Can Jamaica's record of performance be salvaged? - Part 2

Edward Seaga, Gleaner Writer

Those who are old enough to think back to the criminal-justice system in the early years of Independence would be immediately struck by the considerable increase over recent decades in crime, corruption and injustice. It is unnecessary to quote supporting data for this. The media are riddled with stories, virtually on a daily basis, of killings and corrupt acts, in particular. Add to this the growing awareness of the need for social justice which, it is widely felt, is not manifested.

The truth is that in Jamaica, law and order are considered essential to civilised societies, but justice is not. Law, order and justice are supported widely, as concepts, virtually by all, but for the great number of under-privileged people in the society, justice is perceived to be denied.

What is the nature of this justice, as conceived by the folk society of Jamaica, the inner-city and rural areas where the poor and underprivileged reside, accounting for the great majority of the population? I turn to my inaugural address of May, 2005, at the University of the West Indies, 'Folk Roots of Jamaican Cultural Identity':

"A sense of justice is also fundamental to the Jamaican psyche. There is good reason for this. Respect and justice go hand in hand. "Is injustice" or "Is disadvantage" are familiar cries. There is a sense of a natural law defining justice in Jamaican folk society which demands that 'respect due' always.

"The strength of this pervasive sense of justice is one of the true stabilisers in Jamaican life, as well as an effective dynamic which guarantees the democratic process, for, though the crime be unjust, the penalty must be just. Extreme anger often determines otherwise, but a deep sense of justice is moreso the rule than the exception in the Jamaican psyche.

"This natural law of justice incorporates a legal basis, but also involves a wider concept of social justice which itself includes all manner of wrongs. Bad roads, lack of water, poor schools, uncaring medical attention are as much an injustice as acts of state terror, because it is an offence against those who have neither wealth nor privilege to protect themselves. Through the eyes of folk society, the concept of injustice does not fully include the plight of the rich and powerful. It is felt that they must fend for themselves.

"In underprivileged Jamaica, where crossing over to a better life is an obstacle course of shackles, injustice is anything that makes life harder while so many enjoy life. This sets the tone for the wide gap between the two Jamaicas."

Balancing two extremes

How do we balance the two extremes views of justice held by Jamaicans, both of which play critical roles in stabilising the country?

It is through the cracks created by the loose regard for true justice that the widespread abuse of fundamental rights and freedoms for the underprivileged fall. From this abuse flows not only the loss of rights and freedoms but, in a much bigger sense, the wider society of underprivileged people feel the impact of a reinforcement of social rejection which widens the national divide between 'we' and 'them'.

Few people in the society recognise the implications of the split in national identity. Little do they know that the 'we' are the ones who try to keep the values of law and order because 'we' feel a sense of protection, but it is not the same for 'them', who have a much more arbitrary concept of law and order because they have far less to protect. This divide makes it difficult to appeal to any sense of moral right or wrong, and attempted solutions which go this moral route have little hope of success.

Being a second-class citizen in one's own country and third-class in most others can be a traumatic experience for Jamaicans, one which translates into feelings of reluctant support for principles held by first-class citizens, resulting in a resolve to live with the more loosely construed principles of the world of second-class citizens to which they have been wrongly condemned. I say wrongly condemned because it is the disrespected underclass of folk society which has stamped Jamaica on the world map, not the more privileged population.

Discounted group

It is from this discounted group that our rich musical creations have established Jamaican reggae as a worldwide brand of preference in popular music. It is this group that has achieved world-class athletic power that has endowed Jamaica with another First World brand. Other brands are in the making, all from the same pool, Jamaican models being the next likely status achievers, having already laid a foundation of recognised professional success.

This talent pool should be celebrated, not denigrated! How do we provide the recognition and respect due?

It is because of my own lifelong commitment to the recognition of the powerful talent of folk society that in the 1990s I focused on the enhancement of justiciable and social reforms of the Jamaican Constitution.

The first step was to create a new institution to protect rights and freedoms and the second to review the sections of the Constitution which provided less effectively for justice.

The concept of the need to protect aggrieved citizens, especially the underprivileged, from abuse of their rights and freedoms was introduced by me into the Constitution Reform Commission in 1992.

