A number of legislations has been passed in both Houses of Parliament this year to deal with issues such as sexual abuse and children and human rights.
The Sexual Offences Act 2009 was passed in March in the House of Representatives.
The Act is an amalgamation of various laws relating to rape, incest and other sexual offences. It will repeal the Incest (Punishment) Act and several provisions of the Offences Against the Person Act. The Bill also provides for the establishment of a Sex Offenders Registry, which will maintain a register of sex offenders.
Jamaica moved closer to meeting its international obligations in protecting the rights of its children, when the Senate passed the Child Pornography (Prevention) Bill in July, making commercial sexual exploitation of children a criminal offence.
The Bill will apply to the production, possession, importation, exportation and distribution of child pornography penalties of up to 20 years imprisonment and fines as high as $500,000.
Attorney General and Minister of Justice, Senator Dorothy Lightbourne, who tabled and piloted the measure through the Senate, noted that Jamaica’s laws have not kept pace with new technologies. She said that this Bill seeks to capture issues which have arisen in a digital environment which did not exist a few years ago.
Senator Lightbourne explained that even though child pornography has existed and was trafficked before the advent of the internet and related technology, such as digital cameras, scanners, and cellular phones, the internet has made the production and world wide distribution of vast amounts of this material simple and inexpensive.
The offences dealt with in the Bill include: visual presentations with children engaged in sexual activities; audio recordings or written material that has, as its dominant characteristic, the description, presentation or representation, for a sexual purpose, sexual activity with a child; and any visual representation, audio recording or written material that advocates or counsels sexual activity with a child.
In terms of human rights the House Representatives concluded debate on the new Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Bill with five amendments.
However, the Bill must remain on the table of the House for another three months, before the Constitutional changes included in the provisions can be approved. These will require a two-thirds majority vote, expected in mid-February, after which the Bill will be sent to the Senate for further deliberations.
Closing the debate, Prime Minister, the Hon. Bruce Golding, suggested that the issues on which members agreed, and which can be dealt with by Parliament, should be addressed and not allow the Charter to be further bogged down in the House.
“One of the things that we have to try to avoid is getting into a situation on some of those things that are being freshly introduced, which would prevent us from going forward… (even) if we have to bring another two bills, let us proceed to implement those things that can be done that require only a two-thirds majority in Parliament,” he urged.
The amendments approved included: clarifying sections dealing with the right to marriage; clarification on who is a citizen; protection from torture and inhumane treatment; the right to a fair hearing; and the right to have cases reviewed under certain circumstances.
The Charter of Rights Bill will repeal and replace chapter three of the Constitution and make provisions for life, liberty and security of individuals, freedom of expression, assembly and association, and respect for private and family life.
A Bill to amend the Jury Act, so as to enable the Registrar of the Supreme Court to make appropriate arrangements for the serving of summonses on jurors, was passed in the House of Representative in January.
The legislation, which will remove from the Commissioner of Police, the responsibility of serving such summonses, also seeks to widen the pool of persons from which jury lists may be compiled, to include holders of Taxpayer Registration Numbers (TRN). The jury age has also been increased from 65 years to 70 years.
A Bill to give effect to the Montreal Convention, which outlines certain rules relating to international carriage by air, was also passed in the House of Representatives.
In piloting the Bill, Minister of Transport and Works, Hon. Mike Henry, explained that the Convention, which was signed in Montreal on May 28, 1999, replaces the Warsaw Convention, as well as other related international legal instruments, and seeks to modernise the documentation relating to the international carriage of persons, baggage and cargo.
“It will provide a uniform system of liability in respect of damage sustained in the case of death or bodily injury of a passenger, or the destruction or loss or damage to baggage or cargo. It will also provide the jurisdiction in which action may be brought for the recovery of damages and compensation in respect of passengers, to include the place and the permanent residence of the passenger,” he added. The legislation will also repeal the Carriage by Air Montreal Convention Bill; the Carriage by Air Act of 1964 and the Carriage by Air Act 1932 of the United Kingdom.
Meanwhile, the Senate in April passed the Conch (Export Levy) Act, which, when enacted, will allow the Government to impose a duty on conch intended for the overseas market.
Exporters of conch will be required to pay US75 cents per pound of conch during the 2009 season and the levy will be increased to US$1.00 per pound in 2010.
“It is expected that in the first year, given the current allocation, that we should collect just under $60 million and thereafter, approximately $75 million, based on a 400 metric tonne quota allocation,” said the Minister without Portfolio in the Ministry of Finance and the Public Service, Senator the Hon Don Wehby, who moved the Bill through the Upper House.
