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Jamaica's mature democracy

BY BRUCE GOLDING

Sunday, April 21, 2019

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Democracy is not just about free and fair elections to choose a government. It is also about the recognition of the fundamental rights of every person and the means to secure those rights. It is about the separation of powers and the independence of critical institutions to prevent the concentration and abuse of those powers.

The most important of these, especially in a two-party-dominated parliamentary system where the separation between the executive and the legislature is more imagined than real, is an independent and disciplined judiciary that is the ultimate arbiter and guardian of the constitution that cradles that democracy. Critical, as well, are a free press and a vigilant citizenry.

I have undertaken assignments in a few countries where the management and conduct of elections are, in many respects, superior to ours. Yet, their democracy is compromised because of flaws in the critical institutions that form the pillars on which it rests.

In the Maldives, which I visited recently, the election, on the face of it, was peaceful, free and fair and well-managed, but political opponents, journalists, members of its Election Commission and even judges are accustomed to being locked up arbitrarily.

Last year, its chief justice was arrested and subsequently sentenced to five months' imprisonment for “obstructing government administration and justice” after he ordered the release of a number of political prisoners. The other three supreme court judges who had joined with him in that ruling hurriedly reversed their decisions. Many public officials were forced to flee the country to avoid a similar fate.

International election observers found no irregularities in Turkey's elections last year but noted that they were conducted in a “climate of fear” with heavy press censorship and the detention of several political and other public figures.

Following the failed coup attempt in 2016, 2,431 Turkish judges and prosecutors were arrested in a politically motivated crackdown. Some of them were held for over a year without charge and some were even kept in solitary confinement. Another 4,424 were summarily dismissed. Even before that, as the Jamaica Observer reported on December 25, 2014, a 16-year-old boy was arrested for making “insulting” remarks about the president.

In some other countries that boast free and fair elections, the judiciary is weaponised and behaves like a loose canon, exercising authority that the constitution does not confer on it. And if it dares to resist pressure to behave that way, its judges run the risk of themselves being imprisoned.

We can be proud and must be vigilant

We in Jamaica have a lot to be proud of and to be vigilant in protecting. Among them is the Charter of Fundamental Rights and Freedoms on which work commenced 40 years ago and which, with the necessary support of the Opposition, I was privileged to pilot through Parliament in 2011. Among them, also, are the independence, integrity and strength of our judiciary and the public confidence it commands despite the constraints under which it operates.

The recent ruling by our Constitutional Court that the National Identification and Registration Act is unconstitutional is less a defeat for the Government than it is a validation of the independence of our judiciary and the sturdiness of our democracy.

We must not take these lightly or for granted. There are many so-called democracies where the judiciary would not have been inclined to do so for fear of the consequences. Also, such a ruling might not have been possible prior to the enactment of the Charter of Fundamental Rights and Freedoms.

In the United States where, according to President Trump, there are “Democratic” judges and “Republican” judges, one gets the impression that judges are being appointed with the expectation — if not the naked purpose — of doing the bidding of the executive. The type of verbal abuse that he so frequently heaps on critical institutions of government, including the judiciary and prosecutorial authorities, is alarming.

Equally alarming was the declaration by Prime Minster Basdeo Panday of Trinidad and Tobago in 2000 that its chief justice was the country's “public enemy number one”.

Such actions are unheard of in Jamaica, and would ignite a public outrage that no prime minister could contain.

In India, the world's oldest democracy, the most senior judge next to the chief justice — Justice Jasti Chelameswar — raised alarm last year about political interference in the appointment of judges.

All of NIDS is not lost

In some countries like Belgium, Chile, and Colombia, individual identity registration is compulsory for all persons over age 18 (15 in the case of Belgium) and they must be able to produce the registration card at all times when lawfully required to do so.

The Government has invested much of its strategic planning relating to economic and social policies, as well as public safety, in the NIDS. Despite the court's ruling, all is not lost. While the Government has the option of challenging the ruling in the Court of Appeal and, if necessary, the Privy Council, it may be better and ultimately necessary to unpack and reconstruct the legislation, focusing on those provisions that the court found to be offensive.

While the entire legislation was struck down because the court concluded that the removal of the offensive provisions would render the other provisions incapable of standing on their own, not all of the provisions that were challenged were found to be unconstitutional.

Competent legal minds can recraft the NIDS legislation in a way that complies with the constitution and preserves, to a great extent, the good intentions of the programme. The compulsory registration requirement may have to be excised. People can be induced otherwise to register, as we have seen with the Taxpayer Registration Number. The issue of the extent of data collected, how it is to be used and how it will be protected are matters that will have to be revisited.

Precedence

This decision of the court is not without precedence. The imposition of indefinite imprisonment associated with the establishment of the Gun Court in 1974 and the attempt to install the Caribbean Court of Justice as our final appellate court in 2004 are two examples of significant legislation that was struck down by the courts as unconstitutional.

In the latter case, the Privy Council made an important comment in affirming that, unlike the United Kingdom where the Parliament is sovereign, the constitution of Jamaica makes it clear that sovereignty resides in the constitution. This distinction is relevant to the enactment in Britain of the Identity Cards Act of 2006, the provisions of which were very similar to those of the NIDS. Registration was to be made compulsory and 50 items of information, including biometric data, were to be captured for each individual and stored in a national database.

That initiative experienced as much of a rough passage as NIDS has. The issues that drove the debate are very much the same: fears about the security and use of the data, invasion of privacy, the “big brother” syndrome, mission creep, etc. Political postures were also similar — the Opposition supported the Bill in principle but took issue with aspects of its provisions and application.

The constitutionality of the Bill could not be challenged in Britain because it has no written constitution and, as mentioned before, its Parliament is sovereign and has the final say on legislation. However, following the change of Government in 2010, the David Cameron Administration scrapped the idea and the Act was repealed in 2011.

All is not lost, either, in the expenditure that has so far been made for the roll-out of the NIDS. Contracts may have to be amended and even renegotiated but much of the work already done would still be of value in a revamped, constitutionally compliant programme.

Our democracy is not perfect, but the recent ruling of the Constitutional Court is another testament to the fact that it works and it is something of which we are to be proud and protective.

— Bruce Golding is a former Prime Minister of Jamaica


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