For decades now, various citizens groups have been engaged in verbal conflict with the Government of Jamaica. This protracted debate, is centralized around the citizens’ right to participate in the decision making process, particularly when the issues at hand could be perceived to be inimical to the citizens’ interests. In most cases, the issue involves a lack of public consultation or a flawed process of consultation and the casual indifference with which concerns are treated by the regulatory agencies. The experiences of the residents and/or owners of property in the Golden Triangle and the residential sections of New Kingston are no different, with the state authorities, from time to time lending only a patronizing ear and then proceeding to dismiss the expressed concerns, as many would an errant child and proceed apace. This has also been reflected in the current controversy regarding the Burnt Ground cemetery in Hanover and the stance adopted up to this point by the State. Though this matter has been tested before the Courts, some of the state entities continue to operate as if there are no guidelines governing their activities and that they are a law unto themselves. However as Justice Bryan Sykes noted in the matter of Northern Jamaica Conservation Trust et al v NEPA et al (2005) -
“…in Jamaica, the Constitution is but one of the sources of this rights conscious age. In formulating the matter in this way, the aim is not a demand for perfection in human affairs but rather about ensuring that the executive behaves lawfully. No one has argued nor indeed could argue that the executive has the right to breach the law (even if the law is “merely” procedural) when making a decision it is authorised to make. This way of looking at the matter benefits the citizen or stranger who will know that he is not subject to whimsical and irrational decisions. This is not encroaching on the domain of the executive. It is about ensuring that executive power is used in accordance with the law. It enhances the rule of law and does not derogate from it which in turn can only enhance the quality of life of the citizenry. This is one of the natural outcomes of a constitutional democracy built on the rule of law”.
Indeed, for most of the concerns being expressed by the Jamaican citizen over time, in terms of urban planning and development issues, the law has been very clear and the precedents exist to guide the process. For example on the matter of public consultation, for which most communities continue to agitate, the legal standards are clear as demonstrated in the case of R v Brent London Borough Council where it was held that -
“It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken”: R v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168.
Further the law is also clear on matters involving promises made by public bodies exercising a statutory function such as NEPA. Indeed, as has been experienced by the citizens of Seymour Lands in particular, regarding the Public Consultation that was held on August 21, 2006 and the subsequent dialogue involving a joint select panel, from both the citizens and NEPA, where particular promises were made by the NEPA representatives and subsequently reneged upon, after good faith negotiations. Specifically, the residents’ views were solicited at the Public Consultation and they expressly and unanimously rejected the higher density ratios and setback distances being proposed by NEPA. However those density ratios and setback distances are currently being provided to developers as guidelines, though there has been no alteration in the position of the citizens.
Indeed, implicit in the notion of a Public Consultation, is a reasonable expectation that the solicited views of the participants, are deemed critical to the proposals at hand and not an exercise in sophistry, geared towards the legitimization of a pre-determined position, albeit retroactively. This is particularly germane in matters where the long term impact can be deemed to be inimical to the citizens’ interests. Further if there was any significant change in circumstances which would have legitimized this stance, the principles of good governance and the legal standard outlined above, would necessitate that the residents be advised by NEPA of such circumstances. However no such consultation has been held. In this regard Justice Sykes notes in his ruling on Northern Jamaica Conservation Trust et al v NEPA et al (2005) that -
“The Court of Appeal in the UK has held that where a public body exercising a statutory function had made a promise and that such promise induced a legitimate expectation of a benefit that was substantive, any frustration of that expectation would be an abuse of power unless there was an overriding interest justifying the departure from what was expected”.
Therefore, since the legal standards exist; they should be used to guide the mode of operation by the State regulatory agencies, so that the current disparaging stance regarding the rights of the citizenry in having a say in the development process, can be addressed once and for all. Jamaica is a nation of laws and for the democracy to survive all parties are duty bound to show due deference to the law and not adopt anti-social postures which could ultimately undermine the principles upon which the Constitution is founded.
Disclaimer: The article above is not intended to constitute legal advice and therefore persons are encouraged to consult with an Attorney-at-Law before acting upon any of the legal issues outlined above.
“…in Jamaica, the Constitution is but one of the sources of this rights conscious age. In formulating the matter in this way, the aim is not a demand for perfection in human affairs but rather about ensuring that the executive behaves lawfully. No one has argued nor indeed could argue that the executive has the right to breach the law (even if the law is “merely” procedural) when making a decision it is authorised to make. This way of looking at the matter benefits the citizen or stranger who will know that he is not subject to whimsical and irrational decisions. This is not encroaching on the domain of the executive. It is about ensuring that executive power is used in accordance with the law. It enhances the rule of law and does not derogate from it which in turn can only enhance the quality of life of the citizenry. This is one of the natural outcomes of a constitutional democracy built on the rule of law”.
Indeed, for most of the concerns being expressed by the Jamaican citizen over time, in terms of urban planning and development issues, the law has been very clear and the precedents exist to guide the process. For example on the matter of public consultation, for which most communities continue to agitate, the legal standards are clear as demonstrated in the case of R v Brent London Borough Council where it was held that -
“It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken”: R v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168.
Further the law is also clear on matters involving promises made by public bodies exercising a statutory function such as NEPA. Indeed, as has been experienced by the citizens of Seymour Lands in particular, regarding the Public Consultation that was held on August 21, 2006 and the subsequent dialogue involving a joint select panel, from both the citizens and NEPA, where particular promises were made by the NEPA representatives and subsequently reneged upon, after good faith negotiations. Specifically, the residents’ views were solicited at the Public Consultation and they expressly and unanimously rejected the higher density ratios and setback distances being proposed by NEPA. However those density ratios and setback distances are currently being provided to developers as guidelines, though there has been no alteration in the position of the citizens.
Indeed, implicit in the notion of a Public Consultation, is a reasonable expectation that the solicited views of the participants, are deemed critical to the proposals at hand and not an exercise in sophistry, geared towards the legitimization of a pre-determined position, albeit retroactively. This is particularly germane in matters where the long term impact can be deemed to be inimical to the citizens’ interests. Further if there was any significant change in circumstances which would have legitimized this stance, the principles of good governance and the legal standard outlined above, would necessitate that the residents be advised by NEPA of such circumstances. However no such consultation has been held. In this regard Justice Sykes notes in his ruling on Northern Jamaica Conservation Trust et al v NEPA et al (2005) that -
“The Court of Appeal in the UK has held that where a public body exercising a statutory function had made a promise and that such promise induced a legitimate expectation of a benefit that was substantive, any frustration of that expectation would be an abuse of power unless there was an overriding interest justifying the departure from what was expected”.
Therefore, since the legal standards exist; they should be used to guide the mode of operation by the State regulatory agencies, so that the current disparaging stance regarding the rights of the citizenry in having a say in the development process, can be addressed once and for all. Jamaica is a nation of laws and for the democracy to survive all parties are duty bound to show due deference to the law and not adopt anti-social postures which could ultimately undermine the principles upon which the Constitution is founded.
Disclaimer: The article above is not intended to constitute legal advice and therefore persons are encouraged to consult with an Attorney-at-Law before acting upon any of the legal issues outlined above.
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