Lecturer: Shirley-Ann Eaton

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”

THE JAMAICA (CONSTITUTION) ORDER IN

COUNCIL, 1962

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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

DEFINITION OF CONSTITUTION

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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”

SUPREMACY OF JAMAICAN

CONSTITUTION-SUPREME LAW

CLAUSE

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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

SUPREMACY OF CONSTITUTION- SUPREME

LAW

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The Constitution:defines citizen’s rights and the nature and form of the legal

and political systemslays down mandatory procedures for government

provides redress for violations of basic human rightssets the foundation for judicial review

THE JAMAICAN CONSTITUTION

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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

alterationSection 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

ALTERATIONS TO CONSTITUTION

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Special Acts of Parliament must be passed by not less than two-thirds of all the members of both Houses

ALTERATIONS TO CONSTITUTION

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debate surrounding sections 49 and 50 as it pertains to supremacy of the constitution

versus parliamentary supremacybroad 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

ALTERATIONS AND SUPREMACY OF CONSTITUTION

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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

ALTERATION AND SUPREMACY OF CONSTITUTION

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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 ConstitutionJudgment represents first instance in which an Act of Parliament by an independent Caribbean

State was invalidated as unconstitutional

SEPARATION OF POWERS

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Constitution provides for the establishment of the legislative, executive,

and judicial arms of the stateBill 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

SEPARATION OF POWERS

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Entrenchment is the protecting of some provisions of a Constitution against change by

the ordinary legislative processCourt 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.’

ENTRENCHMENT

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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)

ENTRENCHMENT

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N.B.(Jamaica)

Quorum of both Houses of Parliament set by Standing Orders of both Houses

Quorum for House of Representatives – 16Quorum for Senate – 8

No. of Representatives – 63No. of Senators – 21 (13 –majority party; 8 –

opposition)

ENTRENCHMENT

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Entrenchment entails requirements varying in complexity

Includes special formulae, delaying procedures, special parliamentary majorities, Senate vetoes, and referenda

requirements

ENTRENCHMENT

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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:-’

ENTRENCHMENT

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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.

ENTRENCHMENT

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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

ENTRENCHMENT

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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

ENTRENCHMENT

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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

ENTRENCHMENT

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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

SPECIAL PARLIAMENTARY MAJORITIES

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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)

SPECIAL PARLIAMENTARY MAJORITIES

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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

JUDICIAL REVIEW

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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

JUDICIAL REVIEW

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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

JUDICIAL REVIEW

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Chapter 1 – Interpretation and effect of ConstitutionChapter 2- Citizenship

Chapter 3 – Fundamental Rights and FreedomsChapter 4 – The Governor-General

Chapter 5 – ParliamentChapter 6 – Executive Powers

Chapter 7 – The JudicatureChapter 8 – Finance

Chapter 9 – The Public ServiceChapter 10 - Miscellaneous

CONSTITUTION - CHAPTERS

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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

CHAPTER 3 – FUNDAMENTAL RIGHTS AND FREEDOMS

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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

INTERPRETATION

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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

INTERPRETATION

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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

INTERPRETATION

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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

INTERPRETATION

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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

INTERIM FUNDAMENTAL RIGHTS ACT

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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

INTERIM FUNDAMENTAL RIGHTS ACT

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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

THE CHARTER OF RIGHTS AND FREEDOMS (CONSTITUTIONAL

AMENDMENT) ACT, 2008

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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

THE CHARTER OF RIGHTS AND FREEDOMS (CONSTITUTIONAL

AMENDMENT) ACT, 2008

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THE END

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