its about the constitution of Jamaica

1. Lecturer: Shirley-Ann Eaton

2. THE JAMAICA (CONSTITUTION)
ORDER IN COUNCIL, 1962
Order in Council highest form of delegated legislation and
is Order of the Privy Council
Order in Council usually made by Government and
merely approved by Privy Council
Jamaica (Constitution) Order in Council came into being
by virtue of exercise of powers of Her Majesty under
section 5 of West Indies Act, 1962 “by and with the
advice of Her Privy Council”
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3. DEFINITION OF CONSTITUTION
A Constitution is the:
body of law containing rules which determine the direction of the State, including
the manner in which State is organised
body of fundamental principles according to which the State is governed
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4. SUPREMACY OF JAMAICAN
CONSTITUTION-
SUPREME LAW CLAUSE
Section 2 of Chapter 1 of Jamaican
Constitution provides that “Subject to the
provisions of sections 49 and 50 of this
Constitution, if any other law is
inconsistent with this Constitution, this
Constitution shall prevail and the other
law shall, to the extent of the
inconsistency be void”
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5. SUPREMACY OF CONSTITUTION-
SUPREME LAW
The Jamaican Constitution is:
the supreme law of the land
the fundamental law by which all other laws are measured
It is the basis of the Rule of Law
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6. THE JAMAICAN CONSTITUTION
The Constitution:
defines citizen’s rights and the nature and form of the legal and political systems
lays down mandatory procedures for government
provides redress for violations of basic human rights
sets the foundation for judicial review
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7. ALTERATIONS TO
CONSTITUTION
Section 49 of Constitution allows for alteration by Act of
Parliament passed by both Houses and states sections
which may be altered and procedures to be adopted for
alteration
Section 50 provides for Special Acts of Parliament, i.e.
Acts which may be inconsistent with Bill of Rights
(s13-26) but are not void for inconsistency as they are not
literal amendments to Constitution
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8. ALTERATIONS TO
CONSTITUTION
Special Acts of Parliament must be passed by not less than two-thirds of all the
members of both Houses
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9. ALTERATIONS AND SUPREMACY
OF CONSTITUTION
debate surrounding sections 49 and 50 as it pertains to
supremacy of the constitution versus parliamentary
supremacy
broad view propones there is no constitutional limitation
on legislative supremacy of Parliament for although
Constitution is supreme, it is not immutable and does
provide for future alterations by the people acting through
their representatives in Parliament but
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10. ALTERATION AND SUPREMACY
OF CONSTITUTION
Section 48 of Constitution gives Parliament
wide powers to make laws for the peace,
order and good government of Jamaica
however these powers are subject to the
provisions of the Constitution
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11. SEPARATION OF POWERS
Principle of separation of powers embodied in
Constitution confirmed by Privy Council in case of
Hinds v R.[1977] in which it was held that it was a
violation of the separations of power doctrine
enshrined in the Jamaican Constitution for the
Jamaican Parliament to seek to establish a Gun Court
giving Resident Magistrates jurisdiction reserved for
Supreme Court Judges under the Constitution
Judgment represents first instance in which an Act of
Parliament by an independent Caribbean State was
invalidated as unconstitutional
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12. SEPARATION OF POWERS
Constitution provides for the establishment of the
legislative, executive, and judicial arms of the state
Bill of Rights imposes a fetter on the exercise of power
by the legislature, the executive and the judiciary
Constitution guarantees the autonomy of the judiciary
by the establishment of a Supreme Court and its
Judges and security of tenure of judiciary through
establishment of an independent Judicial Commission
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13. ENTRENCHMENT
Entrenchment is the protecting of some provisions of a
Constitution against change by the ordinary legislative
process
Court in Hinds v R referred to significance of
entrenchment in noting that it “is to ensure that those
provisions which were regarded as important
safeguards by the political parties…should not be
altered without mature consideration by the
Parliament and the consent of a larger proportion of
its members than the bare majority required for
ordinary laws.’
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14. ENTRENCHMENT
Ordinary legislative process refers to simple majority vote i.e. a majority of those
members of a House of Parliament constituting a quorum who are present and
voting at a particular meeting of the House. Ordinary legislative process of a
simple majority cannot change provisions of any Caribbean Constitution (except
for certain clauses in T &T Constitution)
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15. ENTRENCHMENT
N.B.(Jamaica)
Quorum of both Houses of Parliament set by Standing
Orders of both Houses
Quorum for House of Representatives – 16
Quorum for Senate – 8
No. of Representatives – 63
No. of Senators – 21 (13 –majority party; 8 –opposition)
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16. ENTRENCHMENT
Entrenchment entails requirements varying in complexity
Includes special formulae, delaying procedures, special parliamentary majorities,
Senate vetoes, and referenda requirements
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17. ENTRENCHMENT
Example of special formula in Jamaican Constitution where special recital or
words of enactments are needed. Ordinary Bills must carry the following
recital:`Be it enacted by the Queen’s Most Excellent Majesty, by and with the
advice and consent of the Senate and the House of Representatives of Jamaica,
and by the authority of the same as follows:-’
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18. ENTRENCHMENT
A Bill for the amendment of the Constitution must have a
special recital, that is, `Be it enacted by the Queen’s Most
Excellent Majesty, by and with the advice and consent of
the Senate and the House of Representatives in
accordance with the provisions of section 49 of the
Constitution of Jamaica, and by the authority of the same,
as follows:-’
Omission of this special recital renders any amendment
void and of no effect.
