Frank Phipps QC on Unconstitutional moves, Special Acts of Parliament

Eminent Queens Council Frank Phipps draws our attention to a general rights issue regarding Special Acts of parliament and the procedures for same, he wrote in the Gleaner via a letter to the editor saying:

The Editor, Sir:

I find myself in unaccustomed company over some aspects of the six pieces of the anti-crime legislation. 'Misfortune acquaints a man with strange bedfellows.' I am firmly, uncompromisingly, and irrevocably opposed to any legislation that may in any way change or affect fundamental rights by altering or making different provisions for the protection of those rights; and, I add, unapologetically opposed, despite the courts rejecting my submissions.

Any proposal that affects the protections can only become law if passed in the manner provided for in the Constitution. I am especially anxious where the proposed legislation seeks to give extraordinary powers to agents of the state to the detriment of the individual. The legislation must, I submit, meet the restrictions on change imposed both at sections 49 and 50 of the constitution for Special Acts of Parliament. Otherwise, the word 'fundamental' has no meaning for rights and freedoms in Jamaica and the protections set out at sections 13 to 26 of the constitutions are illusory.

Rights are not gifts

A starting point for consideration must be an understanding that the fundamental rights and freedoms of every person in Jamaica pre-date the Jamaican Constitution. These rights are not the gift of the Constitution to be taken away or altered by Parliament at will. The Constitution is an affirmation of the Universal Declaration of Human Rights; it confirms the fundamental rights and freedoms for persons in Jamaica and, at the same time, provides enforceable protection for those rights - including protection against incursion on the rights by Parliament.

Any legislation for abridging or removing the protections in the Constitution for fundamental rights and freedoms, envisaged at sections 49 and 50, must be closely monitored and jealously applied. These sections are there to delay action to allow for mature thought and unhastened decisions on fundamental rights.

Special Acts of Parliament 49. - (1)

(2) In so far as it alters - (a) sections 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, [the Fundamental Rights] subsection (3) of Section 48, sections ...

(b) a Bill for an Act of Parliament under this section shall not be submitted to the governor general for his assent unless a period of three months has elapsed between the introduction of the bill into the House of Representatives and the commencement of the first debate on the whole text of that bill in that House and a further period of three months has elapsed between the conclusion of that debate and the passing of that bill by that House.

(9) In this section - (b) 'alter' includes amend, modify, re-enact with or without amendment or modification, make different provision in lieu of, suspend, repeal or add to.

50. (2) An Act of Parliament to which this section refers is one the bill for which has been passed by both Houses and at the final vote thereon in each House has been supported by the votes of not less than two-thirds of all the members of that House.

I am, etc.,

FRANK PHIPPS

KINGSTON