The New Constitution: Will the Poor get justice?

Dr. Richard A. Byron-Cox 11.SEP.09

Before entering upon our discourse for this piece, I wish to note a serious flaw in the thinking of a section of the populace as regards their reason for voting yes for the draft constitution. With visions tunnelled by their ULP blinders, their refrain is that this is an improvement on the independence constitution and ipso facto is enough for their assent.{{more}} Jomo surprisingly is of like mind. But improvement was always a basic given of this exercise; otherwise it’s like “spinning top in mud.” This undertaking was never merely about whitewashing the 79 Version. No, Sir! This is about us fashioning for ourselves the ideals of a nation. More correctly, therefore, our judgement should be based upon three basic criteria, namely:

a) Does the draft erase essential failings of the 79 Version including the dictatorial powers of the prime minister?

b) Does it embrace our aspirations for a truly democratic society where state power is the servant of a people in pursuit of justice and freedom for all?

c) Is it the best we are capable of under the prevailing circumstances?

If one moves from desperation to poverty, improvement is undeniable. Should he now sit on his laurels? No, Sir! I say again, we must strive to make our better best. And believe me, the tide is high, the iron is hot, and “opportunity is a scarce, scarce commodity.” Enough said! Now to the main course:

Chapter II of the draft covers principles of the constitution. Recalling Section 24 that sates inter alia, “The provisions of this Chapter constitute constitutional norms… being of the nature of guiding principles of states policy.” It’s clear that Section 15 is incomplete, merely declaring that “Vincentians are entitled to have their historical, cultural and other heritage respected, protected and preserved.” It must stipulate that it is imperative that the state ensures this. We must understand that a constitutional principle is not just a norm; but an imperative legal standard or jus cogen to use the Latin term. What is the relevance of this you ask? Well, SVG is famous for selling out everything we have. Indeed Balliceaux, where thousands of our people experienced genocide, is now on the market. Our library was given away and poor people children (the rich have other means) placed in a cubbyhole at Bottom Town. The first signs of imported apartheid are most evident at Buccament Bay. And let’s us not forget the recent proposed Tobago Cays giveaway. I could go on and on but the point is made. It’s time we dispense with pretence and commit to genuine defence of our heritage and patrimony. Time to stop this prostituting of this country! It is time that the Poor get more than a bed-sheet-changing job!

Chapter III covers human rights. Section 27 (2) stipulates that a person must be informed “no later than 24 hours … of the reasons for his arrest or detention.” It is my view that the reason must be given immediately upon arrest or detention. If our constitution truly seeks to uphold the fundamental rights and freedoms of citizens, no organ of the state can be allowed to arbitrarily deny citizens their liberty and freedom for one hour, much more 24 without reason. And with the present state of affairs, where a certain section of the Police are the living portrait of a wild beast on the rampage, brutalizing the innocent poor with virtual impunity, this takes on double significance. It’s frightening that the way this norm is penned, the Police can arrest you for 24 hours, release you and one minute later arrest you again for another 24 and continue this at their pleasure, all without giving a reason. Too many poor people have entered eternity via the gates of police detention and brutality. Must we now through constitutional sanction aid and abet this social plague?

Section 27 (3) states, inter alia: “ Any person who is arrested or detained… and who is not released, shall be brought without undue delay before a court.” Subsection (5) uses the words “reasonable time.” The question is: what is undue delay and what is reasonable time? Who determines this? Here we are dealing with fundamental rights and freedom and the constitution must allow absolutely no space for them suffer state abuse. Yes, sub-section (6) foresees the possibility of “compensation,” but as regards fundamental rights and freedoms, prevention of their infringement is to be preferred to restitution. For these norms not to become weapons in the hands of the state and be used against the Poor, the constitution must specify the maximum time.

And the same term of “reasonable time” is used in section 32.1 as regards a court hearing for any person charged with a criminal offence. Long backlogs of cases are not alien to our country, and this norm does not enhance the administration of justice in this regard. And ultimately, the Poor are the victims. Indeed it is universally agreed that justice delayed is justice denied. Rights of this nature need better protection than through norms inviting the whims and fancies of some functionary of the state regarding their practical realisation. The draft with these unspecified times actually hamstrings the realisation of its stated principle at Section 13, namely, “Every person has a right to equality of treatment by public authorities.” The Poor must be defended against state abuse!

I do expect to continue my thoughts on this comparatively large chapter and indeed the rest of the draft. But as said in a previous piece, my views are open to question like any another. What is key is that we break the monopoly of the political parties on this all-important of national business, rejecting the poisoning partisan ranting diatribe that was so shamelessly displayed during last week’s so-called parliamentary debate on the Constitution Bill. It is the deepest wound inflicted on the process thus far, and the politicians have assured that that was only the smoke.