US Constitution: A model for others

US Constitution: A model for others
Published: Mon, 2011-10-03 01:42 trinidad guardian
Michael Delblond
In my own humble—and hopefully informed—view, genuine public discussion on constitutional matters ought not to be confused with or obscured by “cut and paste” exercises on the part of legal draughtsmen or the combing and probing of the Constitution’s fine print and grey areas for loopholes and ambiguities for the sole purpose of scoring sterile academic debating points simply in order to procure preferred outcome.

Today, more than ever, with the “wind of change” sweeping across the international landscape and autocratic regimes being swept aside, it’s probably advisable that a subsequent political vacuum and its possible attendant anarchy be eschewed in favour of attention being focused on the bedrock of liberal assumptions on which future constitutions are presumably based, with due respect for individual rights and legitimate freedoms. There is, in my respectful view, a lot of daylight between “political shadowboxing and snide innuendoes” and genuine inquiry into fundamental constitutional tenets, as distinct from an exercise in semantics and/or argumental and/or political expediency, in complete ignorance of the social, historical and political realities.

It’s perhaps fortunate that reference can be made to the US Constitution and particularly the amendments which constitute their Bill or Rights. A distinctive feature of the American Constitution is what is known as “the principle of separation of powers.” Interestingly, the framers didn’t intend that the executive, legislative and judicial arms of government should function in water-tight compartments but their overriding concern was “the dispersion of power” and ensuring that “checks and balances” would guarantee against the accumulation of power and lack of accountability which they deemed a sure recipe for tyranny.

Noted political scientist Prof James Q Wilson explained: “The framers (of the American Constitution) did not create three autonomous branches of government, but rather three separate institutions sharing power. For example, the President negotiates treaties with foreign governments, the Senate must approve them, and the Supreme Court has the right to declare presidential acts unconstitutional.” According to James Magregor Burns, the rationale for having the legislative and executive “at arm’s length,” so to speak, “was designed to prevent the mischief of factions and the tyranny of passionate majorities or ambitious politicians.”

Professor of History Jack N Rakove claimed that, like most other federalists, James Madison “thought that the legislatures were dominated by demagogues who sought office for reasons of ‘ambition’ and ‘personal interest’ rather than ‘public good.’ Such men as Patrick Henry (give me liberty or give me death), his great rival from Virginia, could always dupe more honest but unenlightened representatives, by veiling selfish views under the professions of public good.” As one of the major architects of the Constitution saw it, “The constant aim is to divide and arrange the several offices in such a manner so that each may be a check on the other.”

There is another view, as expressed by James L Sandquist: “A government structure drafted to frustrate would-be despots must, inevitably, also frustrate democratic leaders chosen by the people.” James Burns noted that the framers wanted a government “strong enough to protect individual liberties, but not too strong as to threaten those liberties.” When faced with the particular dilemma during the America Civil War, President Abraham Lincoln reflected thus, “Government must be strong enough to ensure its own existence, but not so strong to imperil the liberty of its citizens.” The American Constitution is not only regarded as a model for other written constitutions—even of the parliamentary or pseudo-parliamentary paradigm—but much can be learnt from a knowledge of how the framers approached their tasks and their chief concerns.

I do not refer to the “pseudo-parliamentary system” in any spirit of levity. Suppose—and we’re only supposing—that a Prime Minister is effectively much more than “first among equals,” and his/her Cabinet and parliamentarians, generally, are virtually under his/her thumb, then it would be difficult to discern the much touted “checks and balances” that are supposed to be an integral ingredient of a bona fide “parliamentary democracy” system. As far as I know, India is the world’s largest parliamentary democracy. Interestingly, the first Chief Justice of the Federal Court of India, referring to noted lawyer M Ramaswamy’s work (Fundamental Rights), opined that a “valuable part of that work was showing that fundamental rights conferred upon American citizens by the Constitution of the United States are real, effective, constantly enforced and readily enforceable.”

THOUGHTS


• According to James Magregor Burns, the rationale for having the legislative and executive “at arm’s length,” so to speak, “was designed to prevent the mischief of factions and the tyranny of passionate majorities or ambitious politicians.”
• The American Constitution is not only regarded as a model for other written constitutions—even of the parliamentary or pseudo-parliamentary paradigm—but much can be learnt from a knowledge of how the framers approached their tasks and their chief concerns.

ccj

Is the CCJ a Trojan Horse?
Published: Sunday | December 26, 2010 jamaica gleaner
Priya LeversAshford W. Meikle, Contributor

In a recent address to the Cornwall Bar Association, Justice Patrick Robinson blamed a colonial mentality for the failure of Jamaicans to abolish appeals to the Judicial Committee of the Privy Council and embrace the Caribbean Court of Justice as the country's final court of appeal.

In advancing his arguments, he quoted Marcus Garvey, saying it was better to misgovern yourself rather than be governed by another.

The eminent jurist's views echo similar sentiments that were expressed just over a year ago by the president of the Court of Appeal, Justice Seymour Panton, who described people favouring a retention of the Privy Council as being "the very wealthy, murderers and the ones with colonial mentality".

As well intentioned as they are, the views of both judges are misplaced. There has been a tendency to intellectualise the Privy Council-CCJ debate, one that betrays the intelligentsia's belief that it knows what is best for the Jamaican people. Ironically, it may be argued that this paternalism is itself one of the vestiges of colonialism - backra massa knew what was best for his innocent and naive slaves.

