DAVID Coore, attorney-at-law and one of the framers of the 40-year-old Jamaican Constitution, doesn’t share the Opposition’s view that legislators breached the country’s supreme law last week when they started debating amendments to add new and expanded rights and freedoms.

“I don’t think the constitution requires that if you have a bill and it has been laid long ago and has gone through the process of consultation by a joint select committee of Parliament, you have to leave it for another three months before Parliament passes a resolution receiving and adopting the committee’s report,” said Coore.

He was responding to the claim by Opposition Leader Edward Seaga that the legislature had breached Section 49 of the Constitution by beginning to debate the Charter of Rights bill before the elapse of three months after the document was tabled.

The section states: “…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…”

This is part of the process of amending entrenched provisions in the Constitution such as those under chapter three, which the rights bill is intended to replace in its entirety.

Seaga insisted that a revised bill, introduced in the House on April 30, 2002 and containing significant amendments to the Charter of Rights bill that was tabled in March 1999, should observe the three-month waiting period before debate on it commences.

But according to Prime Minister P J Patterson, the document Seaga identifies is merely a reference document to “facilitate understanding” as legislators debate the report prepared by a committee of both houses of Parliament who reviewed the original Charter of Rights bill. The committee, which was appointed in July 1999, handed in its report last November.

“It’s not a series of amendments. It is a fundamentally different document from the 1999 document,” counters Seaga who, like Coore, is one of the framers of the Independence Constitution.

Coore, a former attorney-general and Cabinet colleague of Patterson, says that despite undergoing substantive changes the original rights bill, along with the committee’s report, is what must be before the House.

“If additional time is required (for debate) there is still the opportunity to do so,” he notes. “Receiving and adopting the report doesn’t bring it into law and all it means is that they will now proceed to second reading,” he explains.

In contrast, Lloyd Barnett, respected constitutional lawyer, agrees with the Opposition view that the amendments to the 1999 rights bill are so substantive that they should observe the three-month waiting period before the start of any debate.

“You have those delays in the Constitution… so that the issues can be ventilated,” says Barnett. “Whether there is some other reason for the delays, everybody is agreed that public participation is the objective of that provision.”

Berthan McCaulay, another constitutional lawyer, doesn’t agree.

“Anyone in Jamaica can debate a bill as a result of the freedom of expression found in Section 22 of the Constitution,” he states. “But it is wrong to say that the provision in Section 49 provides for public debate when it applies, specifically, to parliamentary debate,” adds McCaulay.

In fact, McCaulay, a former attorney-general of Sierra Leone, suggests that the Patterson administration amend chapter three of the Constitution using the provisions of Section 50 rather than Section 49.

He argues that special legislation passed according to Section 50 of the Constitution “prevails” over entrenched sections of the Constitution. The procedure in this section requires two-thirds of the total votes in the Senate and the House but, unlike Section 49, does not require any waiting periods for the progress of the bill through the houses of Parliament.

“I think this Act should be a separate (measure) and not be a part of the Constitution,” McCaulay argues.

This is the approach, he notes, that Canada and the United Kingdom took in providing their citizens with rights and freedoms.

“It (the Act) can be entrenched later and put in Section 49 of the Constitution,” he adds.

But Attorney-General A J Nicholson holds the opposite view: “The rights enshrined in chapter three cannot be amended or repealed by Section 50,” he says. “That has to be accomplished by the elaborate procedure provided for by Section 49.

“It would hardly be acceptable for provisions to preserve and expand… fundamental rights to enjoy a status that is less secure than that enjoyed at present,” declares Nicholson.

The legislature earlier had amended other constitutional provisions by way of the special legislation route being advocated by McCaulay. Four such pieces of legislation were enacted in 1999.

The Jamaica Nationality Act amended chapter two of the Constitution, providing for the children of Jamaican diplomats born abroad to be accorded citizenship as if they had been born in the island. The amendment also conferred Jamaican citizenship on persons born abroad of Jamaican parentage.

Another bill established the office of the Public Defender, while the Fundamental Rights Bill guaranteed constitutional rights to vote, to receive fair and humane treatment and to be granted a passport.

The fourth measure, the Law Reform Act, permits a private individual to make an application directly to the Supreme Court for the protection and enforcement of public rights without the consent or fiat of the attorney-general.

Barnett, like Nicholson, says to introduce the charter of rights and freedoms via a special legislation would, in his view, be “contrary to the spirit of the amendment process”, which all agree should entail the entrenchment of the proposed new rights.

The proposals for new and expanded rights and freedoms include the right to life, liberty and security; freedom from discrimination on the grounds of gender or social class; and the right of a child to protection and free education at the pre-primary/primary level.

Other proposed rights include the right to vote, right of protection against torture or inhumane treatment and the right not to incriminate oneself by way of testimony in a court.

According to Barnett, Section 50 is applicable in instances where provisions are made which are inconsistent with certain of (the) provisions (of chapter three). In such circumstances, he explains, a court will rule to retain the new law although it runs counter to the entrenched provisions of chapter three of the constitution.

The effect of Section 50 to dilute entrenched clauses has been cause for concern.

“It has been directed by Parliament that Section 50 of the Constitution by which special acts of Parliament may be passed should be repealed,” says Nicholson, “and this will be done when the bill to amend the Constitution and provide for a Charter of Rights has been passed and those provisions entrenched in the Constitution.”

Debate on the rights bill will resume in the legislature following a meeting between the Government and Opposition to arrive at a consensus on the amendments/provisions. Both parties agreed last Wednesday that the progress of the bill through the House should conclude by the end of July 2002.