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Lecturer: Shirley-Ann Eaton
THE JAMAICA (CONSTITUTION)                 ORDER IN COUNCIL, 1962Order in Council highest form of delegated legislation an...
DEFINITION OF CONSTITUTION                              A Constitution is the:body of law containing rules which determine...
SUPREMACY OF JAMAICAN            CONSTITUTION-          SUPREME LAW CLAUSE     Section 2 of Chapter 1 of JamaicanConstitut...
SUPREMACY OF CONSTITUTION-                           SUPREME LAW                       The Jamaican Constitution is:      ...
THE JAMAICAN CONSTITUTION                                  The Constitution:defines citizen’s rights and the nature and fo...
ALTERATIONS TO                      CONSTITUTIONSection 49 of Constitution allows for alteration by Act of  Parliament pas...
ALTERATIONS TO                              CONSTITUTIONSpecial Acts of Parliament must be passed by not less than two-thi...
ALTERATIONS AND SUPREMACY                    OF CONSTITUTION  debate surrounding sections 49 and 50 as it pertains to    s...
ALTERATION AND SUPREMACY               OF CONSTITUTIONSection 48 of Constitution gives Parliamentwide powers to make laws ...
SEPARATION OF POWERS    Principle of separation of powers embodied in Constitution confirmed by Privy Council in case of  ...
SEPARATION OF POWERS  Constitution provides for the establishment of the   legislative, executive, and judicial arms of th...
ENTRENCHMENTEntrenchment is the protecting of some provisions of a Constitution against change by the ordinary legislative...
ENTRENCHMENTOrdinary legislative process refers to simple majority vote i.e. a majority of those members of a House of Par...
ENTRENCHMENT                       N.B.(Jamaica)Quorum of both Houses of Parliament set by Standing                Orders ...
ENTRENCHMENT           Entrenchment entails requirements varying in complexityIncludes special formulae, delaying procedur...
ENTRENCHMENT Example of special formula in Jamaican Constitution where special recital or  words of enactments are needed....
ENTRENCHMENTA Bill for the amendment of the Constitution must have aspecial recital, that is, `Be it enacted by the Queen’...
ENTRENCHMENT Alteration of the Bill of Rights by way of a constitutionalamendment requires a two-thirds majority of both H...
ENTRENCHMENTIn addition to aforementioned three month ‘delaying procedure’ amendments ofsome provisions require the three ...
ENTRENCHMENT  Alterations requiring a referendum vote, for example, the entrenching section    and the supreme law clause,...
SPECIAL PARLIAMENTARY                        MAJORITIES    Absolute Parliamentary Majority – a majority of all members of ...
SPECIAL PARLIAMENTARY                               MAJORITIES   Two-thirds Parliamentary Majority – two-thirds of all the...
JUDICIAL REVIEW   Court is entrusted with duty to examine activities by the State and decide whether activities are incons...
JUDICIAL REVIEW   Under concept of rule of law (i.e.the exercise of state power according to lawand the subjugation of sta...
JUDICIAL REVIEW Intra Vires - where legislation is found to be in conformity with ConstitutionUltra Vires – where legislat...
CONSTITUTION - CHAPTERSChapter 1 – Interpretation and effect of Constitution               Chapter 2- Citizenship  Chapter...
CHAPTER 3 – FUNDAMENTAL                          RIGHTS AND FREEDOMS  Bill of Rights provisions reflect the direct influen...
INTERPRETATION  Controversy has developed concerning saving law clauses found in Jamaican  and other Commonwealth Caribbea...
INTERPRETATION   In the1965 case of Collymore v A.G, Wooding C.J. acknowledged constitutionwas supreme but nevertheless he...
INTERPRETATION Courts applied restrictive interpretation pertaining to introductory clause of Billof Rights. In Girard and...
INTERPRETATION  Subsequent decisions of the Courts reflect a move away  from a restrictive attitude toward the potential o...
INTERIM FUNDAMENTAL RIGHTS                                ACT  The Fundamental Rights (Additional Provisions) (Interim) Ac...