He informed that the proceeds from the levy would go towards the establishment of the Fisheries Management and Development Fund, which is aimed at the sustainable management and development of the fisheries sector.
The fund is expected to offset the cost of implementing programmes for monitoring, control, surveillance and enforcement in relation to Jamaica’s limited conch resources. These programmes are expected to reduce illegal, unreported and unregulated fishing.
The Factories Amendment Bill, which increases the fines and penalties payable for breaching provisions of the Act, was also passed in the House of Representatives in June.
Minister of Labour and Social Security, Hon. Pearnel Charles, who piloted the Bill, explained that the Act regulates premises in which mechanical and manual powers are used in making and repairing any article for commercial purposes.
The Act also provides for the registration of factories; supervision of machinery used in factories; the approval of buildings to be used as factories; as well as the appointment of factory inspectors to enforce its provisions via inspections, investigations and prosecutions.
At present there are over 2,134 factories registered under the Act. It is, however, estimated that some 600 factories still remain unregistered and, therefore, able to avoid the watchdog functions of the Factory Inspectorate which falls under the legislation.
The fines for failure to file annual returns have been increased from $100 to $100,000. The fines for failure to exhibit a certificate of registration has increased from $100 to a sum not exceeding $60,000, and fines for factories not notifying the Ministry of accidents and industrial disease has moved from $100 to $300,000.
Also, the Senate approved amendments to the Income Tax Act, ratifying the past actions of the tax authorities in charging interest on unpaid taxes under Section 67 (5) of the Act.
The amendments expressly authorise the tax authority to charge interest on unpaid tax deemed to be assessed under Section 67 (5) of the Act, and to indemnify the tax authorities, who had responsibility for collecting the interest charged from legal action.
The Bill also seeks to bring certainty and clarity to the Income Tax Act, and this is in keeping with the overall mandate of the current tax reform, which is aimed at enhancing revenue collection through an equitable tax system.
Also, the Senate approved amendments to the Holidays with Pay Act, which will enable workers to take disputes concerning rights to leave and other holiday pay entitlements to the Resident Magistrate’s (RM) Courts.
The amendments were previously approved by the House of Representatives in September, where they were originally tabled by the Minister of Labour and Social Security, Hon. Pearnel Charles.
Minister of Justice and Attorney General, Senator the Hon. Dorothy Lightbourne, who piloted the Bill in the Senate, said that a glaring deficiency in the current Act, identified by the Ministry’s Pay and Conditions of Employment branch, was that there is no specific provision to allow aggrieved workers to take legal action in the RM Court against employers who refuse to pay them their legal entitlements for vacation and sick leave, as well as gratuity benefits.
She said that the Ministry had a number of complaints, annually, against employers in relation to the breaches. However, it has been able to deal with only about one-third of the cases as in the remaining cases employers steadfastly refuse to honour their obligations, or simply ignored the Ministry’s attempts to resolve the issues.
The amendments include a provision to give the workers right of action in the resident magistrates courts jurisdiction to frontally address the gap in the law.
There are also provisions increasing the mandatory fines for breaches of the Act because, according to the Ministry, the fines “do not reflect the current economic realities.”
The fines were increased from $250 to a maximum $250,000 for breaches relating to: holiday with pay, sick leave or sick benefits; contractual arrangements; and records.
The Act was also amended to allow the Resident Magistrate’s Court to hear claims arising from contract breaches covering up to a maximum of $500,000. The Minister will also now be able to vary and amend the fines, with the approval of Parliament.
The Registration (Strata Titles) was also approved in the Senate and the House of Representatives. The legislation, which was piloted by Prime Minister, the Hon. Bruce Golding, seeks to address several concerns surrounding the ownership of condominiums or apartment buildings, including payment of relevant fees.
The Bill seeks to amend the Registration Strata Titles Act to, among other things, establish a commission of strata corporations and to specify the duties of that commission and to create an implied covenant between a proprietor and a corporation that the proprietor or his heirs, will pay any outstanding charges owed to the corporation prior to a transfer. There are some 2,345 registered strata properties in Jamaica.
A Bill to amend the Constitution, to increase the maximum number of constituencies from 60 to 65, was also passed in the Senate in March 27.
Minister of Justice and Leader of Government Business, Senator Dorothy Lightbourne, who piloted the Bill, said that the country’s electoral population has grown tremendously, with approximately 1.3 million persons registered to vote.
