Constitutional Supremacy: Fact Or Fiction?
I recall a discussion with a young student in the infancy of his study of the law who was adamant that constitutional supremacy in Jamaica was a myth; he reasoned that Parliament had the sovereign power to amend the Constitution at its ‘whim and fancy’. Now on the cusp of his matriculation into the legal profession, he agrees that constitutional supremacy is a fact and remains the lifeblood of a democratic Jamaica.
The written Constitution of Jamaica is undoubtedly the most important source of Jamaican law. It confirmed the achievement of Jamaica’s independence and is the foundation on which Jamaica’s legal system and governance structure rests. “No one, not even Parliament can disobey the Constitution with impunity” (Collymore v. AG ) is perhaps the most oft-recited quote on constitutional supremacy. The Jamaican Constitution of 1962 expresses the sacrosanct nature of the supremacy principle by declaring in section 2 that “….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.”
The Judiciary (Court) is the organ constitutionally empowered to ensure that governmental action is consistent with the terms of the constitution. The Jamaican Courts (to include the United Kingdom’s Privy Council to the extent that it functions as the highest appellate court in Jamaica) have confirmed the supremacy of the Jamaican Constitution in a myriad of cases. Two notable cases which cemented the place of the Jamaican Constitution as supreme law are briefly discussed below:
- Independent Jamaica Council for Human Rights et al v. The Hon. Syringa Marshall-Burnett and the AG of Jamaica (2004): The Parliament of Jamaica passed three pieces of legislation designed to amend the Jamaican Constitution by inter alia abolishing appeals to the UK Privy Council and replacing it with appeals to the Caribbean Court of Justice (CCJ). These three (3) Acts of Parliament were passed by a two-thirds majority vote of the members of Parliament.
A challenge was made to the constitutionality of the legislative procedure undertaken and the matter was brought before the UK Privy Council for a determination on whether the procedural means by which the Parliament sought to achieve its object of abolishing appeals to the Privy Council and substituting it with a right of appeal to the CCJ followed the procedure required by the Constitution.
The Privy Council held that the stated object of Parliament could not be achieved by ordinary legislation (2/3rd majority vote of Parliament without more), because it undermined certain provisions of the Constitution which had special protection, and consequently required a special procedure—as provided in the Constitution—to alter such provisions. These provisions are designated as either entrenched or deeply entrenched, and require the Bill (proposed legislation) effecting the alteration to follow procedure (a) to (c) for amendment of ‘entrenched’ provisions and (a) to (d) for ‘deeply entrenched’ provisions.]
- The Bill must be introduced in the House of Representatives;
- A period of at least six months must elapse between the introduction of the bill into the House and its passing by that House;
- The Bill must be passed in each House by the votes of not less than two-thirds of all the members of that House;
AND [again only in the case of the DEEPLY ENTRENCHED provisions is there a requirement for]
- The bill to be approved by a majority of the electorate via referendum.
The Privy Council concluded that since the Acts as proposed also affected entrenched provisions of the Constitution, the procedure to amend entrenched provisions should have been followed. Parliament’s failure to follow the procedure for such amendments meant that the three pieces of legislation were not passed in accordance with the Constitution, and were consequently void.
- Director of Public Prosecutions of Jamaica v. Mollison (No. 2) - Here the Privy Council considered the case of Mollison, who was aged 16 at the time of the commission of the offence of murder and who had been sentenced to detention at “Her Majesty’s pleasure” pursuant to section 29(1) of the Juveniles Act 1951 as amended. Section 68(2) of the Constitution of Jamaica provides that the executive authority of Jamaica may be exercised on behalf of Her Majesty by the Governor-General. Consequently, the practice has been to read section 29(1) as providing for ‘detention during the Governor-General’s pleasure.’
The Governor General, as the representative of Her Majesty is a member of the Executive and the power of sentencing has been constitutionally reserved for the Judiciary. Section 29 of the Act was accordingly declared to be inconsistent with the separation of powers doctrine which is implicit in the Jamaican Constitution, and which stipulates that executive, legislative and judicial functions should not intertwine. By giving the Governor General—an officer of executive power—the responsibility to determine the extent of an offender’s punishment, Section 29 violated the supreme Constitution, and the provision had to be amended to provide for detention at the Court’s pleasure in order to make the provision consistent with the Jamaican Constitution.
There are a plethora of other cases which have proven that no law or physical entity is superior to the Constitution. While Parliament has the sovereign power to make laws for the peace, order and good governance of society, it is not an unfettered power; it is a power limited by the Constitution. The Judiciary, which acts as the ‘guardian of the Constitution’ has the responsibility to review legislative actions and declare them to be null and void to the extent of any inconsistency. It is the duty of legal practitioners and advocates for democracy and good governance to be Ombudsmen for state action, by challenging the constitutionality of such action in a Court of Law in matters where a violation of the supreme Constitution is suspected. The supremacy of the Constitution simply is…. has been… and will very much always be a fact!