INTERIM FUNDAMENTAL RIGHTS                                 ACTSince 1999, Parliament has been deliberating a Bill (origina...
THE CHARTER OF RIGHTS AND FREEDOMS         (CONSTITUTIONAL AMENDMENT) ACT, 2008The Charter of Rights (Constitutional Amend...
THE CHARTER OF RIGHTS AND FREEDOMS                   (CONSTITUTIONAL AMENDMENT) ACT, 2008Following the report and recommen...
THE END 37
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The constitution of jamaica

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  1. 1. Lecturer: Shirley-Ann Eaton
  2. 2. THE JAMAICA (CONSTITUTION) ORDER IN COUNCIL, 1962Order 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 CouncilJamaica (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” 2
  3. 3. DEFINITION OF CONSTITUTION 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 3
  4. 4. SUPREMACY OF JAMAICAN CONSTITUTION- SUPREME LAW CLAUSE Section 2 of Chapter 1 of JamaicanConstitution provides that “Subject to the provisions of sections 49 and 50 of this Constitution, if any other law isinconsistent with this Constitution, thisConstitution shall prevail and the other law shall, to the extent of the inconsistency be void” 4
  5. 5. SUPREMACY OF CONSTITUTION- SUPREME LAW The Jamaican Constitution is: the supreme law of the landthe fundamental law by which all other laws are measured It is the basis of the Rule of Law 5
  6. 6. THE JAMAICAN CONSTITUTION The Constitution:defines citizen’s rights and the nature and form of the legal and political systems lays down mandatory procedures for government provides redress for violations of basic human rights sets the foundation for judicial review 6
  7. 7. ALTERATIONS TO CONSTITUTIONSection 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 alteration Section 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 7
  8. 8. ALTERATIONS TO CONSTITUTIONSpecial Acts of Parliament must be passed by not less than two-thirds of all the members of both Houses 8
  9. 9. ALTERATIONS AND SUPREMACY OF CONSTITUTION debate surrounding sections 49 and 50 as it pertains to supremacy of the constitution versus parliamentary supremacy broad view propones there is no constitutional limitation on legislative supremacy of Parliament for although Constitution is supreme, it is not immutable and doesprovide for future alterations by the people acting through their representatives in Parliament but 9
  10. 10. ALTERATION AND SUPREMACY OF CONSTITUTIONSection 48 of Constitution gives Parliamentwide powers to make laws for the peace,order and good government of Jamaicahowever these powers are subject to the provisions of the Constitution 10
  11. 11. SEPARATION OF POWERS 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 theJamaican 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 11
  12. 12. SEPARATION OF POWERS 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 judiciaryConstitution guarantees the autonomy of the judiciary by the establishment of a Supreme Court and its Judges and security of tenure of judiciary throughestablishment of an independent Judicial Commission 12
  13. 13. ENTRENCHMENTEntrenchment is the protecting of some provisions of a Constitution against change by the ordinary legislative process Court in Hinds v R referred to significance ofentrenchment 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 theParliament and the consent of a larger proportion of its members than the bare majority required for ordinary laws.’ 13
  14. 14. ENTRENCHMENTOrdinary 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 asimple majority cannot change provisions of any Caribbean Constitution (except for certain clauses in T &T Constitution) 14
  15. 15. ENTRENCHMENT N.B.(Jamaica)Quorum of both Houses of Parliament set by Standing Orders of both Houses Quorum for House of Representatives – 16 Quorum for Senate – 8 No. of Representatives – 63No. of Senators – 21 (13 –majority party; 8 –opposition) 15
  16. 16. ENTRENCHMENT Entrenchment entails requirements varying in complexityIncludes special formulae, delaying procedures, special parliamentary majorities, Senate vetoes, and referenda requirements 16
  17. 17. ENTRENCHMENT 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 theadvice and consent of the Senate and the House of Representatives of Jamaica, and by the authority of the same as follows:-’ 17
