Wed | Aug 23, 2017

Matondo Mukulu | Rights can be proportionately infringed

Published:Sunday | February 19, 2017 | 2:00 AM

Like some persons who read Ian Boyne's article in The Sunday Gleaner (of January 8 and January 15 this year, in which he called for the suspension of some of our constitutional rights in Jamaica's fight against crime, I was compelled to ask the simple question: Has it come to that point where the State must turn against its own in its quest to save itself?

As I wrestled with that question, I was compelled to go back to our nation's Constitution, as I was troubled with another question: Can we achieve what Mr Boyne advocates while not destroying our Constitution?

The starting position, my friends, is to remind ourselves of some of the primary features of our Constitution, as it is by considering its features that we can truly seek to reconcile the competing arguments. The first feature is that the rights are, in effect divided, into two categories. The first are those rights that are termed absolute rights and secondly those rights which are limited.

An absolute right, such as the right to life and the right prohibiting torture, is one which cannot be infringed by the State, on the basis of it being 'demonstrable justified'. A limited right, on the other hand, such as our right to liberty, right to a fair trial and the right to marry and found a family, are those rights that can be restricted by the State in expressed circumstances. Thus, we note that the right to liberty, according to Section 14 of the Constitution, can be limited if any of the specified circumstances obtain. So a person who has an infectious disease can be detained by the State and the right to marry is restricted by a definition that only includes a union between a female and a male.

A third, and for the purpose of this discussion, a very important feature of our constitution is the fact that, Section 13(2) sets out a very broad provision that can be used to form the basis for a restriction placed on our rights. Thus, it is said, in essence, that the rights outlined at Section 13(2) of the Constitution shall be enjoyed by all and should not be infringed by the State, "... save only as a may be demonstrably justified in a free and democratic society".

This short and oftentimes forgotten provision offers, to an extent, the answer to Mr Boyne's critics. What we have here is a provision that confers on the State a right to encroach on our human rights, and one does not have to be an anti-bleeding heart liberal, to see the virtue and purpose behind such a provision. In that, there will come a time in a country when the rights that citizens enjoy, the qualified ones, must be infringed upon and curtailed.

 

MUST BE DEMONSTRABLU JUSTIFIED

 

However, the Constitution does say, Mr Boyne, that this must only be done where it can be shown to be demonstrably justified in a free and democratic society. To this end, we remind ourselves that our recent constitutional and political history (under the pre-2011 Constitution) has witnessed the curtailment of the right to liberty, during the Tivoli incursion or siege of May 2010, and, of course, this was done as the governor general proclaimed, in accordance with Section 26(4) of the Constitution that there was a state of public emergency.

On that occasion, limits were placed on the right to liberty of the affected citizens, but only to the extent that such limitations were demonstrably justified in our free and democratic society. Therefore, it is correct to say to Mr Boyne that the restrictions for which he contends in his article, or at least as I understood him, have already been attempted, and the verdict seems to have been, when one reads the report of the Tivoli Commission, that there were instances of rights abuse that went beyond what was demonstrably justified.

 

PROPORTIONALITY

 

On the other hand, I am equally perplexed by those persons who give the impression that all rights are absolute. Our Constitution does not prescribe all the rights as being absolute. In fact, I would suggest that the real debate that Mr Boyne has raised is that of whether we have now come to that point in our constitutional history when we need to ask ourselves, is the test of a lawful infringement too low?

I raise this question as a proposed state infringement or restriction on a right can easily be shown to be demonstrably justified in a democratic society such as ours, while the tool or mechanism used to achieve that justified objective might be disproportionate. In illustrating this point, we cast our minds to May 2010 when most persons thought that the State had to take action in respect of serving the extradition warrant on Christopher Coke, as it appeared that there was a threat to the safety of others. Hence without question, the restrictions placed on our liberties could be said to be demonstrably justified.

However, there was equally nothing in our Constitution that was there to guide the brave men and women of our security forces on the question of the extent to which they must go. In other words, when will the hammer be too much?

This is a serious concern, as if we construe 'demonstrably justified' to mean necessary, it is quite easy to think of instances where an infringement of a right to a fair hearing or liberty can be deemed to be necessary. If the test is only one of necessity, the State will always get its way, as the court will ask the simple question: Was the infringement demonstrably justifiable? This will not be a hard thing for a State to answer.

Boyne's critics, and those of us who are committed to the idea of Jamaica, do no justice to this important debate if we fail to advocate and call for the balancing of the demonstrably justified test, with an amendment that says that any restriction, albeit a justified one, must be shown to be a proportionate one. This is the language of modern constitutional and human-rights jurisprudence in a state within the Commonwealth where there are proposed state infringements to cherished liberties. In essence, the principle of proportionality, at its most basic, requires a State to set out or ensure that it uses the least intrusive infringement tool, without compromising or foregoing its legitimate objective.

We do not preserve our commitment to human rights by merely highlighting the failings of the past or paying lip service to the real threat that crime poses to our way of life. Mr Boyne's suggestion, borne out of understandable frustration, might not be the solution, but his postulations offer us a golden opportunity to see how best we can use the modern constitutional principle of proportionality in our fight against crime.

That's the real debate that human-rights advocates need to be encouraging as it presses Mr Boyne to fashion a progressive approach that helps in the fight against crime, without destroying the nation's Constitution.

- Matondo K. Mukulu, a former public defender in Jamaica, is a practising public-law barrister and attorney. Email feedback to columns@gleanerjm.com and kamaumukulu@yahoo.com.