Prime Minister P. J. Patterson (left) and then Jamaica Labour Party leader Edward Seaga at the first Vale Royal meeting in November 2002.
Edward Seaga, Contributor
VALE ROYAL is on the map again. It was the venue for critical bilateral discussions between government and the Opposition in November, 2002, after I wrote to Prime Minister Patterson inviting him to resume his earlier talks. The agenda was both extensive and intensive covering many sensitive constitutional and non-constitutional issues. This new session is intended to pick up where the last talks ended, particularly on constitutional reforms.
But, before the Vale Royal talks can be discussed, it is necessary to speak to another series of talks between the Hon. David Coore and me on what remained to be done in the programme of constitutional reforms particularly to determine what had been agreed by both sides at the level of the Joint Parliamentary Committee on Constitutional Reforms and in bilateral talks. This Committee was the next to last step in the process of review of the Constitution which began discussions in 1992. The decisions of that Committee would be drafted for presentation as legislation to Parliament for debate. The question, therefore, is what had been agreed or could now be agreed and what should be left to further discussion.
The Seaga-Coore talks originated when Prime Minister Patterson approached me with a proposal that David Coore and I, as the only two survivors of the Parliamentary committee which drafted the Constitution of Jamaica for Independence, should hold discussions to determine the areas of agreement or disagreement reached. This would determine what issues could go forward for enactment by Parliament and which would remain for further bilateral talks. Coore and I agreed and those meetings between us took place at Vale Royal with a recording secretary present. The matters which the records of the joint parliamentary committee showed to be agreed would go forward for enactment in Parliament. Those not agreed would now presumably be among the main agenda items at the larger Vale Royal meeting recently convened.
David Coore and I agreed that 16 of the 29 matters discussed (roughly one-half) were ready to be drafted as legislation to go to Parliament for enactment. The other 13 were at different stages of indecision.
For purposes of abbreviation of what could be a very long presentation if done in narrative form, I set out below in report form the 16 amendments of the Constitution agreed by the joint parliamentary committee, for constitutional reforms, as confirmed by the Seaga-Coore team of two. I will also set out the main proposals which were agreed and should now form part of the agenda for the Vale Royal discussions.
AGREED CONSTITUTIONAL AMENDMENTS READY FOR ENACTMENT BY PARLIAMENT
(1) Agreement that Section 50 which provides for a special act of Parliament to suspend or abrogate fundamental rights and freedoms; should be deleted;
(2) Agreement to amend Section 78 to abolish the positions of parliamentary secretaries and ministers of state, substituting the position of deputy minister;
(3) Agreement for amendment to be introduced to remove the Attorney General's approval relating to consent for actions against government brought in the public interest and for the protection and enforcement of public rights. The Rules of Court have already been amended Order 53 to allow persons with sufficient, thought not direct interest to file suit, as proposed by me in 1992.
(4) Agreement that treaties negotiated by the executive (Cabinet) must be ratified by Parliament;
(5) Agreement for Section 26 (8) and (9) to be repealed. This is the State of Public Emergency Section. It is to be replaced by:
Amendments agreed to Sections 26 (4) to (17) to limit the period of a state of emergency to 14 days, unless there is agreement between Government and Opposition by a 2/3 majority of all members in each House to extend it, and, if so, for no longer than a further 3 months.
An amendment has also been agreed to subject to judicial review action taken to restrict citizens rights in a state of emergency. The existing provision for a state of emergency gives the Opposition no power to bar any extension nor does it allow a citizen deprived of his rights to seek judicial review.
(6) Agreed that Section 94 should be amended to allow judicial review of any decision made by the director of public prosecution.
(7) Amendment of Section 103 (1) agreed to allow the chief justice to sit as of right in the court of appeal to preside in cases of exceptional public importance in a full court of not less than five judges.
(8) Amendments agreed to provide that members of the Judicial Services Commission and those commissions governing the public service and police to be appointed by the head of state, after agreement by both Prime Minister and Leader of Opposition, not prime minister alone as is effectively the present position. This removes the device enabling hand-picked members who are supporters of a government to serve on sensitive committees.
(9) Amendment to Section 37 agreed to provide that Commonwealth citizens who
are not Jamaican citizens should not be eligible to be Parliamentarians and that residential requirements for Jamaican citizens be removed.
(10) Agreement for Section 35 to provide for the membership and composition of the Senate to be amended to provide an increase in seats as follows:
| Government | 20 |
| Opposition | 14 |
| Independent | 2 |
This proposed large increase in the Senate from 21 to 36 members was due entirely to the mathematical impossibility of giving the Opposition at least two members more than 1/3 of the total and allows for two independent members:
(I am personally not comfortable with this amendment as I believe that it could water down the quality of the Senate).
(11) Entrenchment agreed for the contractor general and electoral commission.