  18. 18. ENTRENCHMENTA Bill for the amendment of the Constitution must have aspecial recital, that is, `Be it enacted by the Queen’s MostExcellent 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 theConstitution of Jamaica, and by the authority of the same, as follows:-’ Omission of this special recital renders any amendment void and of no effect. 18
  19. 19. ENTRENCHMENT Alteration of the Bill of Rights by way of a constitutionalamendment requires a two-thirds majority of both Houses as well as a `delaying procedure’ whereby Bill cannot besubmitted 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 ofthe Bill in the House and a further period of three monthshas elapsed between the conclusion of that debate and the passing of the Bill by the House 19
  20. 20. ENTRENCHMENTIn addition to aforementioned three month ‘delaying procedure’ amendments ofsome provisions require the three month delaying procedure as well as a furtherthree month delay between the second reading of an amending Bill in the House of Representatives and its passage in that House 20
  21. 21. ENTRENCHMENT Alterations requiring a referendum vote, for example, the entrenching section and the supreme law clause, require the amending Bill to be submitted to areferendum not less than two nor more than six months, after its passage by both Houses 21
  22. 22. SPECIAL PARLIAMENTARY MAJORITIES 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 forelectors, laying down disqualifications for and the tenure of members of Parliament 22
  23. 23. SPECIAL PARLIAMENTARY MAJORITIES 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 inconsistentwith the Fundamental Rights and Freedoms provisions in sections 13-26 but arenot void for inconsistency as they are not literal amendments to the Constitution) 23
  24. 24. JUDICIAL REVIEW 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 24
  25. 25. JUDICIAL REVIEW Under concept of rule of law (i.e.the exercise of state power according to lawand the subjugation of state power to the Constitution) Courts have and continueto 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 25
  26. 26. JUDICIAL REVIEW Intra Vires - where legislation is found to be in conformity with ConstitutionUltra Vires – where legislation is found to be unconstitutional and thus null and void 26
  27. 27. CONSTITUTION - CHAPTERSChapter 1 – Interpretation and effect of Constitution Chapter 2- Citizenship Chapter 3 – Fundamental Rights and Freedoms Chapter 4 – The Governor-General Chapter 5 – Parliament Chapter 6 – Executive Powers Chapter 7 – The Judicature Chapter 8 – Finance Chapter 9 – The Public Service Chapter 10 - Miscellaneous 27
  28. 28. CHAPTER 3 – FUNDAMENTAL RIGHTS AND FREEDOMS Bill of Rights provisions reflect the direct influence of international sources oflaw on the legal system in Jamaica and the rest of the Commonwealth CaribbeanConstitution confers a right to approach the High Court for redress with respect to alleged contraventions of the fundamental human rights provisions 28
  29. 29. INTERPRETATION Controversy has developed concerning saving law clauses found in Jamaican and other Commonwealth Caribbean Constitutions and whether saving lawclauses are merely codification of the common law or the creation of new legal rights. Courts have used a restrictive interpretation 29
  30. 30. INTERPRETATION In the1965 case of Collymore v A.G, Wooding C.J. acknowledged constitutionwas 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 30
  31. 31. INTERPRETATION Courts applied restrictive interpretation pertaining to introductory clause of Billof Rights. In Girard and St. Lucia Teachers Union v AG, it was held that no redresswas 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 31
  32. 32. INTERPRETATION Subsequent decisions of the Courts reflect a move away from a restrictive attitude toward the potential of theConstitution 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 32
  33. 33. INTERIM FUNDAMENTAL RIGHTS ACT The Fundamental Rights (Additional Provisions) (Interim) Act of 1999was 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 33
  34. 34. INTERIM FUNDAMENTAL RIGHTS ACTSince 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 34
  35. 35. THE CHARTER OF RIGHTS AND FREEDOMS (CONSTITUTIONAL AMENDMENT) ACT, 2008The Charter of Rights (Constitutional Amendment) Bill wastabled in Parliament on March 31, 1999 and a Special Select Committee of Parliament established on July 20, 1999 to consider the Bill 35
  36. 36. THE CHARTER OF RIGHTS AND FREEDOMS (CONSTITUTIONAL AMENDMENT) ACT, 2008Following 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 36
  37. 37. THE END 37
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