It was conceived that a special constitutional post would be created to protect the rights and freedoms of the Constitution and to prosecute violations. The position was first called the advocate general, later the public defender, to emphasise its purpose as a defence against abuse. In its enactment, however, the public defender was structured to rely on the Office of the Attorney General for support to proceed with prosecution of violations.

The drawback to this arrangement was that the attorney general as a political appointee could be perceived as able to influence sensitive issues, a perception which could be daunting to holders of the position of public defender and prejudicial to its constitutional independence. To overcome this, the office of the public defender needs to be a creature of Parliament independently endowed with its own budget.

This power of independence as a creature of Parliament is enjoyed only by a few select positions in the public sector, notably the accountant general, director of public prosecutions, contractor general, Office of Utility Regulations (OUR), the Electoral Commission and a few others. This guarantees that they lie outside of the reach of political interference.

The framework within which the public defender acts is Chapter III of the Constitution which deals with fundamental rights and freedoms. This crucial area of the Constitution provides for those rights and freedoms the enjoyment which citizens require the state to guarantee to the people.

For the most part, the Constitution is seen by Jamaicans as a protection of fundamental rights and freedoms. Yet few persons are aware of the particular rights and freedoms for which Chapter IIII of the Constitution makes provision. In great part, this is due to certain provisions of the chapter in which certain rights and freedoms are qualified by exceptions as determined by the state which allows them to be suspended "in the public interest." The result that a clear compilation of rights and freedoms is lost in qualifications and circumscriptions scattered over several pages.

To overcome this jumble I proposed to the Constitution Reform Commission a listing of all rights and freedoms to be set out in a straightforward format capable of duplication and easy understanding. In this exercise, new rights were added. This would be a new Charter of Fundamental Rights and Freedoms.

To overcome the multiple clauses which allowed for suspension, a saving clause was introduced which would "prohibit the state from taking action which abrogates, abridges or infringes any of the articles of the Charter, save only for laws that are required for the governance of the state in periods of peril and emergency, or as may be democratically justified in a free and democratic society."

Political abuse

This would prevent political abuse by suspension of any rights and freedom "in the public interest". This single amendment would negate the abuse allowed by these loosely drawn clauses, allowing the state to act unwarrantedly in the public interest without just cause. The reformed constitution could then enact strict observance of various rights and freedoms, inclusive of those most precious to underprivileged:

• equality from political victimisation;
  
• equality before the law;
  
• equitable and humane treatment by any public authority in the exercise of any function;
  
• freedom from discrimination on the grounds of race, social class, religion, gender, place of origin or political preferences;
  
• protection of the person, respect for private and family life, privacy of the home and of communication;
  
• entitlement of a person with a criminal offence, or detained, to communicate with and be visited by his spouse, partner or family member, religious counsellor and a medical practitioner of his choice;
  
• entitlement of a person who is charged with or detained, in connection with a criminal offence to communicate with and retain an attorney-at-law;
  
• entitlement of every citizen to be granted a passport and not be denied or deprived thereof except by due process of law; and
  
• entitlement of every citizen who is requested to vote, to participate and vote in free and fair elections.

Many other fundamental rights and freedoms are provided in the Charter but the above are those which most affect those persons who feel that there is no justice.

Perhaps the most far-reaching of all the provisions of this Charter is the decision not to limit it to actions of the people against the state, but to extend the limit to include abuses committed by private persons or entities.

As such, the new Charter of Rights will be a comprehensive legal code conferred with constitutional powers, which could almost be the blueprint of an ideology for a just society laying the foundation for a unified nation, one Jamaica.

How does this affect the temperature of a crime-ridden nation? In the 1980s, murders were reduced from 953 deaths in 1980, and maintained a level of plus or minus 450 for every year, to the end of the decade, and this without any state of emergency. After the political terrorism and turbulence of the 1970s, the 1980s becalmed the nation and injustice subsided.

The hope for justice lies in the Charter of Fundamental Rights and Freedoms. But it is no longer on the parliamentary agenda to be enacted. It must be restored immediately.

"Give the people justice and they will give you peace."

Edward Seaga is a former prime minister. He is now the pro-chancellor of UTech and a Distinguished Fellow at the University of the West Indies. Email: odf@uwimona.edu.jm or columns@gleanerjm.com.