The Constitution is the organic and fundamental law of the State, and it is the most important dictionary that every citizen of a country should examine. It is the defining source of law that contains the fundamental rights of every Jamaican citizen. It organizes the government and regulates and limits the functions of the arms of government and sovereign powers. This powerful legal document is an umbrella that safeguards citizens’ rights from being attacked by the corruptive forces that operate within the legal and political environment. Historically, the Jamaican Constitution symbolizes the transition from the hands of the British colonial rulers and the chains of injustice and servitude to an independent, self-governing society. In fact, the Jamaican Constitution came into force with the Jamaican Independence Act, 1962 of the United Kingdom Parliament, which gave the country its political independence. It contains ten chapters including, Interpretation and Effect, Citizenship, Fundamental Rights and Freedoms commonly referred to as the Bill of Rights, chapters outlining the responsibilities of the Governor General, Executive Powers, Judication, Finance and the Public Service. Jamaica as a Commonwealth Caribbean Territory adheres to the doctrine of Constitutional Supremacy whereby the Constitution validates all laws. Essentially, political rules and norms are accentuated by the Constitution’s written character, and stiffness and rigidity of the law wouldn’t be possible without it. Constitutional supremacy has a substantial significance on the creation and interpretation of laws in Jamaica, and this principle is highlighted in the case of Collymore v AG “No one, not even Parliament can disobey the Constitution with impunity. The Constitution is therefore the ultimate source of power and authority.”
Parliament cannot legislate laws that abrogate the fundamental rights of the citizens that are protected by the doctrine of Constitutional Supremacy. Ultimately, Parliament can only exercise its function within the boundary of the Constitution. The Constitution can be likened to that of a mother, and she lays down all the rules and procedures that her son which is Parliament is bound to follow. Obviously the Constitution is the parent law and Parliament cannot break its rules. Constitutional Supremacy is very instrumental because it prevents abuse and injustice from persons of higher authority. The Constitution gives parliament the authority to make laws for the peace, order and good government of Jamaica. With this power, they cannot contravene the valuable rights of the Jamaican citizens as listed in the Bill of Rights. Chapter III of the Jamaican Constitution sets out the fundamental rights and freedoms of the Jamaican citizen, and it is mentioned that “the state has an obligation to promote universal respect for, and observance of human rights and freedoms”. The words ‘respect’ and ‘obligation’ are crucial to the understanding of that section. It is the responsibility of the Jamaican authorities to show respect to the fundamental rights of Jamaican citizens and allow citizens to feel encouraged knowing that persons with a higher authority are not abusing their rights. Under Chapter III, s (2) (a) of the Jamaican Constitution “Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes those rights.” If Parliament decides to pass an Act entitled the ‘Passport Provisions Act’ and a section of that Act states that “Citizens with no CXC passes should not be granted passports”. That Act would then be void because a section of it does not conform to the provisions of the Jamaican Constitution which indicates the “right of every citizen of Jamaica to be granted a passport and not to be denied or deprived thereof except by due process of law.” The Gun Court Act 1974 was found to be ultra vires as a certain clause of the Act conflicted with the Jamaican Constitution as argued in the case of Hinds v R. The Act had disregarded the men’s constitutional right of having a fair trial, and therefore that clause of the Gun Court Act became void. In Hinds v R, It was brought forward that
“The Provisions of the Act which provided for the establishment of a Full Court Division consisting of three Resident Magistrates were in conflict with the Constitution of Jamaica and, thereof, void since their practical consequence was to give to a court composed of members of the lower judiciary jurisdiction to try and to punish by penalties, extending the offences to imprisonment for like, all criminal offences, however grave, apart from murder or treason, committed by any person who had also committed an offence under s. 20 of the Firearms Act 1967…The Parliament of Jamaica cannot, consistently with the separation of powers transfer from the judiciary to an executive body whose members are not appointed under Chapter VII of the Constitution a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.”
Henceforth, the power of the Constitution still stands; it has the highest authority and other laws are inferior to it making it the supreme law of the land. Correspondingly, the Constitution of Jamaica is a fence that secures individual rights from being exploited by higher authority, and that authority cannot breach those individual rights by passing laws that are not in line with the Constitution. And even if the citizens’ rights are contravened, the Constitution offers remedies for the breach of rights and gives citizens the opportunity to appeal case decisions to higher jurisdictions. This ensures that citizens’ rights are protected and that they are not abused by the law. Whenever Parliament decides to enforce legislation, it must adhere to the regulations provided by the Constitution, so that it does not repudiate the citizens’ fundamental human rights. Dragne in her International Journal of Juridical Sciences argued that
“The Constitution is the fundamental document that enjoys supremacy over all other legal acts. Supremacy of the Constitution is a complex concept whose content we find in its political and legal values, showing the dominance of the Constitution in the legal system, but also in the entire socio-political system of a state…the Constitution is the supreme law in the state and has an essential role in organizing the entire socio-political system, legal, economic and cultural center of the state. The Constitution is the source of all regulations in the economic, political, social and legal. Supremacy of the Constitution is a legal political group and is based on the totality of scientific “of economic, social, political and legal factors are closely related and interaction and to be seen in relation to the constitution of their indivisibility.”
