Accompanying Bill to Charter of Rights Approved By the Senate

KINGSTON — Following the passage of the Charter of Rights Bill in the Senate on April 1, an accompanying Bill – the Constitution Amendment Act – which seeks to amend Sections 90 and 91 of the Jamaican Constitution, was subsequently approved.

The Charter of Rights Bill repeals and replaces Chapter Three of the Jamaican Constitution, while the Constitution Amendment Act makes additional provisions for persons who have been sentenced to death.

Attorney General and Minister of Justice, Senator Hon. Dorothy Lightbourne, who piloted the Bill (Constitution Amendment Act), said it arose out of the Neville Lewis and Pratt and Morgan cases where the Privy Council upheld that where, in capital cases, the time between the sentence of death and execution exceeds five years, “there will be strong grounds for believing that the delay was such as to constitute inhumane or degrading punishment or other treatment."

“When the Governor-General exercises the prerogative of mercy on the recommendation of the Jamaican Privy Council, under Section 90 of the Constitution, the basic rule, as stated in the Pratt and Morgan case, is that section 90 and 91 of the Constitution are to be construed as imposing a duty of the Governor-General to refer the case of a person sentenced to death for the Jamaican Privy Council to consider and make recommendations as to the exercise of the prerogative of mercy,” Senator Lightbourne explained.

She said the Bill will insert in the Constitution the provision that that basic rule will continue to apply, but it will permit the date of execution of the condemned persons to be set after consideration by the Privy Council, if no mercy is recommended.

The Bill will also make provisions for certain new procedures to be followed  in relation to a person sentenced to death after the date of  the coming into force of the Constitution Amendment Act. This Bill will have no retroactive effect.

Senator Lightbourne argued that often when persons appeal to the international bodies, it takes a long time for those bodies to report back, noting that in the Neville Lewis case it was said that persons condemned should have a right to make representations to the Privy Council. “The matter is, if the Jamaican Privy Council did not await that time, then it was felt that it was unconstitutional,” she added.

“So, it (the Bill) is to deal with the provision to say that once the Privy Council sets out a prescribed procedure, as to how they will proceed, once they have complied with that procedure, that means they will not wait until the report comes back, but they will set a time frame,” the Senator informed.

She explained that once that time frame is complied with, the Governor-General, on the advice of the Jamaican Privy Council “of the prerogative of versed powers by Section 90 of the Constitution, once he complies with that, he is not inconsistent with the provisions of the Constitution of Fundamental Rights."

The Charter of Rights provides for the protection of the rights and freedoms of individuals in cases of: life, liberty and security of person; freedom of thought, conscience, belief and observance of religious and political doctrines; freedom of expression; the right to seek, distribute or disseminate information, opinions and ideas through any media; freedom of peaceful assembly and association; freedom of movement; due process of law; equality before the law; freedom from discrimination; and protection of property rights.

By ALECIA SMITH, JIS Reporter