Recent polls suggest that a majority of Jamaicans support the Privy Council as the country's final court of appeal, and with good reason. Twice, since Independence, the Jamaican government - in a calculated and cynical strategy - has launched a direct attack on the Constitution and the civil liberties of Jamaicans.

Serious breach

The 1977 case, Hinds v R, challenged legislation passed by parliament which established the Gun Court. Effectively, the act transferred the jurisdiction of the Supreme Court over criminal firearm offences to a tribunal of resident magistrates who did not enjoy the security of tenure of Supreme Court judges, as guaranteed in the Constitution. The legislation was a serious breach of the principle of separation of powers (as implied by the Constitution) between the judiciary and the executive.

In 2004, in a brazen and Machiavellian move, the Jamaican government attempted to abrogate the constitutional rights of Jamaicans when it rushed legislation through parliament to establish the CCJ as the country's final court of appeal. This was challenged in IJCHR v Syringa Marshall-Burnett, in which it was argued that if appeals to the Privy Council were abolished, the Constitution mandated a referendum to entrench the CCJ so that its judges would enjoy the security of tenure afforded to our Supreme Court and Court of Appeal judges in the constitution.

Ironically, in both cases, it was a 'foreign' court - far removed from the corruption and graft of our politics - that stood as the bulwark for the constitutional rights of Jamaicans against government misbehaviour. Indeed, if an argument is to be made for getting rid of the vestiges of colonialism, it is that we should dismantle the Westminster system of government. It is Britain's lasting legacy to her former colonial empire, and it is one which has engendered executive dictatorship (with too much power concentrated into the hands of the prime minister) and, in the case of Jamaica, the fight for scarce benefits and political spoils.

Nationalism has always been the cri de guerre of the proponents of the CCJ. However, it is an argument which stands on feet of clay. On that issue, Marcus Garvey is wrong. Misgovernment is unacceptable and against the rule of law. Robert Mugabe is Zimbabwe's modern-day Ozymandias. It is intellectually dishonest to argue that the Privy Council is comprised of 'foreign' judges when the CCJ itself is chartered to invite other Commonwealth judges to sit in the court. The argument also ignores the fact that four Caribbean chief justices, including Jamaica's own Justice Zacca, have been appointed to the Privy Council.

Given our turbulent and violent political culture, it is a testimony to the integrity of our judiciary that it has, for the most part, remained unscathed and protected from poli-tical interference and corruption. Yet, as the IJCHR case has shown, there is a real risk that the judiciary is susceptible to the emotional appeal of nationalism. There is also the belief that our local courts, at times, take a narrow approach in its interpretation of legislation concerning constitutional rights (the Hinds case), human-rights issues (Pratt and Morgan) and the liability of the state when its servants abuse their power (the Clinton Bernard case). In each case, the profoundly unsatisfactory judgment of our local court was overturned by the Privy Council, ensuring justice for poor and disenfranchised Jamaicans.

It may be argued that the articles of the 2001 Agreement Establishing the Caribbean Court of Justice are so rigid in their provisions that political interference in the court and the manipulation of judges by Caribbean politicians will be virtually possible. Of course, it is not without a sense of irony to note that the agreement itself was written by politicians. In any event, almost all the judges will be drawn from a pool of regional jurists who, ultimately, are appointed to their local judiciary by their respective heads of government. As an example, in Jamaica, members of the judiciary are appointed by the Judicial Service Commission. Yet, four of the six members of the commission hold their positions ultimately on the recommendation of the prime minister. Services commissions are protected in the Constitution but, as the Stephen Vasciannie imbroglio demonstrated, the prime minister can force the resignation of members of a service commission at his pleasure.

Eminent jurists

There is no doubt that the region is not short of eminent jurists who are equal to their peers worldwide. However, the actions of some Caribbean judges invariably bring into question their objectivity and political agenda. In Cayman, recently, the Privy Council ruled that Justice Priya Levers should be removed from the bench as a result of her history of misconduct in making derogatory statements about Jamaican women who appeared in her court.

Earlier this year, Trinidadian High Court Judge, Justice Herbert Philip Volney (a strident critic of the former Patrick Manning government while the judge was on the bench), resigned to run on the winning ticket of Prime Minister Persad-Bissessar. In Jamaica, we have our own example, with former RM judge, Marlene Malahoo-Forte, who was appointed to the Senate.

Whether or not the CCJ will consider itself bound by previous Privy Council decisions remains to be seen. The position of the High Court of Australia is that Australia, having left the Privy Council, is not bound by previous, established rulings. In the context of the Caribbean, this is frightening. It is for this reason why the sceptics of the CCJ regard it as a Trojan horse designed by Caribbean politicians to launch an assault on our civil liberties and human rights.

It was, in fact, dissatisfaction with the Pratt and Morgan ruling and a desire to expedite hanging which provided the catalyst for the previous People's National Party government (and a number of other Caribbean governments) to hastily pass legislation to establish the CCJ as our final appellate court. But, until the Jamaican Government looks into the mirror and, like Caliban, recoils at its revolting image, many Jamaicans will feel quite justified in continuing to believe that the scale of justice is more likely to be balanced 5,000 miles away, in London, among a venerable group of 'foreign' men.

Ashford Meikle is a law student and a member of Jamaicans for Justice. Feedbackmay be sentto columns@gleanerjm.com