Comments on the draft Constitution

31.JULY.09

Editor: Chapter I, section 7.

My sense of logic warns me against the addition of the words “and vice versa” as in “male includes woman and vice versa”, etc. It creates openings, easily exploited by lawyers, which are closed by its omission.{{more}}

Chapter II.

Section 5, subsection (i)

This purports to recognise the sovereign will of the people, but in truth denies it. The people may only act through processes recognised in the words of the Constitution. Any people initiative outside of that is ipso facto illegal. This makes the Constitution sovereign over the people. There needs to be a clause whereby the people, acting together, can petition the executive, the legislature and the judiciary, singly or jointly, to gain some objective.

Section 6.

“Every person has a right to participate actively in party politics.”. With these words, the draft eliminates the independent politician, and decrees that no action can be defined as political if it be not done through a political party. Every person should have the right to participate in the political life of the country.

Section 7, subsections (i) and (ii).

Freedom of the individual is not unencumbered. It must be balanced, the draft says, by the civic responsibility of the individual. That, I think, is a reasonable position. I would like to see the same balancing act with respect to the application of the rule of law: we need a statement to the effect that laws must not be offensive to the traditional Christian values of the society.

Section 10 onwards.

I have always opposed constitutional provisions spelling out such things as right to work, to education, health, etc. If my Constitution says “I have a right to work in my chosen field”, and I am unable to find such an employment opportunity, what recourse do I have to enforce my right? None, of course. So why is it called a right?

What the Constitution intends but has not dared to make explicit is that no agency of the state will stand in the way of my pursuing my legitimate goals. They are not rights, therefore, but provisions against abuse by agencies of the state. The Constitution should make this explicit, and should say what recourse I have and what administrative procedures will exist that will protect me. For example, instead of saying that I have a right to health care, the Constitution should affirm that no agency of the state shall obstruct my access to health care and then go on to list the provisions and procedures available to assist me.

Other comments will follow in the coming weeks.

Cedric B Harold
cbharold@cwjamaica.com