by Claudette Joseph
On October 27th 2016 Grenadians will be asked to vote on the captioned Bill affecting our fundamental rights and freedoms guaranteed by the Constitution. The intent of this Bill is to refine the provisions of the Constitution that protect our fundamental rights and freedoms. That is, Chapter 1 of the 1973 Grenada Constitution Order.
The Bill also proposes to include a new Chapter 1A titled, “Directive Principles of State Policy” and a new Chapter 1B titled, “Gender Equality.”
The fundamental rights and freedoms in our Constitution are provided for at sections 1 to 15 and are drawn directly from the United Nations Declaration of Human Rights, resolution 217A proclaimed on December 10th 1948. Fundamental rights and freedoms are those common, basic, inalienable rights that it is recognised must be enjoyed by all as the basis for freedom, justice and human dignity.
Observance of these fundamental rights and freedoms protects citizens from having to resort to rebellion against tyranny and oppression. When these fundamental rights are not observed, chaos and barbarism ensue.
The 1985 Grenada Constitution Review Commission expressed the view that the provisions are quite adequate and should not be interfered with. The 2006 Constitution Review Commission recommended an expansion of the fundamental rights and freedoms but did not specify which rights should be expanded.
It was within CRAC’s mandate to recommend expansion of the fundamental rights and freedoms to Cabinet.
What the Bill proposes:
The proposed Bill is expressed to be an Act to alter the Constitution to make better provisions for the rights and freedoms of the individual.
The Bill firstly proposes to insert a new Part titled: “Foundational” which will be the first 2 sections of the Constitution. Section 1 expresses what is already understood as our system of Government, that is, a democracy where the basis of Government is the will of the people. It also proposes to move section 106, the Supreme Law clause up to section 2.
The Bill proposes to include and spell out in section 1 of Chapter 1, that every person in Grenada shall enjoy the fundamental rights regardless of “disability”, “language” “ethnicity”, “place of birth”, “national or social origin”, “religion” and “social class”.
These rights are proposed to be added to the existing rights of: race, political opinions and sex. The words “creed” and “place of origin” are proposed to be removed. If successful on the referendum, this will expand and refine the existing rights and freedoms with the inclusion of: “disability”, “language”, “ethnicity” and “social class”.
It will also refine the section with the substitution of “religion” for creed, and “place of birth”, “national or social origin” for place of origin. It is to be noted that this section itself is not enforceable but most of the rights mentioned in it are enforceable under section 13.
Section 3 of the Constitution deals with the right to personal liberty, the Bill proposes to expand that section. Section 3(2)(a) is proposed to be amended to provide that a person who is arrested shall be informed: “without delay at the time of his arrest or detention, in a language that he understands….” of the reason for his arrest or detention; as opposed to: “as soon as reasonably practicable, in a language that he understands…” as is now the case.
The question here is: what mischief or existing deficiency is intended to be addressed by this amendment? While the current language is admittedly wide, there appears to be no issue with the practical application of this section. On the other hand, with the proposed amendment, it will mean that a person’s constitutional right will be violated if, based on the circumstances surrounding his arrest, it is not possible for him to be immediately, at the time of his arrest, informed of the reason for the arrest.
For example, if the arresting officer does not speak the language of the person being arrested or vice versa, his constitutional right will be breached if the arrest proceeds. The practical application of this new section may result in some unavoidable constitutional breaches. Noteworthy, is the fact that this proposed change will not affect the situation where a person can be detained for up to 48 hours without being charged with an offence.
Subsection 2 (b) of the new section also adds the right of an arrested individual to promptly retain and instruct a lawyer at his expense. Although this will be new to the Constitution, in practice, this is what already obtains.
The 2006 commission recorded strong calls from the public that accused persons should have a constitutional right to legal representation even if they cannot afford it. The commission declined to make this recommendation, perhaps in consideration of the financial ramifications for the State.
The suggested amendment to Section 8 is minor but has possible far reaching consequences. The Constitution at present guarantees any person charged with a criminal offence the right to a fair hearing, within a reasonable time, by an independent and impartial court established by law.
The proposal is to insert the words “and in accordance with due process…” This means that in addition to taking a procedural point where due process is not followed, an accused person may also take the position that his constitutional right to due process has been breached.
There is also the proposal to amend section 8 to include the right to remain silent after being charged. The reason for the proposal is not clear because this is already part of the law. Rule 2 of the Judges Rules sets out the procedure on being charged, which includes informing the person of their right to remain silent.
One wonders whether in making these provisions enforceable rights under the Constitution, due consideration was given to the costs implications for the State and the possibility of an increase in Constitutional cases before the courts, in an already backed logged system; or whether, the implications for the police in the execution of their duties were duly considered.
Part 2 of this article will address the proposed amendments to sections 10 and 11 of the Constitution and the new sections 13A, 13B and 13C.
(Claudette Joseph is a local attorney-at-law who is associated with Amicus Attorneys)