Thu | Jun 4, 2020

Editorial | Court ruling expands constitutional rights

Published:Thursday | April 9, 2020 | 12:00 AM

In a court system still clogged with work-a-day cases, there is usually little focus on idea rulings, or significant declarations by judges that will likely enhance the rights of citizens. Last week was a case in point.

In the midst of the populist assault on the Court of Appeal – without reference to the substance of its judgment – for upholding the murder conviction of dancehall deejay Vybz Kartel, the court again signalled to the State that it will bear the burden of proof, if challenged, that laws that infringe constitutional guarantees are “demonstrably justified in a free and democratic society”.

That, essentially, was the test the Full Court applied a year ago when it struck down the National Identification and Registration Act, upon which the Holness administration was to build its National Identification System (NIDS). The Government didn’t appeal.

Ironically, on the same day that Chief Justice Bryan Sykes was delivering the NIDS ruling, the Court of Appeal, using the same logic, though in a different context, held that Rule 12.13 of the Supreme Court’s Civil Procedure Rules was unconstitutional. According to Justice Carol Edwards, the rule, in circumstances of a category of default judgments, was restricted because in cases of default judgments “the right of a defendant to be heard on the issue of damages in a way which renders the right to be heard is non-existent”.

That, Justice Edwards argued, was counter to the constitutional right to a hearing before the courts. Given this finding, she argued, Rule 16.2(2) would also be unconstitutional “insofar as it only provides for notice to the claimant only”.

Significantly, the Full Court had arrived at the same conclusion some time earlier in a separate case, for which Justice David Batts wrote the major opinion. That case appeared not to have reached appeal. Batts’ opinion was liberally cited by Justice Edwards.

The intention of NIDS was for every Jamaican resident to be logged in a database, identified by demographic information and biometric data, such as fingerprint, iris scans, or other markers. Each resident would receive an ID card with a unique number and encrypted with demographic and biometric information, without which they couldn’t do business, or receive benefits from the Government.

Critics argued that the mandatory requirement for residents would infringe on the right to privacy. Further, the fact that Jamaicans living abroad could do business with the Government without the NIDS ID would assault on natural justice and equity and equality before the law. The Full Court agreed.

In NIDS, Justice Sykes broke new ground how Jamaican courts approached the test for the constitutionality of laws. Under the old Bill of Rights, as well as established jurisprudence, the burden of proof that legislation was unconstitutional lay with the challenger. The bar was high. The starting presumption was that Parliament acted in the best interest of the society.


The language of the new Charter of Rights and Fundamental Freedoms assumes that while there may be laws that impinge on rights guaranteed by the Constitution, these must be capable of meeting the test of justifiability, for which Justice Edwards set out the standards. So, once a challenger proves a law to be prima facie unconstitutional, it is for the Government to provide justification for its existence.

In NIDS, Justice Sykes noted that, up to then, the Supreme Court hadn’t departed completely from the old test of constitutionality. He likened its approach to an attempt at riding “two horses at the same time – an impossible feat”. In the meantime, no case had reached the Appeal Court for a definitive ruling on the matter. “The time has now come for the Supreme Court to take a clear and unambiguous position on the matter,” he said in asserting the Supreme Court’s new position.

He, however, would probably have been unaware of Justice Edwards’ also simultaneous opinion at the Appeal Court, even though there were nuanced differences in the issues being decided on.

While the issues in the Kartel case ultimately didn’t require an application of the new test of constitutionality, the Court of Appeal observed the shifting jurisprudence, as well as what route to follow if a constitutionality challenge arose in the future. Said the court: “There seems to be a reversal of the onus of proof as regards constitutionality, in that the Charter places the onus on the party seeking to assert justification of the curtailment; and (b) there is no provision which exempts previously existing law from the entitlement to the right to privacy.”

There are times for reasons to complain about our courts, but they are done an injustice when judges are broad-brushed with incompetence and their jurisprudence vilified.