She informed the Senate that the Constitution speaks to an upper limit and a lower limit, and that no constituency must be more than 50 per cent above the electoral quota and none less than two-thirds of the electoral quota.
“What we have now is that some constituencies are above the quota and some below. What we have are that some constituencies are very close to the upper limit, some have gone above, and some are too close to the lower limit,” she said.
The Minister added that, based on the current electoral quota of 22,270, the upper limit would be 31,815 and the lower limit 14,140.
“So, the Electoral Commission of Jamaica (ECJ) is now seeking to make adjustments,” Senator Lightbourne said.
The Justice Minister also noted that there was a need to avoid a “hung Parliament” after a General Election, due to the current even number of constituencies.
Even though the Constitution (Constituencies) Amendment Act 2009 was amended to increase the maximum number of constituencies from 60 to 65, the Electoral Commission (EC) will not at this stage consider more than 63, based on a bipartisan agreement at the ECJ level. The Bill was passed in the House of Representatives in March.
Meanwhile, members of the Senate, in July debated and passed a Bill entitled the Trade (Amendment) Act, 2009, which seeks to increase penalties applicable to breaches of the Trade Act.
The Trade Act provides for, among other things, the regulation of trade in goods, including the conditions of distribution, purchase and sale; and the importation and exportation, except under licence, of goods of any class or description.
Senator Lightbourne, who piloted the Bill, noted that penalties under the Trade Act have not been increased since 1976 and, as such, are not currently deemed adequately punitive, or an effective deterrent to offenders.
The Trade Act currently provides for fines ranging from a minimum of $200 to a maximum of $3,000, with custodial sentences not exceeding three months for breaches. The proposed amendments would see fines being increased to a maximum of $2 million, with custodial sentence increase to a maximum two years. The Bill was passed by the House of Representatives in June.
In terms of loans guarantee, the House of Representatives approved a guarantee for US $60 million to finance Phase 1A of the expansion programme at the Norman Manley International Airport.
The Lower House in March approved a Government guarantee of US$2.75 million, of a loan of US$5.5 million to the University of the West Indies (UWI), to partially finance the construction of a Vice Chancellery building on lands adjacent to the Mona Campus.
According to a Ministry Paper, which was tabled in the Lower House, the Vice Chancellery, comprising approximately 57,000 square feet, will be located on the orchard area south of the Queen’s Way entrance of the campus, adjoining the university’s College Common housing.
Prime Minister, the Hon. Bruce Golding, who moved the Resolution, stated that the interest of the Vice Chancellery was being compromised by the fact that it was “smothered into the Mona campus.”
He said it was for the purposes of providing the spacial requirements and “to ensure that there is a clear distinction between the responsibilities for Mona and the responsibilities for the regional management for the university that a new Vice Chancellery should be built.”
A Government guarantee for a loan of Euro 204.4 million from the Development Bank of Jamaica (DBJ) to the National Road Operating and Construction Company Limited (NROCC) was approved by the House of Representatives.
Minister of Finance and the Public Service, Hon. Audley Shaw, who moved the resolution, explained that the guarantee had become necessary because of the volatility in the global exchange rate, which had exposed NROCC and by extension, the DBJ, to very significant exchange losses in respect of the 204 million EURO loan that was secured by the previous Government from Bandes, Venezuela, to fund the operations of NROCC.
In addition, the Lower House approved in June a Government guarantee for loans valued at US$101.8 million to Air Jamaica Limited, in support of the funding requirements for its approved business plan for the financial year 2009/10.
According to a Ministry Paper tabled by Minister of Finance and the Public Service, Audley Shaw, Air Jamaica is now operating under a new business plan, which proposes to stabilise the airline and make it more attractive for divestment.
The objectives of the plan include refocussing the operations of the airline; resizing its fleet and increasing aircraft utilisation and productivity by a reduction in the size of the fleet from 15 to 9 aircrafts; and an increase in the average utilisation of aircrafts from eight hours to 10 hours per day.
The plan also projects net operational loss and transition cost equivalent of US$63.2 million for the 12-month period ending December 2009; and identifies a financing requirement equivalent to US$150 million - US$135 million for January to June and US$15 million for July to December 2009.
On another matter the Senate welcomed former Resident Magistrate, Marlene Malahoo Forte, as its newest member, after she was sworn in at Gordon House in July.
President of the Senate, the Hon. Oswald Harding, joined the members in welcoming Mrs. Malahoo Forte, adding that he looked forward to her contributions to the debates.