As a matter of fact, this philosophical ideology of the Constitutional supremacy remains paramount. Parliament in no manner can abuse the rights of the Jamaican Citizens, and it is the Jamaican Constitution that gave Parliament the power to enact laws and not to contravene the substantial rights of the ordinary man. In the past, Parliament have passed laws that have contravened the rights of some Jamaican Citizens that were disregarded by the Constitutional Supremacy. According to an article in the Gleaner
“The Supreme Court ruled last June on a motion brought before it by a pair of lawyers that aspects of the crime bills dealing with bail, which had been passed by the Parliament to beef up the fight against crime, were unconstitutional. Several laws of Jamaica, particularly in the anti-corruption domain, have reversed the sacrosanct common-law principles of being innocent until proven guilty and of the burden of proof resting with the accuser, not the accused. Bruce Golding, while prime minister, publicly acknowledged this, but justified its necessity. Not every law is lawful as far as conformity to the superior principle of the rule of law is concerned.”
Likewise, the Judiciary arm of government is vested with the authority to interpret case decisions in respect to the provisions of the Constitution. Judges are not authorised to make laws, nonetheless they should find law in previously decided cases to base their final decisions. This is the principle of judicial precedent and is binding precedent or stare decisis which means standing by decisions. It is the duty of the court to interpret legislation and cases in line with the Constitution so that the parties of a case are given a fair trial. When the judge of the Supreme Court rules on a Constitutional issue, that judgement is automatically final and cannot be overruled by any other law. If the Constitution says that X is entitled to a sum of $1000.00 if Y trespasses on his property, the court must interpret the case of X and Y in line with that Constitutional rule. The Judge cannot pass a new law that says X is entitled to a sum of $500.00 if Y trespasses on his property, that law is not in the Constitution and it can only be void. Whittington in his journal North Carolina Law Review highlighted that
“…the Constitution is understood to stand above and against politics, a legal constraint on the power of democracy and elected officials. The judiciary emerges naturally from this perspective as an essential guardian of the constitutional order. By issuing authoritative interpretations of the Constitution, the judiciary, and especially the Supreme Court, is thought to circumscribe the sphere of politics with legal norms and ensure that the fundamental principles are respected.” Equally, Constitutional Supremacy allows for the equilibrium of power to flourish among the three branches of government. Even though the doctrine of separation of powers is not explicit within the Jamaican Constitution, this philosophical ideology still stands, and one arm of government cannot exercise the powers of the other that is fulfilled by the Jamaican Constitution. The doctrine of Constitutional Supremacy and the separation of powers doctrine are the cornerstone of the Jamaican Constitution, establishing the Westminster style of government under which the country is governed. The Jamaican Constitutional system incorporates many of the traditions of the British Colonial System, as brought to the Jamaican shores upon colonisation. Equally, Constitutional Supremacy is particularly focused on imposing limits on the government in an effort to ensure that there is restriction on the exercise of excessive and arbitrary power. Magill in her University of Virginia School of Law Public Law and legal Theory Working papers defined the separation of powers doctrine as
“…a theory about the appropriate allocation of government authority among the institutions of the national government. It means, on the one hand, classification of governmental power into three categories, among the institutions…Separation of powers, so described, is concerned with an almost limitless set of questions regarding the structure of each institution (elected or appointed), including in some cases the internal structure of the institutions’ respective powers (legislative, executive, judicial; and the ways in which the institutions interact with one another…”
The judiciary being the most important arm of the separation of powers ensures that legislative and executive powers are checked, and interprets the laws in conformity with the Jamaican Constitution, and apply them equally to the citizens of the Country. Specifically, the executive cannot determine the severity of punishment for an accused person as that function is not within their limits and can only be exercised by the judiciary arm. Henceforth, judges are not vested with the power to create laws but to use past decisions to determine the conclusion of a judicial proceeding. Ideally, the framers of the Constitution created it in regards to the functionalist sociological theory which explains that society is comprised of different groups regardless of socio-economic background that work together to achieve a goal. This theory can be aligned with the Jamaican Constitution as each branch of government exercise their powers independently for society’s stability. The arms of government should interpret statutes in line with the policies underlying the authorial structure of the Constitution, and the Constitution explicitly states the inherent powers of each branch. The Constitution as the defining law of the land creates boundaries among the executive, legislative and judiciary branches of government to ensure that the general powers of one branch does not overlap the more specific powers of the other branch. Significantly, there should be no statute passed in Jamaica that should inappropriately restrict the power of one arm of government from accomplishing its essential Constitutional functions. This is evident in the case of Hinds v R in which the Gun Court Act of 1974 was found to be unconstitutional as the Act allowed the executive arm of government to extend its powers by fulfilling the constitutional functions of the judiciary. The Act violated the separation of powers doctrine enshrined in the Jamaican Constitution by allowing Resident Magistrates jurisdiction that was authorised for Supreme Court judges under the Constitution. In general, the Constitution ensures that autonomy is given to the judiciary arm by the establishment of a Supreme Court that consist of judges and that their tenure is secured through the establishment of an independent Judicial Commission.
Given these points, Constitutional Supremacy still reigns above other laws, and those laws are inferior to the general principles contained within the Jamaican Constitution Parliament and other body with high authority cannot enforce laws that breach the citizen’s rights, as those rights are protected by the Jamaican Constitution, and the Constitution has the highest authority of the land. Constitutional Supremacy does have tremendous impact on the way laws are made and interpreted in the Jamaican Society, making it the cornerstone of the society and the Supreme law of the land. All other laws should derive their authority from this authorial written document before they come into existence. Judges should interpret case decisions in line with the provisions of the Jamaican Constitution so as to give persons a fair trial.
