The review of the Constitution of Jamaica, still in progress after 16 years, is seen differently by various people:

An opportunity to close gaps and generally tie up loose ends

A change of system of government from monarchical to republican status; or

A complete review of earlier thinking with an open mind.

Referring to the open-minded option, a cross section of people were appointed as a constituent assembly in 1992 to discuss constitutional reforms. This was the first in a new attempt to open the Constitution for broader and deeper thinking, with the ultimate intention to be more profound.

After nearly 50 years of indepen-dence, we are still unprepared economically to compete in a world of growing technological advancement. Much of this unpreparedness is due not to the path originally charted by the framers of the Constitution, but to the course to which the political directorate diverted at different times as best able to fulfil this mission of independence. We are still, also, a sharply divided society, reflecting two Jamaicas waiting to become one nation.

A difference of interpretation of the mission of Independence lay at the root of the problem. Those of us who first held the reins of leadership in independent Jamaica viewed our mission as the creation of greater substance, a generation of growth and production of a bigger cake, so to speak.

Another set of leaders saw their mission primarily as sharing the cake in more equitable slices. As the population grew and the cake failed to increase likewise, the slices became smaller and eventually too thin to sustain the strategy of a system which placed distribution before growth. Eventually, the system collapsed.

This is not a story of Jamaica. It is a reflection of a worldwide ideological position between systems of governance portraying more closed than open societies as played out in Jamaica and elsewhere in the world. We now approach the end of 50 years of Independence with a legacy of the debris from that period of conflict, leaving the focus of concern still on economic deprivation, social desperation and a divided nation. These overriding concerns have overshadowed the attempts to chart successful courses.

Apathetic yawn

As a consequence, focusing on constitutional reforms generally meets with an apathetic yawn, lack of understanding, disbelief that the system we know should be changed for one we don't know; or impatience with the thought that time and effort are being spent on matters which are not currently high on the agenda of concern.

But, relentlessly, we still continue to focus attention on the process of constitutional reform in a determined attempt to chart a new direction to unleash the energies necessary to create a new dynamic for the 21st century.

We are today where we were in the late 1930s, in the tumult of the emergence of economic and political rights for the people; in the late '50s, struggling with conflicting views on federation and independence; and throughout the '70s, faced with a divisive ideological shift towards a more closed society. Now, we are at another crossroads searching again for a new dynamic to refocus our energies. As we see it, this new dynamic, unleashing fresh energy, must be the sublime goal of the process of constitutional reform.

The new dynamic

The valve to unleash new energies to propel the country forward has its roots in the turmoil and abuses of the 1970s. It was in that decade that Jamaicans awoke to the realisation that the Constitution of Jamaica, drafted for Independence in 1962, was devised for a much kinder and gentler nation. Certainly, it was written in the shadow of those unwritten understandings governing the United Kingdom, which ensured that British subjects would need no written constitution. Everyone knew where the lines of misconduct were drawn; and if the letter of the law did not spell out precisely the limits of power, no one would misuse the laxity of the law to abuse the para-meters of power because that simply wouldn't be cricket. Long and great traditions established the permissible boundaries of tolerance.

As a young nation, we have no such long and great traditions of our own. We borrow from other nations those values which govern society, rejecting what we wish, often to abuse the system. That plainly was the mode followed to instigate the most draconian violation of human rights in our nation's history when, on June 19, 1976, an infamous state of emergency was declared on the flimsiest of grounds to justify the meanest of ends: political survival. Jamaicans learned then that our Constitution was elastic and could be stretched to the shape of many unconstitutional conveniences.

We learned, too, in that year, that something had to be done to limit the elasticity of our Constitution, which is not so much defective in what it says, but that it speaks in a soft voice where a stronger, firmer and more definitive position should be stated.

The mission before us then is to remove all areas of the abuse of power in a constitution which is drafted with some flexibility in the expectation that loopholes would be covered by patriotic understanding and not be exploited with devious political intent.

For the most part, the Constitution is seen by Jamaicans as a protector of fundamental rights and freedoms. Yet, few persons are aware of the particular rights and freedoms for which Chapter III of the Constitution makes provision. In great part, this is due to the structure of Chapter III in which several fundamental rights and freedoms are qualified by limitations which permit the abrogation, abridgement or infringement of rights and freedoms by the state in the public interest. The result is that a clear understanding of rights and freedoms is lost in the limitations and circumscription.

Human rights

To clarify this jumble, I submitted to the Constitutional Reform Commission a listing of all rights and freedoms in a simple presentation as a charter which could be presented explicitly. This format could be reproduced as a poster for schools to enable awareness of fundamental rights and freedoms to begin at a critical age.

The clarification of rights and freedoms, however, would not close loopholes which allow abuses by the state.

The basis on which this paradoxical position rested was the expectation of the people that all rights were absolute and inalienable and could not be shackled by the state. But it is recognised that for effective functioning, the state must reserve some authority to qualify the rights and freedoms which citizens require, subject to well-defined safeguards against abuse. This is particularly so in times of peril and emergency. These reservations are widely drawn and open to varied interpretations which allow for wide-scale abuse, as we experienced in the 1976 State of Emergency, and continue to experience to a lesser degree.

Judicial interpretation

To overcome this problem, a new formulation to express the reservations which could be imposed on rights and freedoms by the state was sought through comparison with other constitutions. A combination of the Canadian and Trinidadian constitutions proved most suitable, having the benefit of judicial interpretation on which we could rely.

The result was a new statement on fundamental rights and freedoms in the Jamaican Constitution, setting out a single saving clause in a preamble governing all rights and freedoms, as follows:

"We affirm that save only for laws that are required for the governance of the state in periods of public disaster and public emergency, or as may be demonstrably justified in a free and democratic society, Parliament shall pass no law and no organ of the state shall take any action which abrogates, abridges or infringes" (any of the fundamental rights and freedoms listed in the Charter). In the final draft of the bill, this eloquent and succinct formulation was reworded prosaically to provide for the legal nuances, but without altering the substance and intent.

(Part 2 next week).

Edward Seaga is a former prime minister. He is now a distinguished fellow at the UWI and pro chancellor at UTech. Feedback may be sent to odf@uwimona.edu.jm or columns@gleanerjm.com.