedoms of the individual, to the extent that those rights and freedoms do not prejudice the rights and freedoms of others or the public interest."
BICKERING
We have the political philosophy right. Let us work on the details without undue haste or foot-dragging. The bickering about the 'correct' draft by the Opposition smells of not so fresh fish. The Committee Chairman should quickly move to transparently resolve that problem.
But if we can't, or won't, arrest the lawlessness and corruption which are killing this country, constitutional rights and freedoms in old Chapter or new Charter will not mean a thing. The very first right, "the right to life, liberty and security of the person", already means nothing to the nearly 150 of our fellow citizens who have been slaughtered in the first two months of this year.
Martin Henry is a communication specialist.