REFORMS TO BE DISCUSSED
Only some of the reforms not agreed, which are to be subject to further discussion, are important enough to be mentioned here:
1. Parliamentary confirmation of presidential and other important appointments will be required subject to:
a) Rejection by 2/3 majority of either House. This gives Government automatic capability to reject applicant in the Senate (Government position);
b) Approval by 2/3 majority in each House which gives Opposition automatic capability to disapprove applicant in Senate (Opposition position);
There is agreement for the general principle of confirmation by Parliament of presidential and a list (to be decided) of important posts but disagreement exists on the formula for decision.
RIGHTS AND FREEDOM
2. The Charter of Fundamental Rights and Freedoms. This is the most important issue of all the constitutional reforms. It has been in a joint select committee of Parliament for more than three years. The areas of contention are an insistence by Government to retain a caveat which allows the state to suspend certain rights and freedoms "in the public interest". There is no precise interpretation of what is in the public's interest. Hence, this caveat opens the door for the abuse of human rights by the state.
To overcome this, all references which give the state power to act "in the public interest" are to be replaced by a single umbrella saving clause which governs suspension of any right or freedom when constitutionally necessary. This saving clause, which draws on the Canadian and Trinidadian constitutions, reads:
"We affirm that save only for laws that are required for the governance of the state during periods of peril or public emergency or as may be demonstrably justified in a free and democratic society Parliament shall pass no law and no organ of the state shall take any action which abrogates, abridges or infringes..." (all rights and freedoms, as listed).
The problem, however, is that the draft presented to Parliament, retains some provisions of the Charter to be qualified by "the public interest" and some by the saving clause. Logically, only one regime for qualification can prevail and it would have to be the saving clause since the caveat which relies on "the public interest" is subject to exploitation and has been exploited.
But what is worse, is the intent of the Government to water down the exacting prescription of the saving clause which prohibits government from abrogating, abridging or infringing any right or freedom "except as may be justifiable in a free and democratic society", by rewording the exception to read "free, peaceful, orderly and democratic society". The words added, "peaceful and orderly", open the door to the abuse of rights and freedoms on the basis of interpretation which could label genuine protest action as disorderly or not peaceful. This attempt to open a back door to the abuse of rights and freedoms, has not been agreed by the Joint Parliamentary Committee.
RIGHT TO PROCESS
Nor has there been any agreement on the apparent intent of government to suspend the right to due process of law in criminal cases in times of public emergency. Due process guarantees the right to fair trial.
3. The Privy Council has ruled that the Caribbean Court of Justice, as framed by government, is unconstitutional as a final Court of Appeal for Jamaica.
What remains to be determined is whether it can perform its other function constitutionally as a court of original jurisdiction only and to deal with trade disputes and interpretation of the Treaty of Chaguaramas. In the main, there are two issues here:
(1) As a court of original jurisdiction it would have to be of the status of the Supreme Court in Jamaica which is entrenched by the Constitution. As such the CCJ acting in this capacity, would also have to be entrenched. This would require the same 2/3 vote in each House of Parliament and a referendum, no different from the requirements for the CCJ to be a final Court of Appeal.
(2) The CCJ, however, has deeper problems than the constitutional barrier. It would be an unknown and untried court and as such, to establish it as the final Court of Appeal to replace the Privy Council in the absence of any performance on which it can be judged would be a monumental error with grave constitutional implications for safeguarding human rights in Jamaica.
To get around this impasse, I proposed two years ago that the CCJ be given a trial period of 10 years as an alternative Court of Appeal of lesser status than the Privy Council while retaining the Privy Council for that period as the final Court of Appeal. At the end of that period, a referendum would be held for the people to determine, based on the record of performance of the CCJ, whether it should replace the Privy Council as the final Court of Appeal for Jamaica.
REPUBLICAN STATUS
4. The last major constitutional issue is the question of republican status for Jamaica. While both Government and Opposition parties have agreed to replace the monarchy with a republican state, there is no agreement on what would be the system of governance in such a case. Basically, the choice is:
The position of Governor-General is a ceremonial one with little powers. A President would replace the Governor-General with similar ceremonial responsibilities. Final authority here would continue to rest with the Prime Minister and Cabinet and with Parliament. I call this a balance of power particularly since agreements have already been reached to reduce the over-arching powers of the Prime Minister in selections of appointments for sensitive posts and in the calling of an election. Such agreements, when enacted, would create a better balance of power in the system of governance. Indeed, the road ahead is to further strengthen the powers of Parliament by reforms such as those proposed by me in November, 1994 and April, 1995, not to try to reconfigure the whole system to the unworkable alien model of a separation of powers used throughout Latin America where governments are frequently overthrown by their military forces because the system does not work.
We are still far away from resolution but not too far from final approval in Parliament of most of the constitutional reforms which began in this round, in 1992. Hopefully, the new Vale Royal talks will bring the unresolved matters to final resolution.
There is a tendency to downplay these constitutional talks as having no immediate impact on current problems. The importance of the talks is not to be measured in terms of immediate impact but in the quality of life which it can provide with the security of a truly just society. That security is, without doubt, one of the most crucial elements in salvaging Jamaican society from being torn apart and shredded in social disruption.
Hon. Edward Seaga, ON, PC is a former Prime Minister. He is now a Distinguished Fellow at the UWI.