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19. ENTRENCHMENT
Alteration of the Bill of Rights by way of a constitutional
amendment requires a two-thirds majority of both Houses
as well as a `delaying procedure’ whereby Bill cannot be
submitted to Governor-General for 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
the Bill in the House and a further period of three months
has elapsed between the conclusion of that debate and the
passing of the Bill by the House
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20. ENTRENCHMENT
In addition to aforementioned three month ‘delaying procedure’ amendments of
some provisions require the three month delaying procedure as well as a further
three month delay between the second reading of an amending Bill in the House
of Representatives and its passage in that House
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21. ENTRENCHMENT
Alterations requiring a referendum vote, for example, the entrenching section
and the supreme law clause, require the amending Bill to be submitted to a
referendum not less than two nor more than six months, after its passage by both
Houses
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22. SPECIAL PARLIAMENTARY
MAJORITIES
Absolute Parliamentary Majority – a majority of all
members of the House, whether or not all members are
present and voting on any given occasion
Under the Jamaican Constitution an absolute majority
is required to alter, e.g. provisions establishing posts of
Governor-General, Acting and Deputy Governor-
General, stipulating qualifications and disqualifications for
electors, laying down disqualifications for and the tenure
of members of Parliament
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23. SPECIAL PARLIAMENTARY
MAJORITIES
Two-thirds Parliamentary Majority – two-thirds of all the members of each
House e.g. alteration of Bill of Rights; Special Acts (which may be inconsistent
with the Fundamental Rights and Freedoms provisions in sections 13-26 but are
not void for inconsistency as they are not literal amendments to the Constitution)
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24. JUDICIAL REVIEW
Court is entrusted with duty to examine activities by the State and decide
whether activities are inconsistent with Constitution and of no legal effect –
commonly referred to as exercise of judicial review – extends to the review of
Acts of Parliament, which can be found to be void for repugnance with the
Constitution
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25. JUDICIAL REVIEW
Under concept of rule of law (i.e.the exercise of state power according to law
and the subjugation of state power to the Constitution) Courts have and continue
to review the exercise of administrative powers by the executive particularly with
regard to citizen’s rights or legitimate expectations to hold the State accountable
for its actions
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26. JUDICIAL REVIEW
Intra Vires - where legislation is found to be in conformity with Constitution
Ultra Vires – where legislation is found to be unconstitutional and thus null and
void
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27. CONSTITUTION - CHAPTERS
Chapter 1 – Interpretation and effect of Constitution
Chapter 2- Citizenship
Chapter 3 – Fundamental Rights and Freedoms
Chapter 4 – The Governor-General
Chapter 5 – Parliament
Chapter 6 – Executive Powers
Chapter 7 – The Judicature
Chapter 8 – Finance
Chapter 9 – The Public Service
Chapter 10 - Miscellaneous
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28. CHAPTER 3 – FUNDAMENTAL
RIGHTS AND FREEDOMS
Bill of Rights provisions reflect the direct influence of international sources of
law on the legal system in Jamaica and the rest of the Commonwealth Caribbean
Constitution confers a right to approach the High Court for redress with respect
to alleged contraventions of the fundamental human rights provisions
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29. INTERPRETATION
Controversy has developed concerning saving law clauses found in Jamaican
and other Commonwealth Caribbean Constitutions and whether saving law
clauses are merely codification of the common law or the creation of new legal
rights. Courts have used a restrictive interpretation
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30. INTERPRETATION
In the1965 case of Collymore v A.G, Wooding C.J. acknowledged constitution
was supreme but nevertheless held that constitutional provisions protecting trade
union rights by providing for the rights to form and join a trade union and
freedom of assembly, did not include the right to strike which right is not
accepted under the common law
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31. INTERPRETATION
Courts applied restrictive interpretation pertaining to introductory clause of Bill
of Rights. In Girard and St. Lucia Teachers Union v AG, it was held that no redress
was available for a lack of equality on the ground of sex as it was not mentioned
except in the introductory clause of the Bill of Rights
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32. INTERPRETATION
Subsequent decisions of the Courts reflect a move away
from a restrictive attitude toward the potential of the
Constitution to create and protect new rights as evidenced
by the famous Pratt and Morgan decision in which a
generous interpretation of the general constitutional
provision against cruel and inhuman punishment was
interpreted to include circumstances where a convicted
person on death row suffers undue delay in the carrying
out of the death sentence
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33. INTERIM FUNDAMENTAL RIGHTS
ACT
The Fundamental Rights (Additional Provisions) (Interim) Act of 1999
was enacted and will remain in force until the Jamaican Constitution is altered.
The Act provides the right to vote, the right to fair and humane treatment from
public authority and the right to be granted a passport
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34. INTERIM FUNDAMENTAL RIGHTS
ACT
Since 1999, Parliament has been deliberating a Bill (originally titled the Charter of
Rights Bill) to replace the existing Bill of Rights
The Charter of Rights would incorporate the rights in the Fundamental Rights
(Additional Provisions) (Interim) Act
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35. THE CHARTER OF RIGHTS AND FREEDOMS
(CONSTITUTIONAL AMENDMENT) ACT, 2008
The Charter of Rights (Constitutional Amendment) Bill was
tabled in Parliament on March 31, 1999 and a Special Select
Committee of Parliament established on July 20, 1999 to
consider the Bill
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36. THE CHARTER OF RIGHTS AND FREEDOMS
(CONSTITUTIONAL AMENDMENT) ACT, 2008
Following the report and recommendations of the Special Select Committee, the
Bill now renamed The Charter of Rights and Freedoms (Constitutional
Amendment) Act, 2008 is now before Parliament.
See www.japarliament.gov.jm
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37. THE END
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