the constitution of jamaica
DESCRIPTION
its about the constitution of JamaicaTRANSCRIPT
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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